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.
Recommended Order on Wednesday, June 17, 2009.
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.
- Date
- Proceedings
- 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: 07/22/2009
- Proceedings: Petition for Review of a Non-Final Action by an Administrative Law Judge filed.
- 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: 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.
- Date: 03/16/2009
- Proceedings: CASE STATUS: Motion Hearing Held.
- Date: 03/12/2009
- Proceedings: 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.
- Date: 02/23/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 02/18/2009
- Proceedings: Motion for Leave to File Pre-trial Stipulations and Memorandum of Law filed.
- 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: 01/16/2009
- Proceedings: Motion for Notice and Opportunity to Join an Indispensable Party 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.
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
-
Mario R. Arango, Esquire
Address of Record -
Mari H. McCully, Esquire
Address of Record -
Mari H McCully, Esquire
Address of Record