03-001837 The Biscayne Institute vs. Agency For Health Care Administration Status: Closed Recommended Order on Tuesday, June 15, 2004.

Summary: Disallowance of payment for rehabilitation services that were not reasonable or medically necessary should be sustained.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE BISCAYNE INSTITUTE, )

)

Petitioner, )

)

vs. ) Case Nos. 03 - 1837

) 03 - 1838

AGENCY FOR HEALTH CARE ) 03 - 3890

ADMINISTRATION, )

)

Respondent, )

)

and )

)

CITY OF HOLLYWOOD and FLORIDA )

LEAGUE OF CITIES, )

)

I ntervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

March 15 through 18, 2004, at Miami, Florida, before

Administrative Law Judge Clau de B. Arrington of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Steven E. Stark, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 So utheast Second Street

Miami, Florida 33131

For Respondent: Donna Riselli, Esquire

Agency for Health Care Administration

Fort Knox Executive Center, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308 - 5403

For Intervenors: Mark S. Spangler, Esquire

Mark S. Spangler, P.A.

1061 Maitland Center Commons

Maitland, Florida 32751

STATEMENT OF THE ISSUE

Whether Petitioner is entitled under Florida’s workers’

compensation laws to payment for professional services to an

injured worker for the billings identified by the three notices

of disallowance at issue in this co nsolidated proceeding.

PRELIMINARY STATEMENT

J.B. (the claimant) suffered a traumatic brain injury on

February 17, 1995, while in the course of his employment as a

traffic meter enforcement officer with the City of Hollywood,

Florida. The claimant, who is not a party to this proceeding,

is entitled to and receiving benefits pursuant to the Florida

workers’ compensation laws.

Petitioner, a rehabilitation facility, first provided

services to the claimant on August 1, 1996. Despite having

received th e notices of disallowance at issue in this

proceeding, Petitioner continued to provide services to the

claimant as of the date of the final hearing (and presumably the

date of this Recommended Order).

The Division of Workers’ Compensation was formerly ho used

within the now defunct Department of Labor and Employment

Security. The Division of Workers’ Compensation is now housed

within the Agency for Health Care Administration.

The Intervenors are the employer and the workers’

compensation carrier for t he employer. For ease of reference,

the City of Hollywood and the Florida League of Cities will be

referred to as Intervenors when reference is to both. When

reference is to one, the City of Hollywood will be referred to

as the employer and the Florida L eague of Cities will be

referred to as the carrier.

In October 2000 counsel for the carrier mailed to

Petitioner a Notice of Disallowance which reflected that the

carrier had conducted a utilization review of the rehabilitation

services provided the clai mant and had concluded that certain

specified services rendered by Petitioner constituted

overutilization and/or misutilization since the treatment was

excessive and not medically necessary. The carrier advised

Petitioner that it had disallowed payment fo r the identified

services. Thereafter, a series of nearly identical Notices of

Disallowance were separately mailed by the carrier to Petitioner

covering subsequent time periods. For each Notice of

Disallowance, Petitioner contested the disallowance and t imely

petitioned the Division of Workers’ Compensation to resolve the

dispute pursuant to Section 440.13(7), Florida Statutes (2000).

By letter dated December 3, 2002, Merle Barnett, on behalf

of Respondent, notified Petitioner that it had determined t hat

the medical services at issue between the dates September 25,

2000, and July 5, 2002, were not appropriate for the claimant

and that the carrier’s disallowance of those billings was

sustained. Petitioner thereafter challenged Respondent’s

determinatio n that the subject payments should be disallowed and

the matter was referred to the Division of Administrative

Hearings, where it was assigned DOAH Case No. 03 - 1837.

By letter dated January 28, 2003, Ms. Barnett, on behalf of

Respondent, notified Petitione r that it had determined that the

medical services at issue between the dates July 8, 2002,

through December 5, 2002, were not appropriate for the claimant

and that the carrier’s disallowance of those billings was

sustained. Petitioner thereafter challeng ed Respondent’s

determination that the subject payments should be disallowed and

the matter was referred to the Division of Administrative

Hearings, where it was assigned DOAH Case No. 03 - 1838.

By letter dated August 15, 2003, Ms. Barnett, on behalf of

Res pondent, notified Petitioner that it had determined that the

medical services at issue between the dates December 9, 2002,

and June 27, 2003, were not appropriate for the claimant and

that the carrier’s disallowance of those billings was sustained.

Petiti oner thereafter challenged Respondent’s determination that

the subject payments should be disallowed and the matter was

referred to the Division of Administrative Hearings, where it

was assigned DOAH Case No. 03 - 3890.

At the final hearing, Petitioner prese nted the testimony of

Marie A. DiCowden, Ph.D. (a psychologist and director of the

Biscayne Institute); Paul Wand, M.D. (a treating neurologist);

William Benda, M.D. (a physician with a special interest in both

conventional and alternative theories to reha bilitation); Donald

Joseph Lollar, Ph.D. (a psychologist employed by the Center for

Disease Control); Raymond Seltser, M.D. (a retired professor who

has a special interest in disability determinations); Richard

Kishner, M.D. (a neurologist); and Antonio Pu ente, Ph.D. (a

psychology professor). Petitioner offered 37 exhibits, 36 of

which were admitted into evidence. (Only a portion of

Petitioner’s Exhibit 37 was admitted into evidence.) Among

Petitioner’s exhibits were the depositions of Daniel A. Picard,

M.D. (the medical director of the rehabilitation department of

Whitehall Nursing Home); Lauren L. Lerner, M.D. 1 (a physiatrist);

Venerando Batas, M.D. (a physiatrist); Merle Barnett (a

registered nurse specialist employed by Respondent); and Debra

Bartlett (a claims adjuster employed by the carrier).

Intervenors presented the testimony of Kenneth Fischer,

M.D. (a neurologist); Karen Williams, M.D. (a physiatrist);

Charles J. Golden, Ph.D. (a neuropsychologist); Mollie Frawley,

R.N. (a former employee of Res pondent); Allen Raphael, Ph.D. (a

specialist in assessment psychology); and Victor Robert, M.D. (a

neurologist). Intervenors offered 24 exhibits, 22 of which were

admitted into evidence. 2 Among Intervenors’ exhibits were the

depositions of Gerard Garcia, Psy.D. (a neuropsychologist);

Fernando G. Miranda, M.D. (a neurologist); David P. McCraney,

M.D. (a neurologist); Jorge Villalba, M.D.(a psychiatrist);

Richard S. Bailyn, M.D. 3 (a neurologist); Thomas G. Hoffman, M.D.

(a neurologist); and Kevin Lapinski, Ph.D. (a

neuropsychologist).

Respondent did not present any additional witnesses or

exhibits.

A Transcript of the proceedings, consisting of seven

volumes, was filed on April 20, 2004. Each party filed a

Proposed Recommended Order, which has been duly - considered by

the undersigned in the preparation of this Recommended Order.

Unless otherwise noted, all statutory references are to the

Florida Statutes (2004).

FINDINGS OF FACT

1. The claimant, a male, was born July 21, 1961. On

February 17, 1995, the claimant sustained a severe traumatic

brain injury (TBI) and other injuries during the course of his

employment with the City of Hollywood, Florida. At all times

relevant to these proceedings, the claimant has been receiving

benefits pursuant to the Flor ida workers’ compensation laws.

2. At all times relevant to this proceeding, the carrier

has been the workers’ compensation carrier for the employer.

3. At all times relevant to this proceeding, the claimant

has lived in a home purchased for him by t he carrier. The

claimant has a life estate in the home and the carrier has the

remainder interest. The claimant lives in the home with his

mother and has 24 - hour attendant services paid for by the

carrier. The carrier has purchased a van for the claiman t,

which his attendant uses to transport the claimant to therapy

and other appointments.

4. The claimant has a history of mental illness dating to

his teenage years, when he was diagnosed with schizophrenia. As

a result of his injury and his illness, the claimant acts out

periodically and becomes physically resistive to those trying to

care for him.

5. At all times relevant to this proceeding, Petitioner

has been a provider of rehabilitation services to various

patients, including those with TBI. Dr. Marie DiCowden, a

psychologist, is the founder and director of Petitioner.

Dr. DiCowden described Petitioner as being a health care

community that provides an integrated administration for a long

continuum of care post acute rehabilitation through com munity

reintegration using health promotion, prevention, and integrated

primary care. Petitioner is accredited by two national

accrediting organizations referred to by the acronyms CARF

(Commission on Accreditation of Rehabilitation Facilities) and

CORF ( Commission on Outpatient Rehabilitation Facilities).

Petitioner is also certified by the Florida Division of

Vocational Rehabilitation (formerly housed in the Department of

Labor and now housed in the Department of Education), the

Florida Division of Work ers’ Compensation, and by the Florida

Brain and Spinal Cord Injury Program. 4

6. As a result of his accident, the claimant was in a coma

for several weeks. He was hospitalized (first in an acute care

facility and subsequently in two different rehabilita tion

hospitals) until December 28, 1995, when he was placed in

Whitehall Nursing Home. Whitehall was not an appropriate

placement for the claimant because of his behavior and his need

for rehabilitation services.

7. On March 27, 1996, Yvonne Beckman, a rehabilitation

nurse consultant employed by the carrier, referred the claimant

to Petitioner for an evaluation. Shortly before that referral,

the claimant had been evaluated by two neuropsychologists

(Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined

that the claimant would benefit from rehabilitation services.

8. Ms. Beckman asked Dr. DiCowden to recommend a

neurologist who practiced in South Florida. In response,

Dr. DiCowden gave Ms. Beckman the names of three neurologists,

one of whom wa s Dr. Paul Wand. Ms. Beckman authorized Dr. Wand

to provide services to the claimant. Dr. Wand prescribed

continued rehabilitation services for the claimant at

Petitioner’s facility. The services at issue in this proceeding

were provided by Petitioner p ursuant to prescriptions from

Dr. Wand. 5

9. Prior to accepting the claimant, Dr. DiCowden informed

a representative of the carrier that Petitioner would accept the

claimant as a patient in its brain injury program and estimated

the annual costs to be $2 00,000.00. The claimant began

receiving rehabilitation services from Petitioner five days a

week beginning August 1, 1996. The claimant received from

Petitioner’s staff physical therapy, occupational therapy,

cognitive retraining, speech training, langua ge training,

psychological services, art therapy, music therapy, and yoga

therapy. The claimant continued to receive those rehabilitation

services from Petitioner (five days a week) from August 1996 to

the date of the hearing (and presumably to date). Th e

authorization for the provision of rehabilitation services to

the claimant was periodically reviewed by the carrier.

10. In November 1998, the carrier had the claimant

examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin

Lapinski (a neuropsyc hologist). Those doctors opined that the

claimant was not benefiting from cognitive retraining,

occupational therapy, speech therapy, or language therapy at

Petitioner’s facility. They further opined that the claimant

required an activity program to sati sfy his recreational and

stimulation needs, but that such a program did not require

Petitioner’s facility since the claimant’s aide could be trained

to provide those services. Dr. Bailyn was of the opinion that

as of November 1998 the various therapies pr ovided by

Petitioner’s facility to the claimant were not reasonable and

were not medically necessary.

11. Section 440.13(6), Florida Statutes, requires a

carrier to review bills by providers of medical services as

follows:

(6) UTILIZATION REVIEW. -- Ca rriers shall

review all bills, invoices, and other claims

for payment submitted by health care

providers in order to identify

overutilization and billing errors,

including compliance with practice

parameters and protocols of treatment

established in accord ance with this chapter,

and may hire peer review consultants or

conduct independent medical evaluations.

Such consultants, including peer review

organizations, are immune from liability in

the execution of their functions under this

subsection to the exte nt provided in s.

766.101. If a carrier finds that

overutilization of medical services or a

billing error has occurred, or there is a

violation of the practice parameters and

protocols of treatment established in

accordance with this chapter, it must

disa llow or adjust payment for such services

or error without order of a judge of

compensation claims or the agency, if the

carrier, in making its determination, has

complied with this section and rules adopted

by the agency.

12. As required by Section 440.1 3(6), Florida Statutes,

the carrier conducted a utilization review of the services

provided by Petitioner to the claimant beginning in late 1999.

13. The carrier retained Dr. Thomas G. Hoffman to review

the claimant’s medical records and to express opin ions

pertaining to the services provided to him by Petitioner. On

April 10, 2000, Dr. Hoffman submitted a report that included

several conclusions, including those that follow. The claimant

has severe, residual deficits as a result of his accident. He

r equires 24 - hour attendant care. There is no reasonable

expectation for further improvement. The therapy he was

receiving at that time (and still receives) was not reasonable

or medically necessary. The therapy was excessive in frequency

and duration. D r. Hoffman’s deposition testimony was consistent

with his written report.

14. The carrier retained Dr. Victor B. Robert to review

the claimant’s medical records and to express opinions

pertaining to the services provided to him by Petitioner. On

June 19, 2000, Dr. Robert submitted a report that included

several conclusions, including those that follow. The treatment

rendered by Petitioner was excessive in frequency and duration.

The claimant reached an improvement plateau in early 1997 and

therapy was t hereafter needed only for maintenance reasons.

Dr. Robert’s testimony was consistent with his written report.

15. The carrier retained International Assessment Systems,

Inc. (IAS), a professional association of various medical

practitioners, to conduct a n independent neurological,

neuropsychological, and psychological examination of the

claimant. On September 22, 2000, IAS submitted a report

(Intervenors’ Exhibit 8) based on the examinations of claimant

and the review of his medical records by Dr. Kennet h C. Fischer,

Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report

included several observations and conclusions, including those

that follow. The testimony of Drs. Fischer, Raphael, and Golden

was consistent with the written report they prepared f or IAS.

16. Pages 12 - 13 of the IAS report contain the following:

[The claimant] was oriented to person, but

not to place or time. He did not know the

current day, date, month, or year. His

sensorium was significantly impaired. His

mood was volatile, ranging from normal to

agitated. His affect was similarly labile,

at times he was placid, laughing, and able

to converse at a basic level, however he was

also quite violent. Attention and

concentration were significantly impaired.

His receptive, express ive and fluency

language capabilities were similarly

impaired, although, as noted, he was capable

of basic/functional [sic] communication.

There were no direct indications of

hallucinatory or delusional phenomena,

however, based on his behavior, it is lik ely

that some hallucinatory or delusional

phenomena were present. His reality testing

and insight were significantly impaired.

During his repeated fits of anger, he often

uttered suicidal and homicidal threats,

however there was no evidence of actual

int ent or plan. He showed no ability to

monitor his own safety.

17. Page 15 of the IAS report contains the following:

From a neuropsychological and

psychological perspective, there were gross

impairments noted in his cognitive abilities

and emotional f unctioning. . . . He has

been afforded considerable time to maximize

his cognitive recovery at this point. It is

clear that he has plateaued with regard to

cognitive improvement. He will not benefit

from continued rehabilitation efforts,

although he wil l require continued

stimulation to avoid further cognitive

decline. His mood and labile affect may

also be benefited by continued stimulation

in terms of recreational activities to

provide appropriate quality of life. 6

18. Page 17 of the IAS report co ntains the following under

the heading “Neurologic Impression”:

. . . I [Dr. Fischer] would recommend that

he be placed in a supervised residential

setting which will give better protection

for him and his caregivers than his present

home setting. As th e patient is four and a

half years status post - injury, specific

rehabilitative and therapeutic endeavors

will have no benefit and are unwarranted.

This would relate to hyperbaric oxygen and

cognitive rehabilitation was well as any

form of physical, occupa tional, or speech

therapies.

19. Page 19 of the IAS report contains the following:

[The claimant] was certainly aided by

initial removal from the nursing home and

receiving cognitive and physical therapies

at Biscayne. However, he has long since

rea ched a plateau in his improvement and no

further improvement can be expected at this

time. Maximum medical improvement should

have been reached within 18 to 24 months

post - injury. Any treatment after that time

would be palliative or maintenance - oriented

(sic). Therefore, the treatment prescribed

by Dr. Wand became unreasonable and

medically unnecessary several years ago.

20. Page 20 of the IAS report reflects the opinion that

while the treatments at Petitioner’s facility were excessive in

all respect s, the claimant does require maintenance

rehabilitation services. It is opined that cognitive retraining

is no longer appropriate, but that cognitive tasks and games are

appropriate in a recreational setting.

21. By letter dated October 27, 2000, the c arrier, through

its counsel, advised Petitioner that based on its Utilization

Review investigation, it had concluded that as to the identified

dates of service “. . . there has been overutilization and/or

misutilization since the treatment has been excessi ve and not

medically necessary.” This Letter of Disallowance was the first

of a series of letters sent by counsel for the carrier to

Petitioner, and frames the issues for all of the disallowances

at issue in this proceeding.

22. Thereafter, Petitioner timely disputed the carrier’s

basis for disallowing its services to the claimant and

petitioned the Respondent to resolve the dispute. The total

amount disallowed and at issue in this consolidated proceeding

is $615,587.00.

23. Respondent employed four E xpert Medical Advisors

(EMAs) to perform peer review and assist it in resolving the

dispute involving the rehabilitation services provided the

claimant by Petitioner. Respondent employed Dr. Fernando G.

Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, a nd Dr. David

McCraney to serve as EMAs. 7 Each of these doctors prepared a

report following his review and each sat for deposition.

24. Dr. Miranda’s report, dated September 17, 2001, is

attached to his deposition (Intervenors’ Exhibit 17). The

report included several conclusions, including those that

follow. The referral for intensive multi - disciplinary treatment

at Petitioner’s facility is no longer medically necessary. The

services provided by Petitioner are excessive in frequency and

duration and he will not further improve with speech therapy,

cognitive retraining, occupational therapy, or individual

psychotherapy. Maintenance physical therapy is recommended.

Dr. Miranda testified in his deposition that the recommended

physical therapy could be performed by the claimant’s attendant.

Dr. Miranda’s deposition testimony was consistent with his

written report.

25. Dr. Villalba’s report dated October 15, 2001, is

attached to his deposition (Intervenors’ Exhibit 19). The

report included several co nclusions, including those that

follow. The claimant reached maximum medical improvement

between February 1996 and October 1997. Dr. Villalba described

the services provided by Petitioner to claimant “clearly not

medically necessary” after October 1997. He also opined that

the claimant will require maintenance physical therapy,

occupational therapy, and speech and language therapy on a

continuing basis. Dr. Villalba’s deposition testimony was

consistent with his written report.

26. Dr. Garcia’s undated report was prepared during the

second week of October, 2001, and is attached to his deposition

(Intervenors’ Exhibit 16). The report included several

conclusions, including those that follow. The claimant should

be on a maintenance program and Petitione r’s treatment was

excessive. The claimant is unlikely to make further

neuropsychological improvement, but he should be treated by a

psychiatrist for his schizophrenia. Dr. Garcia’s deposition

testimony was consistent with his written report.

27. Dr. M cCraney’s report dated November 18, 2001, is

attached to his deposition (Intervenors’ Exhibit 18). The

report included several conclusions, including those that

follow. While the care provided Petitioner appears to be

excellent, the claimant is far beyon d the point where

Petitioner’s therapies would be reasonable or medically

necessary. Dr. McCraney’s deposition testimony was consistent

with his written report.

28. Dr. DiCowden testified at length about the various

services her facility provides the cla imant and the records her

staff generates as a result of those services. Dr. DiCowden

testified that her staff is well - trained in assessing the

functional status of rehabilitation patients using nationally

recognized assessment methodologies. FIN - FAM, ac ronyms for

“Functional Independence Measures” and “Functional Assessment

Measures” is one assessment measure used by Petitioner’s staff.

The FIN - FAM measure purports to quantify a patient’s progress or

lack thereof and can be used by staff as a tool in de veloping

treatment strategies. Dr. DiCowden presented a chart of the

FIN - FAM scores for the claimant for the periods at issue in this

proceeding. The chart, prepared for this litigation, reflects

steady functional improvement of the claimant.

29. Dr. D iCowden further testified that Petitioner’s staff

uses a scale of cognitive functioning developed by a

rehabilitation facility known as Rancho Los Amigos Hospital,

which measures a patient’s response to stimuli on a scale of

Ranch Level I (no response) to Ranch Level VII (appropriate

response). She asserts that the measurement of the claimant’s

status using the Rancho methodology reflect that the claimant

has improved over the years.

30. In support of its position that the claimant steadily

progressed w hile undergoing therapy at its facility, Petitioner

presented the testimony of Drs. Antonio Puente, Vernando Batas,

and Richard Kishner who observed the claimant at Petitioner’s

facility on June 23, 2003, September 13, 2003, and February 24,

2004, respecti vely. Each of these witnesses had the subjective

impression that the claimant was benefiting from therapy at

Petitioner’s facility.

31. Petitioner asserts that the FIN - FAM scores, the Rancho

Levels, and the testimony of its experts establish that the

c laimant is benefiting from therapy. That assertion is rejected

as being contrary to the greater weight of the credible

evidence. The FIN - FAM scoring and the Rancho scale depend on

the subjective impressions of the various therapists who treat

the claiman t at Petitioner’s facility and the record reflects

that the scoring was done on an irregular basis. 8

32. Dr. DiCowden adamantly disagreed with the contention

that the rehabilitation services provided by her facility is not

reasonable or medically necessa ry. All evidence presented by

Petitioner, including Dr. DiCowden’s testimony, has been

carefully considered by the undersigned in resolving the

conflicts in the evidence. At best, Petitioner established that

the claimant made some unquantified amount of progress in the

highly structured therapeutic setting at Petitioner’s facility.

Intervenors’ experts clearly established that any progress made

by the claimant in therapy did not transcend that therapeutic

setting to the real world.

33. Petitioner fail ed to establish by a preponderance of

the evidence that the rehabilitation services it provided the

claimant were appropriate and medically necessary. To the

contrary, the greater weight of the credible evidence

established that at all times relevant to t his proceeding the

rehabilitation services provided by Petitioner to the claimant

have been excessive and that those excessive services have been

neither reasonable nor medically necessary.

CONCLUSIONS OF LAW

34 . The Division of Administrative Hearing s has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1),

440.13(11)(c), and 440.44(8), Florida Statutes.

35. This is a de novo proceeding. See § 120.57(1)(k),

Fla. Stat. As the party asserting entitlement to reimbursement

for its services, Petitioner has the burden of proof in this

proceeding. See Dept. of Transportation v. J.W.C. Co., Inc. ,

396 So. 2d 778, 785 - 87 (Fla. 1st DCA 1981). The standard of

proof is a preponderance of the evidence. See § 120.57(1)(j),

Fla. Stat.

36. Section 440.13(7), Florida Statutes, sets forth the

policies and procedures for resolution of billing disputes

between a provider and a carrier as follows:

(7) UTILIZATION AND REIMBURSEMENT

DISPUTES.

(a) Any hea lth care provider, carrier, or

employer who elects to contest the

disallowance or adjustment of payment by a

carrier under subsection (6) must, within 30

days after receipt of notice of disallowance

or adjustment of payment, petition the

agency to resolve the dispute. The

petitioner must serve a copy of the petition

on the carrier and on all affected parties

by certified mail. The petition must be

accompanied by all documents and records

that support the allegations contained in

the petition. Failure of a petitioner to

submit such documentation to the agency

results in dismissal of the petition.

(b) The carrier must submit to the agency

within 10 days after receipt of the petition

all documentation substantiating the

carrier's disallowance or adjustmen t.

Failure of the carrier to submit the

requested documentation to the agency within

10 days constitutes a waiver of all

objections to the petition.

(c) Within 60 days after receipt of all

documentation, the agency must provide to

the petitioner, the c arrier, and the

affected parties a written determination of

whether the carrier properly adjusted or

disallowed payment. The agency must be

guided by standards and policies set forth

in this chapter, including all applicable

reimbursement schedules, in re ndering its

determination.

(d) If the agency finds an improper

disallowance or improper adjustment of

payment by an insurer, the insurer shall

reimburse the health care provider,

facility, insurer, or employer within 30

days, subject to the penalties pr ovided in

this subsection.

(e) The agency shall adopt rules to carry

out this subsection. The rules may include

provisions for consolidating petitions filed

by a petitioner and expanding the timetable

for rendering a determination upon a

consolidated p etition.

(f) Any carrier that engages in a pattern

or practice of arbitrarily or unreasonably

disallowing or reducing payments to health

care providers may be subject to one or more

of the following penalties imposed by the

agency:

1. Repayment of th e appropriate amount to

the health care provider.

2. An administrative fine assessed by the

agency in an amount not to exceed $5,000 per

instance of improperly disallowing or

reducing payments.

3. Award of the health care provider's

costs, including a reasonable attorney's

fee, for prosecuting the petition.

37. "Utilization review" is the process used to determine

whether overutilization exists. Pursuant to Section

440.13(1)(u), Florida Statutes, the utilization review process

involves:

. . . the evaluation of the

appropriateness of both the level and the

quality of health care and health services

provided to a patient, including, but not

limited to, evaluation of the

appropriateness of treatment,

hospitalization, or office visits based on

medical ly accepted standards. Such

evaluation must be accomplished by means of

a system that identifies the utilization of

medical services based on medically accepted

standards as established by medical

consultants with qualifications similar to

those providing the care under review, and

that refers patterns and practices of

overutilization to the agency.

38. Section 440.13(1)(l), Florida Statutes, defines an

"instance of overutilization" to mean "a specific inappropriate

service or level of service provided t o an injured employee."

39. Section 440.13(1)(m), Florida Statutes, defines

"medically necessary" as follows:

any medical service or medical supply

which is used to identify or treat an

illness or injury, is appropriate to the

patient's diagnosis and s tatus of recovery,

and is consistent with the location of

service, the level of care provided, and

applicable practice parameters. The service

should be widely accepted among practicing

health care providers, based on scientific

criteria, and determined t o be reasonably

safe. The service must not be of an

experimental, investigative, or research

nature, except in those instances in which

prior approval of the Agency for Health Care

Administration has been obtained.

40. To satisfy its burden, Petitione r would have to prove

by a preponderance of the evidence that the services it provided

the injured worker were medically necessary and appropriate and,

consequently, did not constitute overutilization. It is

necessary to consider the claimant's entire tre atment history to

understand the patient's status of recovery and to determine

whether the treatment rendered by Petitioner on the dates at

issue was appropriate for the patient. After considering all

evidence presented by the parties, it is concluded tha t

Petitioner failed to justify its extensive treatment of the

claimant in light of his deficits and his inability to benefit

from therapy outside of the therapy room. Petitioner failed to

meet its burden of proof in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Agency for Health Care Administration

issue a final order that sustains the disallowances at issue in

this consolidated proceeding.

DONE AND ENTERED this 15th day of J une, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of June, 2004.

ENDNOT ES

1/ Petitioner’s Exhibit 15 is a composite exhibit of

Dr. Lerner’s two depositions, one taken September 19, 1995, and

the other taken December 7, 1995.

2/ Intervenors’ Exhibit 4, a magazine article entitled “Winning

one with Medicaid,” was rejected b ased on Petitioner’s hearsay

objection. That article is in evidence as part of Petitioner’s

Composite Exhibit 9. Intervenors’ Exhibit 15 (the curriculum

vitae of Ms. Frawley) was withdrawn by Intervenors.

3/ Intervenors’ Exhibit 20 is Dr. Bailyn’s de position taken

December 4, 2003. Intervenors’ Exhibit 21 is Dr. Bailyn’s

deposition taken March 1, 2004.

4/ Intervenors attempted to create an inference that Petitioner

was intentionally gouging the carrier by providing unnecessary

and excessive service s to the claimant. The undersigned rejects

that inference. This case involves a genuine dispute between a

reputable provider (and its supporting experts) and other highly

qualified professionals as to whether the rehabilitation

services at issue were rea sonable and medically necessary.

5/ Respondent has upheld Intervenors’ disallowance of certain

services provided by Dr. Wand to the claimant. Dr. Wand has not

challenged Respondent’s determination that certain of his

services were “excessive” and “ not reasonable or medically

necessary”.

6/ Although not relevant to the issues, it should be noted that

the report includes an observation that “His overall psychiatric

status is associated with his premorbid difficulties

[schizophrenia], but made worse by the cognitive damage he

sustained. His current placement at home appears inappropriate

and unsafe for all concerned.” The record is clear that the

claimant would benefit from appropriate psychiatric services.

7/ The undersigned finds each of these EMAs to be highly

qualified and unbiased. Their testimony and reports are found

to be credible and have been accorded considerable weight.

Their opinions are consistent with the IAS report and with the

other evidence presented by the Intervenors.

8/ Moreover, the reliability of the FIN - FAM data and the chart

itself were called into question because the data was not part

of the medical records produced pursuant to discovery and as

required by Section 440.13(4)(c), Florida Statutes. The chart,

prepare d for this litigation, was based on data that had not

been properly disclosed to the Intervenors and Respondent.

COPIES FURNISHED :

Mark S. Spangler, Esquire

Mark S. Spangler, P.A.

1061 Maitland Center Commons

Maitland, Florida 32751

Donna Riselli, Esquire

Agency for Health Care Administration

Fort Knox Executive Center, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308 - 5403

Steven E. Stark, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

Lealand McCharen Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Alan Levine, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issu e the Final Order in this case.