09-000018 Huberto Merayo, M.D. vs. Department Of Financial Services, Division Of Workers` Compensation, Office Of Medical Services
 Status: Closed
Recommended Order on Wednesday, June 17, 2009.


View Dockets  
Summary: Petitioner proved by a preponderance of the evidence that his treatment of workers' compensation claimant was not excessive and was medically necessary. Recommend that the employer/carrier reimburse Petitioner for disallowed charges.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8HUBERT MERAYO, M.D., )

12)

13Petitioner, )

15)

16vs. ) Case No. 09-0018

21)

22DEPARTMENT OF FINANCIAL )

26SERVICES, DIVISION OF WORKERS' )

31COMPENSATION, OFFICE OF MEDICAL )

36SERVICES, )

38)

39Respondent. )

41_________________________________)

42RECOMMENDED ORDER

44Pursuant to notice, a formal hearing was held in this case

55on February 23, 2009, by video teleconference, with the parties

65appearing in Miami, Florida, before Patricia M. Hart, a duly-

75designated Administrative Law Judge of the Division of

83Administrative Hearings, who presided in Tallahassee, Florida.

90APPEARANCES

91For Petitioner: Edward F. DeVarona, Esquire 1

98DeVarona & Arango

1012150 Coral Way, Fourth Floor

106Miami, Florida 33145

109For Respondent: Mari H. McCully, Esquire

115Department of Financial Services

119Division of Workers' Compensation

123200 East Gaines Street

127Tallahassee, Florida 32399-4229

130STATEMENT OF THE ISSUE

134Whether the Petitioner is entitled to reimbursement for

142charges billed to a workers' compensation insurance carrier for

151medical services rendered to an injured employee/claimant,

158pursuant to Section 440.13, Florida Statutes (2007). 2

166PRELIMINARY STATEMENT

168In a Workers' Compensation Medical Services Reimbursement

175Dispute Determination ("Determination") dated November 13, 2008,

184the Department of Financial Services, Division of Workers'

192Compensation, Office of Medical Services ("Department"),

200notified Dr. Humberto Merayo, M.D., that the Department had

209determined that Dr. Merayo was not entitled to reimbursement

218from Sedgwick Claims Management Services ("Sedgwick CMS"), a

228workers' compensation insurance carrier, for psychiatric medical

235services rendered to M.P., a workers' compensation claimant

243("Claimant"), on April 11, 2007; August 21, 2007; October 16,

2552007; December 11, 2007; and January 22, 2008. In the

265Determination, the Department concluded that the medical

272services provided on those dates constituted over-utilization,

279and that payment to Dr. Merayo for services performed on those

290dates was properly disallowed by Sedgwick CMS for these dates of

301service. The Department did, however, find that the medical

310services provided on September 18, 2007, for which Sedgwick CMS

320had also disallowed payment, did not constitute over-utilization

328and that Dr. Merayo was entitled to reimbursement for those

338services.

339Dr. Merayo timely filed a Petition for Administrative

347Hearing with respect to the Determination, and the Department

356transmitted the matter to the Division of Administrative

364Hearings for assignment of an administrative law judge. On

373January 16, 2009, the Department filed a Motion for Notice and

384Opportunity to Join an Indispensable Party, in which it

393identified Sedgwick CMS as a person whose substantial interests

402would be determined in the instant case. An Order Requiring

412Notice to Indispensable Party was entered on February 6, 2009,

422and, on February 9, 2009, the Department sent a Notice of

433Litigation to Sedgwick CMS. Sedgwick did not file a petition to

444intervene and is, therefore, not a party to these proceedings,

454although it did send an attorney to observe the final hearing.

465Pursuant to notice, the final hearing was held on February 23,

4762009.

477On February 20, 2009, Dr. Merayo and the Department filed a

488Joint Pre-Hearing Stipulation, which included a list of

496witnesses and exhibits, as well as an extensive recitation of

506facts to which the parties stipulated. At the hearing,

515Dr. Merayo testified in his own behalf but offered no exhibits.

526The Department presented the testimony of Welby Cox-Myers and

535Anna Ohlson; Respondent's Exhibits 1 and 3 through 7 were

545offered and received into evidence. Mr. DeVarona, who, as noted

555in endnote 1, appeared at the final hearing without having filed

566a notice of appearance as required by Florida Administrative

575Code Rule 28-106.105 and who apparently was not involved in

585preparing the Joint Pre-Hearing Stipulation, entered a hearsay

593objection to Petitioner's Exhibits 3 and 6 pursuant to

602Section 120.57(1)(c), Florida Statutes ("Hearsay evidence may be

611used for the purpose of supplementing or explaining other

620evidence, but it shall not be sufficient in itself to support a

632finding unless it would be admissible over objection in civil

642actions.").

644Petitioner's Exhibit 3 consists of the transmittal letter,

652Statement, and "EMA Report" of Norman D. Guthrie, M.D., an

662expert medical advisor ("EMA") appointed by the Department;

672Petitioner's Exhibit 6 consists of documents submitted to the

681Department by Sedgwick CMS. At the final hearing, the

690undersigned accepted Petitioner's Exhibits 3 and 6 subject to

699the limitation on the use of hearsay in Section 120.57(1)(c),

709Florida Statutes, and gave the Department leave to depose

718Dr. Guthrie and file the deposition transcript in lieu of

728Dr. Guthrie's live testimony, as a late-filed exhibit.

736On March 6, 2009, the Department filed a Motion for

746Reconsideration Regarding Admission of "EMA Report"; Dr. Merayo

754filed a response in opposition to the motion. After a

764telephonic hearing was held on the motion, the undersigned

773reversed her ruling at the final hearing and, on March 17, 2009,

785entered an Order Granting Motion to Reconsider Ruling; Accepting

794EMA Report in Lieu of Live Testimony; and Granting Leave to

805Petitioner to Depose EMA. The Order contains a full explanation

815of the rationale for the decision on reconsideration, but, in

825brief, the rationale for the ruling is as follows: Dr. Guthrie

836was identified in the parties' Joint Pre-Hearing Stipulation as

845a witness in the proceeding, appearing "via EMA Report" and, on

856this basis, the EMA Report was received into evidence as non-

867hearsay evidence. 3 Even though he was given leave in the

878March 17, 2009, Order to depose Dr. Guthrie regarding the EMA

889Report, he apparently did not do so since no deposition

899transcript has been filed with the Division of Administrative

908Hearings.

909The one-volume transcript of the proceedings was filed with

918the Division of Administrative Hearings on March 12, 2009, and

928the parties timely filed proposed findings of fact and

937conclusions of law. On April 3, 2009, the day after Dr. Merayo

949filed his proposed findings of fact and conclusions of law, the

960Department filed a Motion to Strike Petitioner's Proposed

968Findings of Law and Fact or Alternative Relief. In the motion,

979the Department pointed out alleged errors of fact, statements

988with which the Department disagrees, and statements allegedly

996not supported by the record contained in Dr. Merayo's proposed

1006findings of fact and conclusions of law. The Department

1015requested that all such errors and statements be stricken, or,

1025in the alternative, that the Department's motion be accepted as

1035a response to Dr. Merayo's submittal.

1041It is the responsibility of the undersigned to review the

1051record of a proceeding and to make findings of fact and

1062conclusions of law based exclusively on that record. Although

1071the undersigned always considers the proposed findings of fact

1080and conclusions of law submitted by the parties, any proposal

1090that is not supported by the record is rejected as a matter of

1103course. It is, therefore, unnecessary to strike portions of a

1113party's proposals, and the Department's Motion to Strike

1121Petitioner's Proposed Findings of Law and Fact is denied.

1130A response to a party's proposed findings of fact and

1140conclusions of law is not expressly permitted by statute or

1150rule, although one may be permitted by order of the

1160administrative law judge, upon a showing of good cause. The

1170Department's motion does not establish good cause for permitting

1179a response to Dr. Merayo's Proposed Findings of Law and Fact.

1190The Department's Proposed Recommended Order sufficiently states

1197the Department's position on the issue presented in this case,

1207and further argument would not assist the undersigned in the

1217preparation of the Recommended Order. The Department's

1224alternative request that its motion be accepted as a response to

1235Dr. Merayo's Proposed Findings of Law and Fact is denied. The

1246proposed findings of fact and conclusions of law of both parties

1257have been considered in the preparation of this Recommended

1266Order.

1267FINDINGS OF FACT

1270Based on the oral and documentary evidence presented at the

1280final hearing and on the entire record of this proceeding,

1290including the pertinent portions of the stipulations of fact

1299contained in Section VI of the Joint Pre-Hearing Stipulation,

1308the following findings of fact are made:

13151. The Department is the state agency responsible for

1324resolving reimbursement disputes involving health care providers

1331and workers' compensation insurance carriers and employers

1338("employer/carrier"). See §§ 440.13(7) and (11)(c), Fla. Stat. 4

13492. The dispute resolution process is initiated when a

1358health care provider files a petition with the Department

1367contesting the decision of an employer/carrier to disallow or

1376adjust payment to the health care provider for services provided

1386to an injured worker/claimant. The petition must be accompanied

1395by documentation supporting the allegations in the petition; if

1404the documentation is not complete, the Department is to dismiss

1414the petition. See § 440.13(7)(a), Fla. Stat. The

1422employer/carrier is then required to submit a response to the

1432petition to the Department, together with all documentation

1440supporting its decision to disallow or adjust the health care

1450provider's reimbursement requests. See § 440.13(7)(b), Fla.

1457Stat.

14583. After review of the documentation submitted by the

1467provider and the employer/carrier, the Department must determine

1475whether the employer/carrier properly disallowed or adjusted

1482payment to the health care provider, and it must provide a

1493written determination setting out its decision. See

1500§ 440.13(7)(c), Fla. Stat.

1504Procedure followed by the Department in resolving reimbursement

1512dispute at issue in this proceeding

15184. The reimbursement dispute at issue herein arose after

1527Sedgwick CMS, a workers' compensation insurance carrier, issued

1535through its agent an Explanation of Bill Review and a First

1546Notice of Disallowance dated April 16, 2008, notifying

1554Dr. Merayo of its decision to disallow reimbursement for medical

1564services he provided to the Claimant on April 11, 2007,

1574August 21, 2007, September 18, 2007, October 16, 2007,

1583December 11, 2007, and January 22, 2008, on the grounds that

1594there had been over-utilization; specifically, Sedgwick CMS

1601stated that it had based its decision with regard to those dates

1613on its conclusion that that the treatment Dr. Merayo had

1623provided the Claimant on those dates was excessive and/or not

1633medically necessary.

16355. After receiving the First Notice of Disallowance from

1644Sedgwick CMS, Dr. Merayo initiated the dispute resolution

1652process when he timely filed with the Department a Petition for

1663Resolution of Reimbursement Dispute ("Reimbursement Dispute

1670Petition") dated May 16, 2008. Dr. Merayo requested in the

1681Reimbursement Dispute Petition that the Department resolve the

1689dispute between him and Sedgwick CMS regarding reimbursement for

1698psychiatric services that he rendered to the Claimant on the

1708dates identified in the First Notice of Disallowance.

1716Dr. Merayo attached to the Reimbursement Dispute Petition

1724documentation including medical records for the Claimant, and

1732Sedgwick CMS timely submitted a response to the Reimbursement

1741Dispute Petition, together with extensive medical and other

1749records related to the Claimant.

17546. Among the records submitted to the Department by

1763Sedgwick CMS were reports of two psychiatric independent medical

1772examinations of the Claimant, both conducted in 1999, and peer

1782review reports completed by three psychiatrists in

1789December 2007, January 2008, and February 2008. Department

1797personnel reviewed the documents submitted by Dr. Merayo and by

1807Sedgwick CMS, including the two independent medical examination

1815reports and the three peer review reports.

18227. After reviewing the documentation, Department personnel

1829determined that, because there was no consensus among the

1838physicians conducting the peer reviews regarding the frequency,

1846duration, or intensity of services for the medical management of

1856the Claimant's psychiatric needs, an EMA should review the

1865documentation and provide guidance to Department personnel in

1873resolving the reimbursement dispute.

18778. As authorized by Section 440.13(9)(f), Florida

1884Statutes, the Department referred the matter to Dr. Guthrie, a

1894psychiatrist certified by the Department as an EMA pursuant to

1904Section 440.13(9)(a), Florida Statutes, and requested that he

1912prepare a report regarding the medical necessity for the

1921treatment Dr. Merayo provided the Claimant on the dates for

1931which Sedgwick CMS had denied reimbursement. The Department

1939indicated that all documents contained in its records would be

1949provided to Dr. Guthrie and that, if he required additional

1959documentation, he should immediately contact the Department.

1966Dr. Guthrie submitted his report to the Department on

1975November 3, 2008.

19789. The Department based its Determination that there was

1987over-utilization of Dr. Merayo's medical services on

1994April 11, 2007, August 21, 2007, October 16, 2007, December 11,

20052007, and January 22, 2008, on a review of the documentation

2016submitted, "specifically the carrier-obtained peer review report

2023prepared by Dr. Sinakin [sic] and response from the Expert

2033Medical Advisor." It based its decision that there was no over-

2044utilization by Dr. Merayo on September 18, 2007, on

2053Dr. Guthrie's EMA Report.

2057Claimant's relevant medical history and independent medical

2064examination reports prior to her treatment by Dr. Merayo 5

207410. The Claimant suffered injuries to her back as a result

2085of an employment-related accident on December 29, 1997.

2093Sedgwick CMS authorized psychiatric evaluation and treatment for

2101the Claimant in April 1999, which she received from the Center

2112for Occupational Psychiatry of Florida. The Claimant was

2120diagnosed by Dr. Noel Delgadillo in 1999 as suffering from

2130adjustment disorder and disorder of chronic pain, and he

2139recommended treatment, with maximum medical improvement expected

2146within six months. The Claimant received psychiatric medical

2154services involving group and individual therapy and medication

2162prescriptions and management from Dr. Delgadillo's associate,

2169Dr. Angel Diaz, and employees of the Center for Occupational

2179Psychiatry of Florida.

218211. Sedgwick CMS ordered a psychiatric independent medical

2190examination of the Claimant, which was conducted on July 23,

22001999, by Dr. Marilu Sabas. Dr. Sabas diagnosed the Claimant

2210as suffering from "adjustment disorder," and she opined that

2219the Claimant's symptoms were "the direct result of the

2228accident . . . and the subsequent physical pain and emotional

2239stress."

224012. On October 1, 1999, Dr. Diaz determined that the

2250Claimant reached maximum medical improvement and assigned a

2258permanent impairment rating of five percent.

226413. Sedgwick CMS ordered a second independent medical

2272examination, which was conducted on October 20, 1999, by

2281Dr. Anastasio Castiello. In Dr. Castiello's opinion, the

2289Claimant "presented the clinical picture of an individual

2297manifesting the exaggerated elements of a personality disorder

2305and her actual representation is tailored to the circumstances

2314of the litigation." Dr. Castiello concluded that, "under the

2323circumstances, a recommendation for further psychiatric

2329intervention is not clinically warranted."

233414. Sedgwick CMS continued to authorize Dr. Diaz to

2343provide psychiatric evaluation and treatment in the form of

2352group and individual psychotherapy, together with medication

2359prescriptions and management until December 2004, when

2366Sedgwick CMS authorized Dr. Merayo to provide psychiatric

2374treatment to the Claimant.

2378Dr. Merayo's treatment of the Claimant

238415. Dr. Merayo is a board-certified psychiatrist who has

2393treated patients suffering from work-related injuries for more

2401than 10 years.

240416. In December 2004, Dr. Merayo diagnosed the Claimant as

2414suffering from major depressive disorder, recurrent and severe,

2422without psychotic features, and he recommended continued group

2430and individual psychotherapy, which was authorized by

2437Sedgwick CMS and which she received from the Merayo Medical Arts

2448Group. Dr. Merayo initiated an aggressive medication treatment

2456regimen for the Claimant and conducted individual psychotherapy

2464sessions. The Claimant also attended group therapy sessions led

2473by members of Dr. Merayo's group.

247917. On August 23, 2005, Dr. Merayo opined that the

2489Claimant had reached maximum medical improvement, and he

2497assigned her a permanent impairment rating of 15 percent.

2506Dr. Merayo also opined that the Claimant was unable to work due

2518to her compensable injury.

252218. In 2006, Dr. Merayo conducted nine individual

2530psychotherapy sessions, approximately one every six weeks, and

2538the Claimant also participated in 30 group therapy sessions.

254719. At the end of 2006, Dr. Merayo was notified by

2558Sedgwick CMS that it would not authorize further group therapy

2568sessions, and, beginning in January 2007, the Claimant received

2577only individual psychotherapy and medication management reviews

2584from Dr. Merayo.

258720. Dr. Merayo conducted monthly individual psychotherapy

2594sessions with the Claimant in 2007, for a total of 12 sessions,

2606and in January, February, and March 2008. Sedgwick CMS paid

2616Dr. Merayo for the individual psychotherapy sessions he

2624conducted in January, February, March, May, June, July, and

2633November 2007 and February 2008. Sedgwick CMS did, however,

2642advise Dr. Merayo in the April 16, 2008, First Notice of

2653Disallowance that it considered the services provided on

2661July 18, 2007, November 13, 2007, and February 22, 2008, to be

2673excessive, not reasonable, and medically unnecessary. The

2680treatment Dr. Merayo provided the Claimant on the dates at issue

2691herein was no different from the treatment provided on the dates

2702for which Dr. Merayo received reimbursement.

270821. On the dates at issue herein, Dr. Merayo documented

2718his individual psychotherapy sessions with the Claimant on a

2727form entitled "Progress Notes," which consisted primarily of a

2736checklist of items that he completed during the sessions,

2745including observations on such things as appearance, behavior,

2753attitude toward examiner, speech, mood, affect, perceptions,

2760thought process, thought content, orientation, and the type of

2769therapy provided. The form had blank spaces for Dr. Merayo to

2780enter the Claimant's subjective complaints, stressors, and

2787functioning, testing done, side effects of medication, and

2795referrals and interventions.

279822. Dr. Merayo's notes of the Claimant's individual

2806psychotherapy sessions on the dates at issue indicate that the

2816Claimant consistently complained of chronic pain in her back and

2826legs, of anxiety, and of difficulty sleeping. 6 The Claimant's

2836diagnosis of major depression, recurrent and severe, remained

2844the same throughout the time period at issue, and, at each

2855psychotherapy session, Dr. Merayo prescribed medications for

2862insomnia, depression, and anxiety.

286623. Specifically, Dr. Merayo prescribed Restoril,

2872Wellbutrin, Effexor, and Klonopin at the Claimant's

2879psychotherapy sessions on April 11, 2007, and on August 12,

28892007. As discussed in more detail below, Dr. Merayo substituted

2899Ambien and Vistaril for the Restoril on October 16, 2007, 7 and he

2912prescribed these two new medications, together with Wellbutrin,

2920Effexor, and Klonopin, in December 2007 and January 2008. 8 On

2931December 11, 2007, Dr. Merayo increased the dosage of

2940Wellbutrin, an antidepressant, from 150 milligrams to

2947300 milligrams because the Claimant was exhibiting increasing

2955depression.

295624. In Dr. Merayo's opinion, prescribing only a month's

2965supply of medications at each monthly visit was the safest

2975procedure for the Claimant. If a patient is taking only one

2986antidepressant and is otherwise doing well, it is appropriate to

2996conduct a medication review for that patient every three months.

3006The Claimant's case was complex, however, because she was taking

3016four or five medications at any given time, including two

3026benzodiazepines and two antidepressants. In Dr. Merayo's

3033medical judgment, even though there was no indication that the

3043Claimant misused the medications or had any side effects, it was

3054necessary that he conduct medication management reviews for the

3063Claimant every month and prescribe only a 30-day supply of

3073medications because of the number and nature of the medications.

308325. Dr. Merayo noted in his Progress Notes on the dates at

3095issue that the Claimant's ego defenses were weak and that her

3106recent memory was not very sharp. Dr. Merayo was particularly

3116concerned about the Claimant because her weak ego defenses

3125indicated possible regression.

312826. At the Claimant's psychotherapy session on October 16,

31372007, Dr. Merayo decided to substitute Ambien and Vistaril for

3147Restoril because he was concerned about the possible addictive

3156effects of Restoril and because of his concern that Restoril was

3167related to the Claimant's declining recent memory. Dr. Merayo

3176also noted in his Progress Notes for the October 16, 2007,

3187psychotherapy session that the Claimant complained of pain all

3196over her body and expressed frustration that she was not getting

3207any better.

320927. The Claimant's treatment plan, consisting of cognitive

3217behavior therapy, supportive therapy, coping skills, and anxiety

3225control, remained unchanged on the dates at issue, and

3234Dr. Merayo indicated in the Progress Notes for each of the

3245psychotherapy sessions that the Claimant's condition was the

3253same. On all of the dates at issue except for October 16, 2007,

3266Dr. Merayo checked the box on the Progress Notes specifying that

3277the Claimant's progress toward the treatment goals was between

328630 percent and 40 percent; on October 16, 2007, Dr. Merayo

3297checked the box on the Progress Notes specifying that the

3307Claimant's progress toward the treatment goals was between

331520 percent and 30 percent. There are, however, no treatment

3325goals stated in any of the Progress Notes.

333328. Additionally, the observations Dr. Merayo recorded on

3341the Progress Notes for almost all of the dates at issue

3352indicated that the Claimant's appearance was casual 9 ; her

3361behavior was quiet and needy; her eye contact was fair; her

3372attitude toward Dr. Merayo was cooperative; her speech was

3381spontaneous; her mood was depressed and anxious; her affect was

3391labile; her thought process was goal oriented; her thought

3400content was logical 10 ; she was not suicidal; her orientation was

"3411OK"; her consciousness was alert; her sleep was "OK"; her

3421appetite was "OK"; her libido was low; her concentration was

3431poor; her attention was good; her judgment was fair; and her

3442coping skills were fair.

344629. In Dr. Merayo's opinion, the appropriate treatment for

3455the Claimant, or any patient with her diagnosis, is medication

3465management and psychotherapy. Dr. Merayo described the Claimant

3473as a person who is in need of psychotherapy because of her

3485diagnosis and explained that she needed the 45 minutes allotted

3495for each of her monthly psychotherapy sessions on the dates at

3506issue. In Dr. Merayo's opinion, the Claimant was regressing

3515during the time period covering the dates at issue and required

3526psychotherapeutic intervention for chronic mental illness to

3533avoid moving from major depression to exhibiting psychotic

3541features.

354230. In his years of medical practice, Dr. Merayo has

3552observed that patients having the Claimant's diagnosis and

3560amount of medication often end up in the hospital if they go for

3573too long a period without being seen. Dr. Merayo acknowledged,

3583however, that many patients probably do not need the level of

3594service he provided to the Claimant after reaching maximum

3603medical improvement and that most patients could be adequately

3612treated with 25-minute psychotherapy sessions conducted less

3619frequently than those he conducted with the Claimant.

362731. In Dr. Merayo's opinion as a board-certified

3635psychiatrist, the quality, quantity, and duration of medical

3643care that he provided to the Claimant on each of the dates at

3656issue were medically reasonable and necessary in order to

3665prevent the Claimant from regressing and to provide her with

3675psychotherapy that she needed and that provided her relief. He

3685was aware of no guidelines setting forth the frequency and

3695intensity of psychiatric services to be provided to a claimant

3705after a declaration of maximum medical improvement except the

3714sound medical judgment of the health care provider.

372232. Notwithstanding the reimbursement dispute at issue

3729herein, Dr. Merayo was authorized by Sedgwick CMS to provide

3739psychiatric treatment to the Claimant at the time of the final

3750hearing.

3751EMA Report

375333. Dr. Guthrie was appointed by the Department as an

3763expert medical advisor to render an opinion as to the medical

3774necessity/over-utilization issues presented in the reimbursement

3780dispute between Sedgwick CMS and Dr. Merayo. In its Order

3790Referring Matter for Expert Medical Advisor Review, the

3798Department requested that Dr. Guthrie assist in resolving the

3807reimbursement dispute by specifically answering the following

3814question:

3815Whether the type, intensity and duration of

3822the evaluation and treatment provided on

3828April 11, 2007, August 21, 2007,

3834September 18, 2007, October 16, 2007,

3840December 11, 2007, and January 22, 2008, are

3848consistent with the medically necessary

3853standard of care for the clinical problem(s)

3860documented by the Petitioner in the medical

3867record of the Injured Employee? Please

3873identify the standard(s) of care that

3879support the opinion provided.

388334. Dr. Guthrie submitted his EMA Report on November 3,

38932008, and he listed the documents he reviewed in an appendix to

3905the report. The documents listed by Dr. Guthrie were all those

3916submitted to the Department by Sedgwick CMS and by Dr. Merayo

3927regarding the medical services provided to the Claimant since

3936the date of her injury in 1997. Dr. Guthrie did not examine the

3949Claimant in the course of preparing his EMA Report.

395835. In his report, Dr. Guthrie opined "within a reasonable

3968degree of medical certainty" that reimbursement for the

3976psychotherapy sessions conducted by Dr. Merayo with the Claimant

3985on April 11, 2007, August 21, 2007, September 18, 2007,

3995October 16, 2007, December 11, 2007, and January 22, 2008,

4005should be disallowed by Sedgwick CMS because these psychotherapy

4014sessions "would not be expected to be necessary." 11 Dr. Guthrie

4025noted, however, that, in his opinion, Sedgwick CMS should

4034reimburse Dr. Merayo for the psychotherapy session conducted

4042September 18, 2007, because "if all three of those visits

4052[August, September, and October] are disallowed, then there

4060would be a four month gap from July to November without adequate

4072follow-up." 12

407436. Dr. Guthrie stated the basis for his opinion in

4084pertinent part as follows:

4088Typically, following a declaration of

4093maximum medical improvement, it is

4098anticipated that the frequency and to some

4105degree, the intensity of therapeutic

4110treatments would gradually decrease with the

4116ultimate expectation that therapeutic

4120follow-ups (which might include simply

4125medication management or at times, might

4131necessarily include medication management

4135plus individual therapy of a supportive

4141nature) would be necessary on an every two

4149to three month basis, requiring at most,

4156four to six such appointments per year.

4163* * *

4166Given what would be considered a more

4173typical need to treatment following a

4179declaration of maximum medical improvement,

4184it would be anticipated that during the

4191year 2007, there would typically need to be

4199four follow-up appointments unless some

4204extraordinary situation developed. No such

4209extraordinary situation is discernable from

4214Dr. Merayo's records.

421737. Dr. Guthrie summarized his opinion as follows:

4225Therefore, given the expectation of follow-

4231up care requiring four to at most six

4239appointments per year subsequent to an [sic]

4246maximum medical improvement declaration, it

4251is my opinion, within a reasonable degree of

4259medical certainty, that Dr. Merayo's

4264continued monthly appointments of forty-five

4269minutes duration suggest a pattern of over-

4276utilization of services, . . . . [ 13 ]

4286Dr. Guthrie also observed:

4290From the clinical status of the

4296claimant/patient indicated in Dr. Merayo's

4301notes, it is clear that she has continued to

4310struggle emotionally and with chronic pain

4316despite aggressive treatment provided by

4321Dr. Merayo. It is quite possible that his

4329pattern of over-utilization has been in an

4336attempt to assist an ill patient; however,

4343given his declaration of maximum medical

4349improvement on August 23, 2005, we are left

4357with no other conclusion than a pattern of

4365over-utilization.

4366Summary

436738. The evidence presented by Dr. Merayo is sufficient to

4377establish with the requisite degree of certainty that he should

4387be reimbursed for medical services he provided the Claimant on

4397April 11, 2007; August 21, 2007; October 16, 2007; December 11,

44082007; and January 22, 2008. For reasons discussed in more

4418detail below in the Conclusions of Law, the opinions of

4428Dr. Merayo and Dr. Guthrie are the only evidence presented on

4439which a determination of the medical necessity of the Claimant's

4449monthly psychotherapy and medical management sessions with

4456Dr. Merayo can be based. After consideration of all of the

4467creditable evidence, Dr. Merayo's opinion is accepted as more

4476persuasive and more grounded in the medical needs of the

4486Claimant than the opinion of Dr. Guthrie.

449339. Dr. Guthrie's opinion was not based on an articulated

"4503medically necessary standard of care for the clinical

4511problem(s) documented by the Petitioner in the medical record of

4521the Injured Employee," as required by the Department when it

4531referred the reimbursement dispute to Dr. Guthrie, 14 nor did

4541Dr. Guthrie identify an established standard of care for

4550psychiatric treatment of a patient with problems similar to the

4560Claimant's. Rather, Dr. Guthrie's opinion was based on the

"4569expectation" that, after a patient is found to have reached

4579maximum medical improvement, the number of psychotherapy and

4587medication management sessions would decrease to a maximum of

4596four to six sessions per year, at a frequency of once every two

4609to three months. In reaching his opinion regarding the

4618frequency of psychotherapy and medication management review

4625sessions that Dr. Merayo should have provided the Claimant,

4634Dr. Guthrie imposed a standard that reflected "a more typical

4644need" for treatment after maximum medical improvement of four

4653sessions annually, but he never refers to the source of this

4664standard of "typical need."

466840. In addition, there is only one reference to the

4678medical necessity of monthly treatments for the Claimant, given

4687her clinical problems and the complexity of her medications, in

4697the Conclusion and Opinion section of Dr. Guthrie's EMA report.

4707In that reference, Dr. Guthrie acknowledged that the Claimant

4716continued to struggle with emotional issues and chronic pain and

4726that the frequency of Dr. Merayo's psychotherapy sessions with

4735the Claimant may have been "in an attempt to assist an ill

4747patient." 15 Nonetheless, because of the "expectation" regarding

4755the frequency of treatment after a declaration of maximum

4764medical improvement to which he referred in his report,

4773Dr. Guthrie found that, regardless of the Claimant's need for

4783treatment, he "is left with no other conclusion than a pattern

4794of over-utilization" based solely on Dr. Merayo's having

4802declared that the Claimant attained maximum medical improvement

4810in August 2005. 16

481441. In the absence of reference by Dr. Guthrie to an

4825established practice parameter, a protocol of treatment, or a

4834standard of care for a psychiatrist treating a patient with a

4845diagnosis, symptoms, and medications similar to those of the

4854Claimant to support the opinion expressed in his EMA report, the

4865opinion expressed in Dr. Guthrie's EMA Report is rejected.

4874Dr. Merayo's testimony that the frequency and duration of his

4884psychotherapy and medication management review sessions with the

4892Claimant were, in his medical judgment, medically necessary to

4901avoid deterioration of the Claimant's mental state and her

4910possible lapse into psychotic features is accepted.

4917CONCLUSIONS OF LAW

492042. The Division of Administrative Hearings has

4927jurisdiction over the subject matter of this proceeding and of

4937the parties thereto pursuant to Sections 120.569 and 120.57(1),

4946Florida Statutes (2008).

4949Statutory scheme relating to payment of health care providers

4958under Chapter 440, Florida Statutes .

496443. Section 440.13, Florida Statutes, governs the

4971provision of medical services and supplies to injured workers

4980covered by Florida's workers' compensation laws.

4986Section 440.13(2)(a), Florida Statutes, requires an employer,

4993usually, as in this case, through a workers' compensation

5002insurance carrier, to provide "medically necessary remedial

5009treatment, care, and attendance" to an injured worker.

5017Section 440.13(14)(a), Florida Statutes, provides that an

5024employer/carrier need only pay for medical services rendered by

"5033a health care provider certified and authorized to provide

5042remedial treatment, care, or attendance" under Chapter 440,

5050Florida Statutes, and notes that health care "providers have

5059recourse against the employer or carrier for payment for

5068services rendered in accordance with this chapter."

507544. Carriers are required in Section 440.13(6), Florida

5083Statutes, to

5085review all bills, invoices, and other claims

5092for payment submitted by health care

5098providers in order to identify

5103overutilization and billing errors,

5107including compliance with practice

5111parameters and protocols of treatment

5116established in accordance with this chapter,

5122and may hire peer review consultants or

5129conduct independent medical evaluations.

5133Such consultants, including peer review

5138organizations, are immune from liability in

5144the execution of their functions under this

5151subsection to the extent provided in

5157s. 766.101. If a carrier finds that

5164overutilization of medical services or a

5170billing error has occurred, or there is a

5178violation of the practice parameters and

5184protocols of treatment established in

5189accordance with this chapter, it must

5195disallow or adjust payment for such services

5202or error without order of a judge of

5210compensation claims or the department, if

5216the carrier, in making its determination,

5222has complied with this section and rules

5229adopted by the department.

5233Such reviews are referred to as utilization reviews, and the

5243statute contemplates that the decision by an employer/carrier to

5252disallow or adjust payment to health care providers, if reached

5262in compliance with the governing statutes and rules, is self-

5272executing. 17

527445. As set forth in the findings of fact herein,

5284Sedgwick CMS determined that the services Dr. Merayo provided to

5294the Claimant on the dates at issue constituted "overutilization

5303and/or inappropriate utilization since the treatment has been

5311excessive and not medically necessary." 18 It based this

5320determination on reports submitted by its medical consultants,

5328including the three peer review reports it received in late 2007

5339and early 2008.

534246. The Legislature has provided a means by which a health

5353care provider can contest an employer/carrier's decision to

5361disallow or adjust payment for medical services because of over-

5371utilization. 19 Section 440.13(7), Florida Statutes, permits a

5379health care provider to petition the Department to resolve the

5389reimbursement dispute and provides as follows:

5395(a) Any health care provider, carrier, or

5402employer who elects to contest the

5408disallowance or adjustment of payment by a

5415carrier under subsection (6) must, within

542130 days after receipt of notice of

5428disallowance or adjustment of payment,

5433petition the department to resolve the

5439dispute. The petitioner must serve a copy

5446of the petition on the carrier and on all

5455affected parties by certified mail. The

5461petition must be accompanied by all

5467documents and records that support the

5473allegations contained in the petition.

5478Failure of a petitioner to submit such

5485documentation to the department results in

5491dismissal of the petition. [ 20 ]

5498(b) The carrier must submit to the

5505department within 10 days after receipt of

5512the petition all documentation

5516substantiating the carrier's disallowance or

5521adjustment. Failure of the carrier to

5527timely submit the requested documentation to

5533the department within 10 days constitutes a

5540waiver of all objections to the petition.

5547(c) Within 60 days after receipt of all

5555documentation, the department must provide

5560to the petitioner, the carrier, and the

5567affected parties a written determination of

5573whether the carrier properly adjusted or

5579disallowed payment. The department must be

5585guided by standards and policies set forth

5592in this chapter, including all applicable

5598reimbursement schedules, practice

5601parameters, and protocols of treatment, in

5607rendering its determination.

5610(d) If the department finds an improper

5617disallowance or improper adjustment of

5622payment by an insurer, the insurer shall

5629reimburse the health care provider,

5634facility, insurer, or employer within 30

5640days, subject to the penalties provided in

5647this subsection.

5649(e) The department shall adopt rules to

5656carry out this subsection. The rules may

5663include provisions for consolidating

5667petitions filed by a petitioner and

5673expanding the timetable for rendering a

5679determination upon a consolidated petition.

5684(f) Any carrier that engages in a pattern

5692or practice of arbitrarily or unreasonably

5698disallowing or reducing payments to health

5704care providers may be subject to one or more

5713of the following penalties imposed by the

5720department:

57211. Repayment of the appropriate amount to

5728the health care provider.

57322. An administrative fine assessed by the

5739department in an amount not to exceed $5,000

5748per instance of improperly disallowing or

5754reducing payments.

57563. Award of the health care provider's

5763costs, including a reasonable attorney's

5768fee, for prosecuting the petition.

5773Burden of proof

577647. Under the statutory scheme set out in

5784Section 440.13(7), Florida Statutes, a health care provider can

5793bring a reimbursement dispute to the Department by filing a

5803petition contesting the decision of an employer/carrier to

5811disallow or adjust payment to the health care provider for

5821medical or other covered services provided to a workers'

5830compensation claimant. Thus, in this case, Dr. Merayo initiated

5839the reimbursement-dispute resolution process when he filed a

5847petition with the Department contesting Sedgwick CMS's decision

5855regarding reimbursement reflected in the First Notice of

5863Disallowance. Accordingly, Dr. Merayo, as a health care

5871provider who is asserting entitlement to reimbursement for

5879medical services he provided to the Claimant on the dates at

5890issue, has the burden of proving by a preponderance of the

5901evidence that the medical services he provided on the dates at

5912issue do not constitute over-utilization and were medically

5920necessary. See Department of Transp. v. J.W.C. Co., Inc. , 396

5930So. 2d 778, 785-87; Balino v. Dep't of Health & Rehab. Servs. ,

5942348 So. 2d 349 (Fla. 1st DCA 1977); The Biscayne Inst. v. Agency

5955for Health Care Admin. , DOAH Case Nos. 03-1837, 03-1838, and 03-

59663890 (Recommended Order June 15, 2004), adopted in toto in AHCA

5977Final Order 04-0420-FOF-OLC, November 1, 2004.

5983Nature of this Proceeding

598748. As in all proceedings conducted pursuant to

5995Section 120.57(1), Florida Statutes, the administrative

6001proceeding is de novo . § 120.57(1)(k), Fla. Stat. Consequently

"6011the purpose of this proceeding is to formulate final agency

6021action, not to simply review the preliminary/proposed agency

6029action embodied in the . . . [Department's] determination

6038letter." CNA Ins. Cos. v. Agency for Health Care Admin. , DOAH

6049Case No. 01-4147, para. 97 (Recommended Order August 26, 2002).

605949. Additionally, as in all proceedings conducted pursuant

6067to Section 120.57(1), the parties must present evidence in the

6077form of documents and testimony at the final hearing to support

6088their respective positions on the issue(s) to be resolved, and

6098this evidence forms the record upon which the findings of fact

6109of the administrative law judge must be based. See

6118. exclusively on the evidence of record and on matters

6128officially recognized."). Finally, as in all proceedings

6136conducted pursuant to Section 120.57(1), Florida Statutes, the

6144use of hearsay evidence is limited by Section 120.57(1)(c),

6153Florida Statutes, which provides: "Hearsay evidence may be used

6162for the purpose of supplementing or explaining other evidence,

6171but it shall not be sufficient in itself to support a finding

6183unless it would be admissible over objection in civil actions."

6193Department's role in proceedings pursuant to Section 120.57(1),

6201Florida Statutes, initiated to challenge the Department's

6208determination in a reimbursement dispute

621350. Identifying the Department's role in the instant

6221administrative proceeding is complicated by Sedgwick CMS's

6228failure, after proper notification, to petition to intervene as

6237a party in this proceeding. Dr. Merayo initiated this

6246administrative proceeding pursuant to Section 120.57(1), Florida

6253Statutes, by filing a Petition for Administrative Hearing to

6262challenge the November 13, 2008, Determination of the Department

6271that he was not entitled to payment for medical services

6281provided to the Claimant on the dates at issue, but the

6292controversy is not one between Dr. Merayo and the Department.

6302The real parties in interest in this matter are Dr. Merayo and

6314Sedgwick CMS, and the dispute to be resolved in the instant

6325proceeding is whether Dr. Merayo is entitled to reimbursement

6334from Sedgwick CMS. See Furtick v. William Shults Contr. , 664

6344So. 2d 288, 290 (Fla. 1st DCA 1995)("The health care provider

6356(or facility) and the employer/carrier are the parties with the

6366legal interest affected by utilization review. . . .

6375Reimbursement disputes within the scope of utilization review

6383must thus be pursued as between the provider (or facility) and

6394the employer/carrier in the administrative forum.")(Citation

6401omitted.) Consequently, the Department has no legal interest in

6410the outcome of the dispute between Dr. Merayo and Sedgwick CMS.

6421Its role in reimbursement disputes pursuant to

6428Section 440.13(7), Florida Statutes, is that of an adjudicator,

6437not an advocate.

644051. The Department should, therefore, have, at most,

6448merely a nominal role in an administrative proceeding before the

6458Division of Administrative Hearings relating to a reimbursement

6466dispute between a health care provider and an employer/carrier.

6475In footnote 4 of its Motion for Notice and Opportunity to Join

6487an Indispensable Party filed January 16, 2009, the Department

6496acknowledged that it has no interest in the outcome of a

6507workers' compensation reimbursement dispute and is only a

6515nominal party in reimbursement disputes because, pursuant to

6523Section 440.13(7), Florida Statutes, it must issue a

6531determination of whether a workers' compensation insurance

6538carrier properly disallowed or adjusted reimbursement requests

6545from a health care provider. In this case, however,

6554Sedgwick CMS chose not to intervene as a party in this

6565proceeding. Because the Department's Determination supported

6571Sedgwick CMS's decision to disallow payment to Dr. Merayo for

6581the treatment provided on the dates at issue, the Department

6591must, by default, stand in the shoes of Sedgwick CMS and defend

6603Sedgwick CMS's decision to disallow payment to Dr. Merayo for

6613the dates at issue as an advocate for Sedgwick CMS's decision.

6624Cf. Specialty Risk Services v. AHCA , DOAH Case No. 01-4148,

6634n. 10, (Recommended Order January 9, 2003)("Because the Agency

6644is effectively a nominal party in reimbursement disputes between

6653the provider and the employer/carrier, it should have no

6662particular interest in the outcome of the proceeding. However,

6671because of the provider's failure to intervene to defend her

6681billings in this case, the Agency assumed that responsibility by

6691default along with the resulting litigations costs that likely

6700exceed the amounts in dispute."). The Department must,

6709therefore, carry Sedgwick CMS's burden to produce evidence on

6718which findings of fact in support of its decision to disallow

6729reimbursement to Dr. Merayo can be based. 21

673752. The Department's role as advocate in this proceeding

6746places it in a difficult position with respect to its ability to

6758present creditable evidence to defend Sedgwick CMS's decision to

6767disallow reimbursement to Dr. Merayo for medical services

6775provided on the dates at issue. The statutory scheme in

6785Section 440.13(7), Florida Statutes, contemplates that the

6792Department will carry out its role as the adjudicator of a

6803reimbursement dispute by reviewing the documents provided by the

6812health care provider and the employer/carrier. In this case,

6821the Department reviewed the documents provided by Dr. Merayo and

6831by Sedgwick CMS, including two independent medical examination

6839reports completed in 1999 and three peer review reports

6848completed in late 2007 prepared at the request of Sedgwick CMS.

685953. As noted in the findings of fact above, the Department

6870ordered an EMA Report because the physician reports included in

6880the documentation were inconclusive regarding the proper

6887utilization of the medical services on the dates at issue, but

6898it expressly stated in its Determination that it relied

6907specifically on the peer review report of Dr. Sinaikin and on

6918the EMA Report in making the determination that Dr. Merayo was

6929not entitled to reimbursement for medical services provided on

6938the dates at issue herein. The Department's reliance on

6947Dr. Sinaikin's peer review report in its role as adjudicator is

6958entirely proper pursuant to Section 440.13(7), Florida Statutes.

6966The Department, in its role as an advocate in the instant

6977proceeding, cannot, however, rely on the independent medical

6985examination and peer review reports included in the documents

6994submitted by Sedgwick CMS as evidence that can, of itself,

7004support findings of fact in this Recommended Order.

701254. The EMA Report prepared by Dr. Guthrie was admitted

7022into evidence in lieu of Dr. Guthrie's live testimony, and it is

7034the only direct evidence presented by the Department in support

7044of Sedgwick CMS's decision to disallow payment to Dr. Merayo for

7055medical services provided on the dates at issue. None of the

7066physicians providing the peer review reports submitted to the

7075Department by Sedgwick CMS testified at the final hearing, nor

7085was their testimony offered by deposition transcript.

7092Dr. Sinaikin's peer review report, and all of the documents

7102provided to the Department by Sedgwick CMS, are, therefore,

7111hearsay and cannot form the basis for findings of fact in this

7123Recommended Order. 22

712655. The Department takes the position in its Proposed

7135Recommended Order that all of the documents submitted by

7144Dr. Merayo and by Sedgwick CMS are, in essence, "business

7154records" of the Department and, therefore, may form the basis

7164for findings of fact in this Recommended Order because they fall

7175within the business record exception to the hearsay rule found

7185in Section 90.803(6), Florida Statutes (2008). The Department

7193argues in its Proposed Recommended Order that

7200any and all medical records and

7206documentation submitted to the Department by

7212either the Petitioner or the Carrier become

7219business records upon which the Department

7225is required by law to rely upon in rendering

7234Determination in a reimbursement dispute,

7239pursuant to 440.13(7), Florida Statutes, and

7245are therefore admissible as non-hearsay

7250evidence upon which the Department and the

7257Administrative Law Judge must base findings

7263of fact - regardless of whether the contents

7271of such documents constitute "out-of-court

7276statements of fact. [ 23 ]

7282The Department also cites to Florida Administrative Code

7290Rule 69L-31.011, in support of this argument, which provides in

7300pertinent part: "The evidentiary record upon which the

7308Department's determination will be made shall be the Petition

7317for Resolution of Reimbursement Dispute Form and all supporting

7326documents and records accompanying the petition and the

7334Carrier's Response to Petition for Resolution of Reimbursement

7342Dispute Form and all accompanying documents." The Department

7350has, however, confused its role as advocate on Sedgwick CMS's

7360behalf in the instant administrative proceeding under

7367Section 120.57(1), Florida Statutes, and its role as adjudicator

7376in reimbursement disputes under Section 440.13(7), Florida

7383Statutes.

738456. Section 90.803(6), Florida Statutes, provides, in

7391pertinent part, that records of regularly conducted business

7399activity are admissible as an exception to the hearsay rule, as

7410follows:

7411(a) A memorandum, report, record, or data

7418compilation, in any form, of acts, events,

7425conditions, opinion, or diagnosis, made at

7431or near the time by, or from information

7439transmitted by, a person with knowledge, if

7446kept in the course of a regularly conducted

7454business activity and if it was the regular

7462practice of that business activity to make

7469such memorandum, report, record, or data

7475compilation, all as shown by the testimony

7482of the custodian or other qualified witness,

7489. . . . The term "business" as used in this

7500paragraph includes a business, institution,

7505association, profession, occupation, and

7509calling of every kind, whether or not

7516conducted for profit.

751957. The court in Jackson v. State , 738 So. 2d 382, 386

7531(Fla. 4th DCA 1999), held that "[i]n order to be admissible, a

7543business record pursuant to section 90.803(6)(a) must be shown

7552to have been: 1. Made at or near the time of the event; 2. By

7567or from information transmitted by a person with knowledge;

75763. Kept in the course of a regularly conducted business

7586activity; and 4. That it was the regular practice of that

7597business to make such a record."

760358. In this case, the Department's witness testified that

7612the Petition for Resolution of Reimbursement Dispute and

7620supporting documents, the Carrier's Response to Petition for

7628Resolution of Reimbursement Dispute and supporting documents,

7635and the EMA Report are the documents upon which the Department

7646relied in reaching its determination in the reimbursement

7654dispute between Dr. Merayo and Sedgwick CMS. This testimony is

7664insufficient to lay the foundation for the admission of the

7674documents provided the Department by Sedgwick CMS as business

7683records of the Department.

768759. The Department did not create any of the documents

7697that were submitted to it by Sedgwick CMS; it merely compiled

7708and reviewed these documents in its role as an adjudicator under

7719the procedures set forth in Section 440.13(7), Florida Statutes.

7728None of the Department's employees have personal knowledge of

7737the facts and opinions included in the documents submitted by

7747Sedgwick CMS, and the documents were not created by persons

7757employed by the Department in the course of a regularly

7767conducted activity of the Department. Consequently, even though

7775they are in the file of this case maintained by the Department,

7787the documents provided to the Department by Sedgwick CMS are not

7798business records of the Department and cannot be used as the

7809basis for findings of fact in this Recommended Order pursuant to

7820Section 120.57(1)(c), Florida Statutes.

782460. In addressing the issue of documents in the file of

7835state agency that are offered into evidence in an administrative

7845proceeding, Professor Charles W. Ehrhardt states:

7851Records of state agencies that are

7857admissible under Section 90.803(6) may be

7863relied upon to supply the sole evidence upon

7871which the administrative law judge may base

7878a finding of fact. Frequently, an employee

7885of the agency will appear at the hearing

7893with the agency's complete file, which is

7900offered as an exhibit. In a series of

7908opinions, the First District has apparently

7914determined that the files will be admissible

7921under Section 90.803(6) if the employee's

7927testimony demonstrates that the files are

7933those of the state agency and that an agency

7942employee had personal knowledge of the facts

7949contained in each document in the file. For

7957example, while the agency employee could

7963testify to matters within her knowledge and

7970her agency files, she could not lay the

7978foundation for an affidavit from a private

7985employer contained in the file because she

7992would have no personal knowledge of the

7999facts contained in the affidavit.

8004Charles W. Ehrhardt, Florida Evidence § 803.6c (2009

8012edition.)(Footnotes omitted.)

801461. For these reasons, the findings of fact herein are

8024based on the testimony of Dr. Merayo, on the EMA Report prepared

8036by Dr. Guthrie and received in lieu of his live testimony, on

8048the testimony of the Department's witnesses, and on the agreed

8058facts in the parties' Joint Pre-Hearing Stipulation. 24

8066Reimbursement dispute

806862. Sedgwick CMS based its decision to disallow payment to

8078Dr. Merayo for the medical services provided on the dates at

8089issue herein on its determination that Dr. Merayo's services

8098constituted over-utilization and that the treatment provided by

8106Dr. Merayo on the dates at issue was excessive and not medically

8118necessary. The following definitions, set forth in

8125Section 440.13(1), Florida Statutes, are relevant to resolving

8133the reimbursement dispute:

8136(k) "Instance of overutilization" means a

8142specific inappropriate service or level of

8148service provided to an injured employee that

8155includes the provision of treatment in

8161excess of established practice parameters

8166and protocols of treatment established in

8172accordance with this chapter.

8176(l) "Medically necessary" or "medical

8181necessity" means any medical service or

8187medical supply which is used to identify or

8195treat an illness or injury, is appropriate

8202to the patient's diagnosis and status of

8209recovery, and is consistent with the

8215location of service, the level of care

8222provided, and applicable practice

8226parameters. The service should be widely

8232accepted among practicing health care

8237providers, based on scientific criteria, and

8243determined to be reasonably safe. The

8249service must not be of an experimental,

8256investigative, or research nature.

8260* * *

8263(o) "Pattern or practice of

8268overutilization" means repetition of

8272instances of overutilization within a

8277specific medical case or multiple cases by a

8285single health care provider.

8289* * *

8292(t) "Utilization review" means the

8297evaluation of the appropriateness of both

8303the level and the quality of health care and

8312health services provided to a patient,

8318including, but not limited to, evaluation of

8325the appropriateness of treatment,

8329hospitalization, or office visits based on

8335medically accepted standards. Such

8339evaluation must be accomplished by means of

8346a system that identifies the utilization of

8353medical services based on practice

8358parameters and protocols of treatment as

8364provided for in this chapter.

836963. Based on the findings of fact herein, Dr. Merayo has

8380met his burden of proving by a preponderance of the evidence

8391that the medical services he provided to the Claimant on

8401April 11, 2007, August 21, 2007, October 16, 2007, December 11,

84122007, and January 22, 2008, did not constitute over-utilization,

8421that his treatment was not excessive, and that the services were

8432medically necessary. 25

8435RECOMMENDATION

8436Based on the foregoing Findings of Fact and Conclusions of

8446Law, it is RECOMMENDED that the Department of Financial Services

8456enter a final order requiring Sedgwick CMS to remit payment to

8467Huberto Merayo, M.D., for medical services he provided the

8476Claimant on April 11, 2007; August 21, 2007; September 18,

84862007 26 ; October 16, 2007, December 11, 2007; and January 22,

84972008, in accordance with the rates established in the applicable

8507Health Care Provider Reimbursement Manual.

8512DONE AND ENTERED this 17th day of June, 2009, in

8522Tallahassee, Leon County, Florida.

8526___________________________________

8527PATRICIA M. HART

8530Administrative Law Judge

8533Division of Administrative Hearings

8537The DeSoto Building

85401230 Apalachee Parkway

8543Tallahassee, Florida 32399-3060

8546(850) 488-9675 SUNCOM 278-9675

8550Fax Filing (850) 921-6847

8554www.doah.state.fl.us

8555Filed with the Clerk of the

8561Division of Administrative Hearings

8565this 17th day of June, 2009.

8571ENDNOTES

85721 / Mr. DeVarona appeared on behalf of Dr. Merayo at the final

8585hearing without having filed a notice of appearance with the

8595Division of Administrative Hearings or, apparently, having

8602notified the Respondent. It is noted that counsel of record in

8613this case are Mario R. Arango and Adrienne L. Hausser, attorneys

8624associated with Mr. DeVarona's law firm.

86302 / All references herein to the Florida Statutes are to the 2007

8643edition unless otherwise indicated.

86473 / The Department did not request reconsideration of the ruling

8658at the final hearing receiving into evidence the documents

8667provided by Sedgwick CMS, subject to Dr. Merayo's hearsay

8676objection and the limitations to the use of hearsay evidence

8686stated in Section 120.57(1)(c), Florida Statutes. It is noted

8695that the documents comprising Respondent's Exhibit 6 were listed

8704as an exhibit in the parties' Joint Pre-Hearing Stipulation, and

8714no objection to the admissibility of the documents was included

8724in that document. While the parties clearly contemplated in the

8734Joint Pre-Hearing Stipulation that Dr. Guthrie's EMA Report

8742would be received into evidence in lieu of his testimony and

8753treated as non-hearsay evidence, the parties' intent with

8761respect to the Sedgwick CMS documents cannot be so clearly

8771discerned from their merely being listed as an exhibit in the

8782Joint Pre-Hearing Stipulation.

8785Even without an objection in the Joint Pre-Hearing

8793Stipulation, the documents in Respondent's Exhibit 6 remain

8801hearsay evidence and their use is limited by operation of

8811Section 120.57(1)(c), Florida Statutes. Professor Charles W.

8818Ehrhardt explains the effect of the statutory limitation on the

8828use of hearsay in administrative proceedings as follows:

8836Section 120.57(1)(c) specifically provides

8840that hearsay may be used to supplement or

8848explain other evidence, but it is not

8855sufficient by itself to support a finding of

8863fact unless the evidence "would be

8869admissible over objection in civil actions."

8875This rule, which has been rejected by most

8883jurisdictions, has been recently referred to

8889as "a recognized, if widely criticized,

8895principle of review of administrative

8900decisionmaking that goes by the name of the

8908'residuum rule.'" All agency findings must

8914be supported by "competent, substantial

8919evidence." There is disagreement as to

8925whether unobjected to hearsay is sufficient

8931to support a finding. Although the statute

8938is silent on the issue, most Florida cases

8946hold that where there is no objection to the

8955hearsay, even when the party does not appear

8963at the hearing, it cannot be the sole

8971evidence to support a finding.

8976Charles W. Ehrhardt, Florida Evidence § 103.2 (2009

8984edition.)(Footnotes omitted.) Of course, the Progress Notes to

8992which Dr. Merayo referred in his testimony and which were

9002included in the documents provided to the Department by

9011Sedgwick CMS are non-hearsay evidence by virtue of Dr. Merayo's

9021testimony regarding their contents.

90254 / Section 440.13(1)(h), Florida Statutes, defines "health care

9034provider" in pertinent part as "a physician or any recognized

9044practitioner who provides skilled services pursuant to a

9052prescription or under the supervision of direction of a

9061physician and who has been certified by the department as a

9072health care provider. . . ." Section 440.13(1)(c), Florida

9081Statutes, defines "carrier" as an insurance carrier, self-

9089insurance fund or individually self-insured employer, or

9096assessable mutual fund."

90995 / The facts found in this section of the Recommended Order are

9112derived from the stipulated facts in the parties' Joint Pre-

9122Hearing Stipulation.

91246 / The only significant additional complaint noted in

9133Dr. Merayo's Progress Notes was in the Progress Notes of the

9144session held on August 21, 2007, which was a previously-

9154scheduled monthly appointment. In addition to her usual

9162complaints about chronic pain, the Claimant reported at this

9171session that her father had died the night before. There is

9182nothing further in the notes of the August 21, 2007, session to

9194indicate that the Claimant's appearance, behavior, attitude,

9201speech, mood, affect, perceptions, thought process, thought

9208content, or orientation differed from her presentation during

9216the other psychotherapy sessions at issue.

92227 / Dr. Merayo also testified that the medication was changed on

9234September 18, 2007, and the conflict in dates is not resolved in

9246the record.

92488 / Dr. Merayo added a prescription for Prevacid for the Claimant

9260on April 11, 2007, for possible gastritis and upset stomach

9270because the Claimant had complained at several visits of stomach

9280pain. At some point, he ceased prescribing this medication

9289because the Claimant was referred to a gastroenterologist for

9298treatment of her stomach pain.

93039 / Dr. Merayo checked the box on the Progress Notes for the

9316December 11, 2007, session indicating that the Claimant's

9324appearance was "unkempt and disheveled." Respondent's

9330Exhibit 6.

933210 / Dr. Merayo noted on April 11, 2007, that the Claimant's

9344thought content also exhibited "preoccupations" and "worries."

9351Respondent's Exhibit 6.

935411 / Respondent's Exhibit 3 at page 9.

936212 / Respondent's Exhibit 3 at page 9.

937013 / Dr. Guthrie also discussed the intensity of the

9380psychotherapy treatment and noted that "[t]ypically, follow-up

9387visits after maximum medical improvement can be managed with

9396sessions of twenty to twenty-five minutes maximum. Forty-five

9404minute appointments suggest a pattern of over-utilization."

9411Respondent's Exhibit 3 at page 9. There is nothing in the

9422Sedgwick CMS letter dated April 16, 2008, First Notice of

9432Disallowance of Claims that indicated that Sedgwick CMS

9440considered 45-minute psychotherapy sessions to be excessive, and

9448the Department did not address this issue in its Determination.

9458The length of the session is not, therefore, an issue in this

9470proceeding.

947114 / Respondent's Exhibit 4.

947615 / Respondent's Exhibit 4.

948116 / Respondent's Exhibit 4.

948617 / There is no suggestion by Dr. Merayo that Sedgwick CMS

9498deviated from the requirements of law in issuing its First

9508Notice of Disallowance.

951118 / Respondent's Exhibit 5.

951619 / It is noted that Section 440.13(8)(a), Florida Statutes,

9526provides as follows:

9529Carriers must report to the department all

9536instances of overutilization including, but

9541not limited to, all instances in which the

9549carrier disallows or adjusts payment or a

9556determination has been made that the

9562provided or recommended treatment is in

9568excess of the practice parameters and

9574protocols of treatment established by this

9580chapter. The department shall determine

9585whether a pattern or practice of

9591overutilization exists.

9593Pursuant to Section 440.13(8)(b), Florida Statutes, the

9600Department is authorized to impose sanctions against a health

9609care provider that it has determined engaged in a pattern or

9620practice of over-utilization. There is nothing in the record of

9630this proceeding to establish that the Department has made a

9640determination of over-utilization pursuant to Section 440.13(8),

9647Florida Statutes; rather, the Department's Determination in this

9655case refers only to over-utilization with respect to the

9664reimbursement dispute between Dr. Merayo and Sedgwick CMS.

967220 / One of the Department's witnesses testified that Dr. Merayo

9683failed to include with his petition treatment notes for the

9693services provided on the dates in question herein, which should

9703have resulted in the dismissal of his petition pursuant to

9713Section 440.13(7)(a). Nonetheless, the Department conducted its

9720documentation review because the necessary medical records were

9728included in the response of Sedgwick CMSanscript at

9736pages 183, 179.

973921 / It is critical that the distinction in the Department's

9750roles as adjudicator and advocate be recognized because the

9759Department sometimes finds itself in the position of having to

9769defend as an advocate a determination it made as an adjudicator

9780pursuant to Section 440.13(7), Florida Statutes, in favor of a

9790party that chooses not to appear in the administrative

9799proceeding conducted under Section 120.57(1), Florida Statutes.

980622 / A review of the peer review reports leads to the conclusion

9819that the opinions stated therein do not "supplement or explain"

9829the opinions expressed in Dr. Guthrie's EMA Report. The EMA

9839Report was prepared after the peer review reports so they cannot

"9850explain" Dr. Guthrie's opinions, and the peer review reports

9859were among the documents reviewed by Dr. Guthrie in the

9869formulation of the opinions he stated in the EMA Report so they

9881cannot "supplement" Dr. Guthrie's opinions.

988623 / Respondent's Proposed Recommended Order, para. 76.

989424 / It is noted that, in all of the workers' compensation

9906reimbursement cases decided by the Division of Administrative

9914Hearings, the employer/carrier has appeared as a party, either

9923by filing a petition for an administrative hearing or by filing

9934a petition to intervene. In these cases, the employer/carrier

9943generally offers into evidence at least the transcript of the

9953deposition testimony of the physicians preparing the peer review

9962reports and the independent medical examination reports upon

9970which the employer/carrier has based its decision to disallow

9979reimbursement to a health care provider. The Department should

9988not be expected to make the expenditures necessary to procure

9998the attendance or deposition testimony of such expert witnesses

10007in a proceeding in which it is required, by default, to defend

10019the decision of an employer/carrier to disallow reimbursement to

10028a health care provider. An employer/carrier that chooses not to

10038appear as a party in a reimbursement dispute before the Division

10049of Administrative Hearings does so at its peril because its

10059interests will be determined by the final order entered by the

10070Department in such a case.

1007525 / Dr. Guthrie's opinion to the contrary is not presumed to be

10088correct pursuant to Section 440.13(9)(c), Florida Statutes,

10095because that statute contemplates an action before a judge of

10105compensation claims: "The opinion of the expert medical advisor

10114is presumed to be correct unless there is clear and convincing

10125evidence to the contrary as determined by the judge of

10135compensation claims."

1013726 / Even though the treatment provided by Dr. Merayo on

10148September 18, 2007, was not an issue in this administrative

10158proceeding, this date of service should be included in the

10168Department's final order based on the Department's Determination

10176that payment for treatment provided on this date did not

10186constitute over-utilization.

10188COPIES FURNISHED:

10190Mari H. McCully, Esquire

10194Department of Financial Services

10198Division of Workers` Compensation

10202200 East Gaines Street

10206Tallahassee, Florida 32399-4229

10209Mario R. Arango, Esquire

10213DeVarona & Arango

102162150 Coral Way, Fourth Floor

10221Miami, Florida 33145

10224Tracey Beal, Agency Clerk

10228Department of Financial Services

10232200 East Gaines Street

10236Tallahassee, Florida 32399-0390

10239Benjamin Diamond, General Counsel

10243Department of Financial Services

10247The Capitol, Plaza Level 11

10252Tallahassee, Florida 32399-0307

10255Honorable Alex Sink

10258Chief Financial Officer

10261Department of Financial Services

10265The Capitol, Plaza Level 11

10270Tallahassee, Florida 32399-0307

10273NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

10279All parties have the right to submit written exceptions

10288within 15 days from the date of this recommended order. Any

10299exceptions to this recommended order should be filed with the

10309agency that will issue the final order in this case.

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Date
Proceedings
PDF:
Date: 02/24/2010
Proceedings: Agency Final Order
PDF:
Date: 02/24/2010
Proceedings: Opinion filed.
PDF:
Date: 02/24/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 02/24/2010
Proceedings: BY ORDER OF THE COURT: Appellant`s motion filed November 25, 2009, for clarification is denied filed.
PDF:
Date: 02/24/2010
Proceedings: Respondent`s Exceptions to Recommended Order filed.
PDF:
Date: 11/25/2009
Proceedings: Department's Motion for Clarification filed.
PDF:
Date: 11/20/2009
Proceedings: Opinion
PDF:
Date: 07/22/2009
Proceedings: Petition for Review of a Non-Final Action by an Administrative Law Judge filed.
PDF:
Date: 07/01/2009
Proceedings: Petitioner's Exceptions to Recommended Order filed.
PDF:
Date: 06/17/2009
Proceedings: Recommended Order
PDF:
Date: 06/17/2009
Proceedings: Recommended Order (hearing held February 23, 2009). CASE CLOSED.
PDF:
Date: 04/03/2009
Proceedings: Respondent`s Motion to Strike Petitioner`s Proposed Findings of Law and Fact or Alternative Relief filed.
PDF:
Date: 04/02/2009
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 03/24/2009
Proceedings: Proposed Findings of Law and Fact filed.
PDF:
Date: 03/17/2009
Proceedings: Order Granting Motion to Reconsider Ruling; Accepting EMA Report in Lieu of Live Testimony; and Granting Leave to Petitioner to Depose EMA.
PDF:
Date: 03/16/2009
Proceedings: Notice of Cancellation of Deposition filed.
Date: 03/16/2009
Proceedings: CASE STATUS: Motion Hearing Held.
Date: 03/12/2009
Proceedings: Transcript filed.
PDF:
Date: 03/12/2009
Proceedings: Notice of Filing Transcript filed.
PDF:
Date: 03/12/2009
Proceedings: Petitioner`s Response to Motion for Consideration Regarding Admission of the Ema Report and Notice of Objection to Communication of Respondent`s Counsel to Ema, Dr. Gutherie, in Violation of Court Order filed.
PDF:
Date: 03/11/2009
Proceedings: Request for Judicial Notice and Notice of Filing Additional Authority filed.
PDF:
Date: 03/06/2009
Proceedings: Motion for Reconsideration regarding Admission of "Ema Report" filed.
PDF:
Date: 03/02/2009
Proceedings: Notice of Taking Telephonic Deposition filed.
PDF:
Date: 02/27/2009
Proceedings: Motion for Extension of Time for Taking Deposition filed.
PDF:
Date: 02/24/2009
Proceedings: Notice of Filing Proof of Service filed.
Date: 02/23/2009
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/20/2009
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 02/18/2009
Proceedings: Motion for Leave to File Pre-trial Stipulations and Memorandum of Law filed.
PDF:
Date: 02/09/2009
Proceedings: Notice of Litigation filed.
PDF:
Date: 02/06/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/06/2009
Proceedings: Notice of Hearing by Video Teleconference (hearing set for February 23, 2009; 1:00 p.m.; Miami and Tallahassee, FL).
PDF:
Date: 02/06/2009
Proceedings: Order Requiring Notice to Interested Party.
PDF:
Date: 01/16/2009
Proceedings: Motion for Notice and Opportunity to Join an Indispensable Party filed.
PDF:
Date: 01/13/2009
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 01/13/2009
Proceedings: Petitioner`s Response to Order of the Division Dated January 6, 2009 (documents not available for viewing) filed.
PDF:
Date: 01/08/2009
Proceedings: Notice of Re-filing filed.
PDF:
Date: 01/06/2009
Proceedings: Initial Order.
PDF:
Date: 01/05/2009
Proceedings: Workers` Compensation Medical Services Reimbursement Dispute Determination filed.
PDF:
Date: 01/05/2009
Proceedings: Petition for Administrative Hearing filed.
PDF:
Date: 01/05/2009
Proceedings: Agency referral filed.

Case Information

Judge:
PATRICIA M. HART
Date Filed:
01/05/2009
Date Assignment:
01/06/2009
Last Docket Entry:
02/24/2010
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

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Related Florida Statute(s) (5):

Related Florida Rule(s) (2):