03-003905MPI Agency For Health Care Administration vs. Oscar Mendez-Turino, M.D. Status: Closed Recommended Order on Friday, May 26, 2006.

Summary: Petitioner overpaid Respondent $5952.99, before extrapolation for services that were not medically necessary or documented.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3905MPI

)

OSCAR MENDEZ - TURINO, M.D., )

)

Respondent. )

______________________________)

RECOMM ENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Tallahassee, by videoconference, and in Miami on February 26,

April 23, and November 1 - 3, 2004 (2004 hearing), and December 1

and 2, 2005 (2005 hearing).

APPEARANCES

For Petitioner: Jeffries H. Duvall

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5403

For Respon dent: Craig A. Brand

Law Offices of Craig A. Brand, P.A.

5201 Blue Lagoon Drive, Suite 720

Miami, Florida 33126

STATEMENT OF THE ISSUE

The issue is whether Petitioner overpaid Respondent for

medical services for 20 patients under the Medicaid Program from

February 22, 1997, through February 22, 1999, and, if so, by how

much.

PRELIMINARY STATEMENT

By letter dated March 1, 2002, Petitioner informed

Respondent that Petitioner had overpaid R espondent $238,069.09

for medical services that he had provided under the Medicaid

Program. By letter dated March 8, 2002, Respondent disputed the

claim and requested a formal hearing.

Based on an announced settlement of the case, the

Administrative Law Judge entered an Order Closing File Without

Prejudice on December 9, 2002. On October 7, 2003, Petitioner

filed a Motion to Reopen Case.

The first two days of the 2004 hearing were abbreviated due

to the failure of Petitioner to have timely provided copi es of

its evidence to Respondent, as required by Section 403.913(22),

Florida Statutes, which is cited below in the Conclusions of

Law. Availability problems -- mostly of Respondent's counsel due

to medical problems and a hurricane and typically unopposed b y

Petitioner -- prevented an earlier rescheduling of the hearing

after April 23, 2004, and after November 3, 2004. The third day

of the 2004 hearing was lost due to the failure of Petitioner to

order a court reporter. After five scheduled days of hearing,

which had generated only 23.5 hours of actual hearing time,

Petitioner and Respondent had presented evidence on only five

patients, exclusive of Petitioner's rebuttal, which was taken by

deposition.

At the end of the 2004 hearing, the Administrative Law

J udge had suggested that the parties agree that he prepare a

partial recommended order, which might serve as the basis of a

settlement of the case. Six months later, after unsuccessful

efforts to reset the hearing, the parties suggested this

procedure by R espondent's Unopposed Motion for Continuance of

Final Hearing [and] Unopposed Motion for Partial Ruling, which

was filed May 5, 2005. By Order dated May 6, 2005, the

Administrative Law Judge granted the Unopposed Motion for

Partial Ruling.

On May 24, 20 05, the court reporter filed the transcript of

the 2004 hearing. On July 7, 2005, Petitioner filed its Interim

Proposed Recommended Order. Respondent did not file a proposed

order. On September 27, 2005, the Administrative Law Judge

issued an Order on E vidence Presented to Date. Covering five

patients, this Order is incorporated into the findings and

conclusions set forth below.

The parties were unable to settle the case based on the

September 27 Order. On October 10, 2005, Petitioner advised

that it sought an evidentiary hearing on the remaining 15

patients.

At the 2004 hearing, Petitioner called two witnesses --

Investigator Ramon Rosario and registered - nurse consultant

Dorothea Solomon -- and offered into evidence seven exhibits:

Petitioner Exhibit 4 - - Preliminary Agency Audit Report;

Petitioner Exhibit 5 -- Final Agency Audit Report; Petitioner

Exhibit 9 -- claims worksheets and summary spreadsheet; Petitioner

Exhibit 10 -- medical records for 20 patients; Petitioner Exhibit

18 -- transcript of Dr. Thomas Hick s' deposition of February 17,

2004; and Petitioner Exhibit 19 -- revised claims worksheets and

summary spreadsheet. With the leave of the Administrative Law

Judge, Petitioner filed, after the hearing, Petitioner Exhibit

20 -- transcript of Dr. Thomas Hicks' r ebuttal deposition of

May 24, 2005.

Respondent called one witness -- Respondent -- and offered into

evidence four exhibits: Respondent Exhibit 1 -- medical records

review summary; Respondent Exhibit 2 -- handwritten note from

Mr. Rosario to Ms. Solomon, prepar ed by Mr. Rosario and

delivered by him to Ms. Solomon during her testimony by

videoconference; Respondent Exhibit 3 -- Respondent's resume; and

Respondent Exhibit 4 -- medical records for 20 patients.

All exhibits were admitted.

The Order on Evidence Prese nted to Date states that

Petitioner's proof suffers two general shortcomings. First, the

record does not contain the manual of Current Procedural

Terminology, which codes the various procedures or services

discussed below. The manual was originally noted in

Petitioner's exhibit list as Petitioner Exhibit 13, but

Petitioner failed to offer this exhibit into evidence. The

Administrative Law Judge took official notice of the manual, but

he has been unable to find a copy of the Current Procedural

Terminology manual online or in the Florida Administrative Code

-- largely because the information contained in the Current

Procedural Terminology manual is proprietary and licensed for

use. For several disputed services, the omission of the manual

is material becaus e, without it, Petitioner is unable to prove

what procedure that Respondent billed, that an office visit

should have been billed at a lower level of service, or that a

billed procedure was not medically necessary. This shortcoming

characterizes Petitioner 's evidence offered in the 2005 hearing,

at which Petitioner again failed to supply the Current

Procedural Terminology manual.

The second shortcoming in Petitioner's evidence involves

its expert medical evidence. The two depositions of Dr. Hicks

require complete synopsis because they represent the only

physician testimony offered by Petitioner. Betraying a

misplaced reliance on the strength of the prima facie evidence

of audit workpapers or a disregard of the de novo nature of this

proceeding, Petitioner did not elicit testimony from Dr. Hicks

on the patients and the services that they received, except for

Patient 1. For services for which Respondent or his records

suggested medical necessity and proper coding, Petitioner thus

missed an opportunity to ma ke its case for a lack of medical

necessity or the need to downcode, except, again, as to

Patient 1. For the remaining patients, the weight of Dr. Hicks'

general opinion is sufficient for Petitioner to prove

overpayments only if the medical necessity of t he services

appears doubtful on the face of Respondent's records or in light

of his testimony.

The first deposition of Dr. Hicks, which was taken on

February 26, 2004, was taken by Petitioner, presumably for use

at the final hearing. Dr. Hicks testified that he examined the

medical records of what was then 21 patients. (Transcript of

deposition of Dr. Thomas Hicks, February 17, 2004, page 5.)

Dr. Hicks testified that he checked the records for "medical

necessity" and the "appropriate level of charges." ( Id. )

Dr. Hicks then testified that Patient 1's office visit of

April 27, 1998, lacked medical necessity, and he assured

Petitioner's counsel that he had determined a lack of medical

necessity for each of the patients in the sampling group -- at

which poin t, Petitioner's counsel ended his questioning of the

witness. ( Id. at page 8.)

On cross - examination by Respondent's counsel, Dr. Hicks

addressed in detail Patient 1's office visits of April 27, 1998

( Id. at pages 16 - 17); June 1, 1998 ( Id. at pages 19 - 20) ;

June 19, 1998 ( Id. at page 21); and August 3, 1998 ( Id. at pages

21 - 22). Except for some discussion about community standards in

Dade County and Leon County, this is the entire portion of

Dr. Hicks' first deposition that is material to this case.

The s econd deposition, which was taken May 24, 2005, was

again taken by Petitioner's counsel, after Dr. Hicks had

examined the testimony of Respondent at the 2004 hearing. After

confirming that he had downcoded few services on the first five

patients (Transcri pt of deposition of Dr. Thomas Hicks, May 24,

2005, page 5), Dr. Hicks proceeded largely to repeat his earlier

testimony about Patient 1's office visits of April 27 and

June 1, 1998 ( Id. at pages 5 - 9), although Dr. Hicks decided to

allow the echogram of th e spleen performed on June 1, 1998, and

then assured Petitioner's counsel that he had not changed his

mind about any other services that Respondent billed based on

Patient 1 ( Id. at page 10). Briefly addressing Patient 2,

Dr. Hicks conceded the medical ne cessity of the aerosol

treatment on August 17, 1998 ( Id. ), and the billed level of

service for the August 28, 1998 office visit ( Id. at pages 10 -

11). Dr. Hicks then testified that he would not change anything

as to Patients 3 or 4 and had not re - examined Patient 5 due to

the large number of services at issue with respect to Patient 5

( Id. at page 11). Petitioner's counsel concluded his direct

examination on this inauspicious note.

On cross - examination, Dr. Hicks discussed echography in

general and the us e of this diagnostic tool by himself and his

partners. After the obligatory acknowledgement that he had not

treated or examined any of the patients of Respondent ( Id. at

page 28), Dr. Hicks underwent brief re - direct examination,

during which he confirmed that Petitioner disallowed, for lack

of documentation, a maximum breathing test on Patient 2 on

January 8, 1999, noting that this was the only service for which

Petitioner lacked documentation ( Id. ).

Respondent was the sole witness to testify at the 2005

hearing, which covered the remaining 15 patients. Petitioner

requested leave for Dr. Hicks to testify, post - hearing, by

deposition, but the Administrative Law Judge denied the request

because it had not been made prior to the hearing and the

undetailed na ture of Dr. Hicks' previous testimony did not

justify the additional time it would take to obtain a transcript

of the 2005 hearing, allow Dr. Hicks time to examine the

transcript and underlying patient records, schedule and take the

deposition of Dr. Hicks , and file the transcript of the

deposition.

The court reporter filed the transcript of the 2005 hearing

on March 6, 2006. Petitioner filed a Proposed Recommended Order

on March 24, 2006. Failing to respond to the observation in the

Order on Evidence Pre sented to Date that Petitioner's earlier

proposed order contains few actual findings of fact and does not

mention a single patient, procedure, or reason for disallowance,

the March 24 proposed order is identical in these respects.

Respondent again did not file a proposed recommended order.

FINDINGS OF FACT

1. At all material times, Respondent, who is a licensed

physician, was authorized to provide medical services to

Medicaid recipients, provided medical services to Medicaid

recipients, billed Petitioner for these services, and received

payment for these services. The Medicaid program provides for

periodic audits of each Medicaid provider, after which

Petitioner may seek repayment of amounts revealed by audit to

have been overpaid to the provider.

2. A fter conducting such an audit of Respondent for

services rendered from February 22, 1997, through February 22,

1998, and exchanging post - audit information, Petitioner informed

Respondent, by letter dated March 1, 2002, that it had overpaid

him $238,069.09 for claims that were, in whole or in part, not

covered by Medicaid, and demanded repayment of this amount. The

letter states that the overpayment was extrapolated from the

overpayment amount determined from auditing the records of a

random sample of 21 pa tients for whom Respondent had submitted

423 claims. The actual overpayment amount, before extrapolation

is $11,248.14.

3. Petitioner later removed one of the patients from the

sample due to a billing error. Among the 21 patients covered by

the audit, t he deleted patient is identified as Patient 20. The

age of each patient set forth below is his or her age at the

time of the first office visit during the audit period. Where a

series of payments are set forth below, they are listed in the

order of the p rocedures discussed immediately above the

payments.

4. Patient 1, who was 17 years old first saw Respondent on

March 27, 1998. Petitioner allowed payments for Patient 1's

first two visits. On March 27, 1998, Respondent performed an

abdominal echogram an d other services for abdominal pain of

three or four months' duration, and, on April 14, 1998,

Respondent performed a doppler echocardiograph and other

services for chest pain of three or four days' duration.

5. On April 27, 1998, Patient 1 presented at R espondent's

office with fever and chills since the previous day. Patient 1

complained of nausea, frequent and painful urination, and pain

in the abdomen and lower back. Without first performing a

urinalysis or urine culture, Respondent performed a renal

echogram April 27, based on his diagnosis of urosepsis and to

rule out a urinary tract infection.

6. Renal echography was not medically necessary to rule

out a urinary tract infection, at least until Respondent had

first performed a urinalysis and urine c ulture and considered

the results from this laboratory work. Respondent's diagnosis

of urosepsis lacks any basis in his records. If Patient 1 had

suffered from urosepsis, which is a life - threatening condition

that requires urgent treatment -- not echograph y -- Respondent

should have treated the matter as a medical emergency.

Petitioner proved that it overpaid $61.57 for this service.

7. Petitioner allowed a payment for medical services,

which did not include any echography, on May 4, 1998.

8. On June 1, 19 98, Patient 1 presented at Respondent's

office complaining of acute abdominal pain for three or four

days. Respondent performed a physical examination and detected

an enlarged spleen. He then performed an echogram of the spleen

and found a normal spleen without inflammation or cyst.

Respondent proceeded with the echography without first

performing routine blood work, such as a white blood cell count,

to detect infection.

9. The echogram of the spleen was not medically necessary,

at least until Respond ent had performed routine blood work to

confirm or rule out infection. However, as noted in the

Preliminary Statement, Dr. Hicks has withdrawn his objection to

this payment, so Petitioner did not overpay for this service.

10. Petitioner allowed a payment for a medical service on

June 5, 1998.

11. On June 19, 1998, Patient 1 presented at Respondent's

office complaining of weakness, fainting, dizziness, fatigue,

palpitations, shortness of breath, heartburn, rectal discomfort,

and skin rash. After perform ing a physical examination,

Respondent suspected hypothyroidism and performed a thyroid

echogram, which revealed a normal thyroid.

12. Again, thyroid echography is not medically necessary

without first performing routine laboratory tests of thyroid

funct ion. Petitioner proved that it overpaid $45.24 for this

service.

13. On August 3, 1998, Patient 1 presented at Respondent's

office complaining of weakness in his arms and hands of three to

four weeks' duration. A physical examination revealed that

Patie nt 1's grip was weak and his wrists painful upon pressure.

Suspecting carpal compression, Respondent conducted three types

of nerve conduction velocity tests (NCV), including an H - Reflex

test, all of which test nerve function.

14. Patient 1 had a psychi atric diagnosis, as Respondent

was aware at the time of this office visit. Before conducting

the NCV, Respondent contacted Patient 1's psychiatrist and

obtained her approval of the test. Also, before conducting the

NCVs, Respondent obtained blood work, s o as to determine the

blood levels of the psychotropic medications that Patient 1 was

taking. Petitioner failed to prove that it overpaid for these

services.

15. Patient 1 visited Respondent's office on August 7,

August 25, September 16, and October 30, 1998, but Petitioner is

not disallowing any of these payments.

16. On November 23, 1998, Patient 1 presented at

Respondent's office complaining of pain in his right ankle after

tripping and falling the previous day. Respondent conducted a

physical exam ination and found mild swelling, applied an elastic

bandage, prescribed Motrin and physical therapy for three weeks,

and ordered an X ray.

17. Petitioner claims that Respondent misbilled the

procedure. Respondent billed a 73000, which is a procedure

unde r the Current Procedure Terminology manual (CPT), and

Petitioner claims that the correct CPT code is 73600, which

would generate an overpayment of 59 ¢ . However, as noted in the

Preliminary Statement, the evidence fails to support this claim

by Petitioner, so Petitioner failed to prove that it overpaid

for this service.

18. Patient 2, who was a 57 years old, had seen Respondent

for three years. Patient 2 visits the office "constantly,"

according to Respondent. Petitioner has disallowed payments for

ser vices rendered on March 2, March 31, April 28, June 1,

August 17, August 28, September 24, October 2, November 3,

November 9, December 1, and December 21, 1998, and January 8,

1999. However, as noted in the Preliminary Statement, Dr. Hicks

has withdrawn h is objection to the aerosol treatment on

August 17 and the level of service of the office visit on August

28.

19. On March 2, 1998, Patient 2 presented at Respondent's

office with acute onset the previous day of left flank pain, now

radiating to the left lumbar and genital areas. Patient 2

denied passing any stones in his urine, although he complained

of frequency and pain of urination. Respondent found Patient

2's abdomen distended and liver enlarged. He performed a renal

echogram to rule out kidney st ones or urinary retention. The

results were normal.

20. Respondent's testimony failed to establish the medical

necessity of this renal echography. The symptoms are too

nonspecific to justify this diagnostic procedure at this time,

so Petitioner proved t hat it overpaid $61.57 for this service.

21. On March 31, 1998, Patient 2 presented at Respondent's

office with complaints of leg pain and cramps at night, which

arose after walking a block and alleviated with rest.

Diagnosing this obese patient with per ipheral vascular disease,

Respondent performed doppler procedures of the lower extremity

veins and arteries. The results revealed mild atheromatous

changes in the lower extremities.

22. Petitioner failed to prove that the two procedures

billed by Respond ent for the March 31 office visit were

medically unnecessary, so Petitioner failed to prove that it

overpaid for these services.

23. On April 28, 1998, Patient 2 presented at Respondent's

office with nausea of three or four days' duration, vomiting

associ ated with indigestion, fatty food intolerance, flatulence,

and bitter taste. Patient 2, whom Respondent presumed was

alcoholic, had an enlarged liver, as Respondent had noted in

previous examinations of Patient 2.

24. Respondent performed a liver echogra m, after ordering

a laboratory report on January 29, 1998. The results confirmed

the presence of liver echogenicity or fatty liver.

26. Petitioner failed to prove that this echography was

not medically necessary, so Petitioner failed to prove that it

ove rpaid for this service.

26. On June 1, 1998, Patient 2 presented at Respondent's

office with complaints of pain on urination, increased frequency

of urination, the need to urinate at night, and chills.

Respondent performed an echogram of the prostate to rule out

cancer; however, Respondent's records did not disclose any

laboratory test, which is more appropriate for detecting

prostate cancer.

27. Respondent's testimony establishes that this echogram

was not medically necessary, so Petitioner proved that it

overpaid $51.34 for this service.

28. On September 24, 1998, Patient 2 presented at

Respondent's office with a complaint of low back pain after

slipping and falling down three days earlier. Respondent

performed three NCVs, including an H - Reflex test. Respondent's

notes state an intention to do X rays, although the records fail

to reveal whether X rays were ever done.

29. Petitioner failed to prove that the three NCV tests

were not medically necessary. Petitioner also downcoded the

office visit on this date, but, as noted in the Preliminary

Statement, due to the failure to produce a CPT manual,

Petitioner failed to prove that it overpaid $10.74 for this

service.

30. On October 2, 1998, Patient 2 presented at

Respondent's office with a complaint of shortness of breath.

Respondent administered an aerosol with Ventolin, which is a

drug used to combat asthma. This is the same aerosol that

Dr. Hicks decided to allow on August 17 upon further review, and

the medical necessity for this aerosol is the sam e as the

earlier aerosol, so Petitioner failed to prove that it overpaid

$10.62 for this service.

31. On November 3, 1998, Patient 2 presented at

Respondent's office with complaints of malaise, fatigue,

weakness, and weight gain. Respondent performed a t hyroid

echogram in connection with a diagnosis of hypothyroidism, and

the test results were normal. Patient 2, who suffered from

chronic obstructive pulmonary disease (COPD), had not actually

gained weight over 1998. Without the results of other tests of

thyroid function, a test to measure the size of the thyroid was

not medically necessary, so Petitioner proved that it overpaid

$45.24 for this service.

32. On November 9, 1998, Patient 2 presented at

Respondent's office with complaints of continuing ches t pain and

palpitations. Respondent had seen Patient 2 three days earlier

for the same complaints and performed an electrocardiogram,

whose results were abnormal, although not acute. Based on this

test, Respondent had referred Patient 2 to a cardiologist .

Given the proper referral of Patient 2 to a cardiologist, the

ensuing doppler echocardiogram was not medically necessary. The

record is devoid of any evidence that Respondent could

adequately care for the cardiac condition suffered by Patient 2,

so this diagnostic service performed no useful function.

Petitioner proved that it overpaid $117.23 and $51.34 for these

services.

33. On December 1, 1998, Patient 2 presented at

Respondent's office with chest congestion and cough, with some

shortness of breath , of three days' duration. Respondent

administered an aerosol with medications to treat Patient 2's

bronchial asthma and COPD by functioning as a bronchodilator.

This treatment was preceded by a spirometry, which tests

respiratory function. Petitioner f ailed to prove that either

the diagnostic or therapeutic service provided by Respondent on

December 1 was not medically necessary.

34. On December 21, 1998, Patient 2 presented at

Respondent's office with the same complaints from his visit

nearly three we eks earlier. Respondent performed two duplex

scans of the lower extremities to check his circulatory state,

These scans were not medically necessary. Although Patient 2

was also complaining of a slow progression of leg pain and

cramps, Respondent had per formed a diagnostic procedure for

these identical symptoms nine months earlier. The absence of

any recorded treatment plan in the interim strongly suggests

that diagnostic echography is displacing actual treatment.

Respondent also performed another spiro metry, less than three

weeks after the prior spirometry. There was no medical

necessity for this second procedure because Patient 2's symptoms

and complaints had remained unchanged. Petitioner proved that

it overpaid $97.96, $72.39, and $15.70 for these services.

35. On January 8, 1999, Patient 2 presented at

Respondent's office, again with respiratory complaints.

Respondent claims to have administered a maximum breathing test,

but he submitted no documentation of such a test to Petitioner,

so Petitione r has proved that it overpaid $9.82 for this

service.

36. Patient 3, who was 13 years old, saw Respondent only

one time -- April 28, 1998. On this date, she presented at

Respondent's office with menstrual complaints, abdominal pain,

anxiety, and urinary di sorders in terms of frequency and

urgency.

37. After performing a physical examination (limited as to

the pelvic area due to the demands and cultural expectations of

the patient and her family) and ordering blood work, Respondent

performed pelvic and re nal echograms, choosing not to subject

the patient to X rays due to her young age. When Respondent

later received the blood work, he found evidence supporting a

diagnosis of a urinary tract infection.

38. Although the menstrual history should have been

d eveloped in the records, the pelvic echogram could have

uncovered an ovarian cyst, and legitimate reason existed to

avoid an X ray and an extensive pelvic examination. However,

the renal echogram was not medically necessary. The proper

means of diagnosin g a urinary tract infection is the blood work

that Respondent ordered. The records mention the possibility of

kidney stones, but this condition did not require ruling out

based on the complaints of the patient, findings of the physical

examination, and un likelihood of this condition in so young a

patient. Petitioner proved that it overpaid $61.57 for the

renal echogram, but failed to prove that it overpaid for the

pelvic echogram.

39. Patient 4, who was eight years old, first saw

Respondent on November 1 1, 1998. Patient 4 presented with a

fever of two days' duration, moderate cough, and runny nose.

His grandmother suffered from asthma, but nothing suggests that

Patient 4 had been diagnosed with asthma.

40. After conducting a physical examination and ta king a

history, Respondent diagnosed Patient 4 as suffering from acute

tonsillitis, allergic rhinitis, bronchitis, and a cough.

Apparently, Respondent misbilled Petitioner for an aerosol

treatment because Respondent testified, and his records

disclose, th at no aerosol was administered, so Petitioner proved

that it overpaid $10.62 for this service. Respondent

administered a spirometry, which he justified on the basis of

the grandmother's asthma. Although the results of the

spirometry indicated pulmonary i mpairment, the test was not

medically necessary, given the history and results of the

physical examination, so Petitioner proved that it overpaid

$32.06 for this service.

41. On February 15, 1999, Patient 4 presented at

Respondent's office with a fever of two days' duration, moderate

cough, and clear nasal discharge. Again, Respondent

administered a spirometry, which again revealed pulmonary

impairment, and, again, the test was not medically necessary.

Again, Respondent displayed a fondness for diagnosti c procedures

that yielded no plan of treatment. Petitioner proved that it

overpaid $16.94 for this service.

42. Patient 5, who was 61 years old, presented at

Respondent's office with a history of weekly visits, as well as

osteoarthritis and high blood pr essure. On March 26, 1998,

Patient 5 presented at Respondent's office with a complaint of

left hip pain of three days' duration, but not associated with

any trauma. She also reported dizziness and occasional loss of

consciousness after faintness. Patien t 5 noted that her neck

swelled three or four months ago.

43. Respondent billed for two views of the hip, but

nothing in his records indicates more than a single view, so

Petitioner proved that it overpaid Respondent $6.68 for this

aspect of the X - ray ser vice.

44. Respondent also performed a duplex scan of the carotid

artery. The scan, which was justified due to Patient 5's

dizziness, faintness, and loss of consciousness, revealed

atherosclerotic changes of the carotid arteries, so Petitioner

failed to prove that it overpaid for this service.

45. On April 9, 1998, Patient 5 presented at Respondent's

office with complaints of left flank pain, nasal stuffiness,

headaches, and urinary incontinence on exertion. Interestingly,

the report from the thyroid echogram, which was performed on the

March 26 office visit and allowed by Petitioner, revealed an

enlargement and solid mass at the right lobe, but Respondent's

records contain no conclusions, diagnosis, or treatment plan for

this condition, focusing inst ead on cold and other minor

symptoms described above.

46. Respondent performed kidney and bladder echograms, to

rule out stones, cysts, or masses, and a sinus X ray. However,

he did not first perform a urinalysis -- instead ordering it

simultaneously -- to g ain a better focus on Patient 5's condition,

but his records contain no indication of the results of this

important test. Petitioner proved that it overpaid $61.57 and

$39.73 for the renal and bladder echograms, both of which were

normal, although the lef t kidney revealed some fatty tissue.

Although the results were normal, the sinus X ray was medically

necessary, so Petitioner failed to prove that it overpaid for

this service.

47. On May 13, 1998, Patient 5 presented at Respondent's

office with a compla int of chest congestion, "chronic" cough

(despite no prior indication of a cough in Respondent's

records), and shortness of breath of two or three days'

duration. Respondent administered a spirometry. Respondent

justified this test, in part, on Patient 5 's "acute exacerbation

of COPD," but Respondent's records reveal no other symptoms

consistent with a diagnosis of COPD. Administering spirometry

when confronted with common cold symptoms is not medically

necessary, so Petitioner proved that it overpaid $3 0.06 for this

service.

48. On June 29, 1998, Patient 5, who was diabetic,

presented at Respondent's office with complaints of gradual

onset of leg pain on exertion, alleviated by resting, and

cramping at night. A physical examination revealed no right

po sterior pedal pulse, grade 2 edema and dermatitis, and

bilateral varicose veins. Previous blood work had revealed high

cholesterol, triglycerides, and low - density lipoprotein

cholesterol. Respondent performed a doppler study of the

arteries of the lower extremities, which Petitioner allowed. He

also performed a doppler study of the veins of the lower

extremities and a duplex scan of the veins of the lower

extremities, both of which Petitioner disallowed. Petitioner

also downcoded the office visit.

49. Given Patient 5's diabetes and the laboratory work,

the disallowed study and scan were justified. Petitioner failed

to prove that the services were medically unnecessary or, as

noted in the Preliminary Statement, due to the absence of the

CPT manual, that the office visit should be downcoded, so

Petitioner failed to prove that it overpaid for these services.

50. On July 20, 1998, Patient 5 presented at Respondent's

office with complaints of diffuse abdominal pain and nausea

without vomiting. Respondent f ound that her liver was enlarged

and tender and performed a liver echogram. Petitioner's

disallowance of this service suggests an unfamiliarity with the

subsequent report dated August 28, 1998, that states that a CT

scan of the abdomen revealed possible m etastatic disease of the

liver and suggested correlation with liver echography. The

liver echogram was medically necessary, so Petitioner failed to

prove that it overpaid for this service.

51. On August 13, 1998, Patient 5 presented at

Respondent's offic e with complaints of low back pain of months'

duration and related symptoms. Respondent performed three NCVs,

including an H - Reflex. The NCVs suggested light peripheral

neuropathy. Petitioner failed to prove that these tests were

not medically necessary .

52. On August 18 and 28, 1998, Patient 5 visited

Respondent's office and received injections of vitamin B 12 and

iron. However, the medical necessity for these injections is

absent from Respondent's records. Respondent testified that the

iron was neede d to combat anemia, but this diagnosis does not

appear in the August 18 records. The August 28 records mention

anemia, but provide no clinical basis for this diagnosis.

Neither set of records documents the injections. Petitioner

proved that it overpaid $94.25 and $37.70 for these services.

53. On October 21, 1998, Patient 5 presented at

Respondent's office with complaints of chest congestion, cough,

and moderate shortness of breath of one day's onset, although

she had visited Respondent one week earlie r with the same

symptoms. Petitioner allowed an aerosol treatment, but

disallowed a maximum breathing procedure. Respondent testified

that the service was the administration of oxygen, which is

documented in the records and medically necessary. Petition er's

worksheets, which are Petitioner Exhibit 19, contain a

handwritten note, "no doc[umentation]," but the shortcomings in

Petitioner's evidence, as noted in the Preliminary Statement,

prevent Petitioner from proving that it overpaid for this

service.

54. On November 11, 1998, Patient 5 presented at

Respondent's office with complaints of weakness and fatigue of

five or six months' duration. Respondent has previously

diagnosed Patient 5 with hypothyroidism, and Respondent believed

that she was not respond ing to her medication for this

condition. Without ordering blood work to determine thyroid

function, Respondent performed a thyroid echogram. However,

this echography was not medically necessary, so Petitioner

proved that it overpaid $45.24 for this serv ice.

55. On December 4, 1998, Patient 5 presented at

Respondent's office with complaints of left chest and ribs pain

and recent faintness. Respondent ordered an X ray of the ribs

and conducted a physical examination, which revealed a regular

heart rhythm . The following day, Respondent performed an

echocardiogram and related doppler study. He had performed

these tests seven months earlier, but the results were

sufficiently different, especially as to new mitral and aortic

valve regurgitation, so as to ju stify re - testing. Given

Patient 5's poor health, these tests were medically necessary,

so Petitioner failed to prove that it overpaid for these

services.

56. On December 17, 1998, Patient 5 presented at

Respondent's office with complaints of cervical pai n of three or

four days' duration and radiating pain into the arms and hands.

Noting a decreased grip on both sides and relevant aspects of

Patient 5's history, Respondent performed two NCVs, including an

H - Reflex, and ordered a cervical X ray. One NCV r evealed

abnormalities, but the H - Reflex did not. These tests were

medically necessary, so Petitioner failed to prove that it

overpaid for these services.

57. On January 12, 1999, Patient 5 presented at

Respondent's office with complaints of blurred visio n, loss of

memory, dizziness, and fainting over several months' duration.

Respondent performed a carotid echogram, as he had on March 26,

1998. The results of the new carotid echogram were the same as

the one performed nine months earlier. The problem i s that,

again, Respondent betrays his fondness for diagnosis without

treatment, as he never addressed the abnormalities detected in

the earlier echogram, except to reconfirm their existence nine

months later. Petitioner proved that the second carotid

echo gram was not medically necessary, so it overpaid $99.14 for

this service.

58. On February 1, 1999, Patient 5 presented at

Respondent's office with continuing complaints of leg pain and

cramps. Respondent responded by repeating the doppler study of

the ve ins of the lower extremities and a duplex scan of the

veins of the lower extremities that he had performed only seven

months earlier and another duplex scan. The main difference in

results is that Respondent had suspected from the earlier tests

that Patie nt 5 suffered from "deep venous insufficiency," but he

found in the later tests that "mild vein insufficiency is

present." Again, though, the tests performed on February 1 lack

medical necessity, partly as evidenced by the failure of

Respondent to design a treatment plan for Patient 5 after either

set of test results. Petitioner proved that it overpaid

$99.14, $37.92, and $110.50 for these services.

59. On December 4, 1998, Patient 6 presented at

Respondent's office complaining of leg pain, mild shortne ss of

breath, and a cough. Except for the leg pain, the symptoms were

of two days' duration. Patient 6 was 35 years old and had a

history of schizophrenia and obesity.

60. Respondent performed a physical examination and found

decreased breathing with sc attered wheezing in both lungs and

decreased peripheral pulses, presumably of the lower

extremities, although the location is not noted in the medical

records. Respondent also found varices on both sides with

inflammatory changes and swelling of the ankle s.

61. Respondent ordered duplex studies of the vascular

system of the lower extremities and a doppler scan of the lower

extremities. The results revealed diffuse atheromatous changes

in the left lower extremity. Petitioner failed to prove that

these se rvices were not medically necessary.

62. On the same date, Respondent performed a spirometry,

which was "probably normal." Petitioner proved that this

procedure was not medically necessary because of the mildness of

the respiratory symptoms and their sho rt duration. Petitioner

overpaid $32.06 for this service.

63. Respondent saw Patient 6 on December 9, 12, and 15,

1998, for abdominal pain, but Petitioner has not disallowed any

of these services.

64. On December 28, 1998, Patient 6 presented at

Respond ent's office with complaints of neck pain with gradual

onset, now radiating to the upper and middle back, shoulders,

and arms, together with tingling and numbness in the hands.

Respondent performed three NCVs, including an H - Reflex, even

though the physic al examination had revealed active deep

reflexes and no sensory deficits or focal signs. The results

revealed mild abnormalities, which Respondent never discussed in

his notes or addressed in a treatment plan. Petitioner proved

that these services were n ot medically necessary, so Petitioner

overpaid $195.12, $73.96, and $21.64 for these services.

65. On February 2, 1999, Patient 6 presented at

Respondent's office complaining of three days of chills without

fever, left flank pain, and urinary frequency. Without first

performing a urinalysis, Respondent performed a kidney echogram

to rule out kidney stones. The echogram revealed no

abnormalities. Petitioner proved that the renal echogram was

not medically necessary, so it overpaid $62.37 for this service .

66. On August 25, 1998, Patient 7, who was 58 years old,

presented to Respondent's office with complaints of leg pains

and cramps of five or six months' duration and some

unsteadiness, as well as progressive numbness in her legs and

feet. Patient 7 als o complained of moderate shortness of

breath, anxiety, and depression. The physical examination

revealed decreased expansion of the lungs and decreased breath

sounds, limited motion of the legs and back, decreased

peripheral pulses (presumably of the legs ), edema (again,

presumably of the lower extremities), varices, and sensorial

deficit on the external aspect of the legs. Blood work

performed on August 25 was normal for all items, including

thyroid function, except that cholesterol was elevated.

67. Re spondent ordered a chest X ray and

electrocardiogram, which Petitioner allowed, but also ordered

doppler studies of the veins and arteries of the lower

extremities, an associated duplex scan, a spirometry, three NCVs

(including an H - Reflex), and a somatose nsory evoked potential

test (SSEP), all of which Petitioner denied. Like the NCV, the

SSEP is also an electrodiagnostic test that measures nerve

function. The NCVs suggested mild peripheral neuropathy, which

required clinical correlation, but the SSEP re vealed no

abnormalities. The doppler studies produced findings that "may

represent some early arterial insufficiency" and "may represent

some mild venous insufficiency," but were otherwise normal. The

spirometry revealed "mild airway obstruction."

68. T he results of the tests do not support their medical

necessity, nor do the complaints and findings preceding the

tests. Petitioner proved that both doppler studies, the duplex

scan, all three NCVs, the SSEP, and the spirometry were not

medically necessary . Petitioner overpaid $66.48, $38.75,

$108.58, $195.12, $73.96, $21.64, $42.68, and $17.70 for these

services.

69. Two days later, on August 27, 1998, Patient 7

presented at Respondent's office with swelling of her anterior

neck and pain for two weeks. She complained that her eyes were

protruding and large and that she had suffered mild shortness of

breath for two days. Respondent ordered an echogram of the

goiter, which Petitioner denied.

70. Respondent's records contain no acknowledgement of the

fact that, two days earlier, blood work revealed normal thyroid

function. Even if the laboratory results were not available

within two days of the draw, Respondent had to await the results

before proceeding to ultrasound. Petitioner proved that the

goiter ec hogram was not medically necessary, so it overpaid

$43.24 for this service.

71. On September 21, 1998, Patient 7 presented at

Respondent's office with complaints of chest pain, palpitations,

and shortness of breath. The physical examination revealed no

a bnormalities. Respondent performed an echocardiogram and

related doppler study, largely, as he testified, to rule out

thyrotoxicosis. However, as noted above, the blood work one

month earlier revealed no thyroid dysfunction, and the medical

records fail to account for this blood work in proceeding with a

thyroid rule - out diagnosis. Petitioner proved that these

services were not medically necessary, so it overpaid $117.23

and $51.34 for these services.

72. On October 6, 1998, Patient 7 presented at

Respo ndent's office with complaints of gradual loss of memory,

fainting, and blurred vision. Respondent performed a carotid

ultrasound, which revealed mild to moderate atheromatous change,

but no occlusion. Petitioner failed to prove that this test was

not me dically necessary. Petitioner also downcoded the office

visit, but, for reasons set forth above, its proof fails to

establish that the billed visit should be reduced.

73. On the next day, October 7, Patient 7 presented at

Respondent's office in acute dis tress from pain of three days'

duration in the legs, swelling, heaviness, redness, and fever.

The physical examination revealed swelling of the legs and

decreased peripheral pulses. Concerned with thrombophlebitis,

Respondent ordered a chest X ray to rul e out an embolism and a

duplex scan of the lower extremities, neither of which revealed

any significant abnormalities. Petitioner failed to prove that

these tests were not medically necessary.

74. On November 12, 1998, Patient 7 presented at

Respondent's office with complaints of abdominal pain and

vaginal discharge. One note states that the pain is in the left

upper quadrant, and another note states that the pain is in the

lower abdomen. The physical examination was unremarkable, but

Respondent ordered echograms of the pelvis and spleen, which

were essentially normal. Petitioner proved that the echograms

were not medically necessary, so it overpaid $46.03 and $51.34

for these services.

75. On November 30, 1998, Patient 7 presented at

Respondent's offi ce with complaints with worsening neck pain

radiating to the shoulders and arms and decreased muscle

strength on both sides. The physical examination uncovered

decreased grip, normal pulses, and no focal findings.

Respondent ordered three upper - extremity NCVs, including an

H - Reflex, and an SSEP. The tests did not produce significantly

abnormal results, such as to require any treatment beyond the

anti - inflammatory medications typically used to treat the

osteoarthritis from which Patient 7 suffered. Peti tioner proved

that the tests were not medically necessary, so it overpaid

$193.12, $73.96, $21.64, and $42.68 for these services.

76. One month later, on December 28, Patient 7 presented

at Respondent's office with continuing complaints of neck pain

and d ecreased muscle strength. Although the same three NCVs had

revealed nothing significant only one month earlier, Respondent

performed the same three tests. Petitioner proved that these

tests were not medically necessary, so it overpaid $195.12,

$73.96, an d $21.64 for these services.

77. On January 8, 1999, Patient 7 presented at

Respondent's office with complaints of right upper quadrant

abdominal pain of three days' duration with vomiting and urinary

disorders. The physical examination suggested tend erness in the

right upper quadrant of the abdomen. Respondent performed liver

and renal echograms, which were normal. Petitioner allowed the

liver echogram, but not the renal echogram. Petitioner proved

that the renal echograms were not medically necess ary, so it

overpaid $62.37 for this service.

78. On April 7, 1998, Patient 8, who was 48 years old and

suffered from diabetes, presented at Respondent's office with an

ulcer on her right foot with tingling, numbness, and muscle

weakness in both legs. Rel evant history included the amputation

of the right toe. The physical examination revealed an ulcer on

the right foot, but no tingling or numbness.

79. Respondent ordered an electrocardiogram and a doppler

study of the arteries of the lower extremities, b oth of which

Petitioner allowed. However, Petitioner denied a doppler study

of the veins of the lower extremities and a duplex scan of the

veins of the lower extremities and three NCVs of the lower

extremities, including an H - Reflex. The venous doppler s tudy

disclosed a mild degree of venous insufficiency and suggested a

mild to moderate peripheral vascula disease without occlusion.

The NCVs showed abnormal sensory functions compatible with

neuropathy. In place of a report on the H - Reflex test, a report

on an SSEP indicated some abnormalities. At the end of the

visit, Respondent sent Patient 8 to the hospital for treatment

of the infected foot ulcer.

80. Petitioner failed to prove that the NCVs, including

the H - Reflex or SSEP, and the venous doppler st udy were not

medically necessary. For reasons already discussed, Petitioner

also failed to prove that the office visit should be downcoded.

81. On August 18, 1998, Patient 8 presented at

Respondent's office with complaints of neck pain of two or three

we eks' duration, dizziness, blurred vision, and black outs.

Respondent ordered a carotid ultrasound, which revealed no

abnormalities. Given the compromised health of the patient,

Petitioner failed to prove that this service lacked medical

necessity.

82. O n August 26, 1998, Patient 8 presented at

Respondent's office with gastric complaints of three days'

duration radiating to the upper right quadrant and accompanied

by vomiting and occasional diarrhea. Patient 8 continued to

complain of neck pain. Since y esterday, Patient 8 reported that

she had had a frequent cough and shortness of breath. Her

history includes fatty food intolerance, nocturnal

regurgitations, and heartburn. The physical examination

revealed a soft, nontender abdomen and normal bowel sou nds.

83. With "diagnoses" of epigastric pain, abdominal pain,

and shortness of breath, Respondent performed, among other

things, a spirometry. Given the short duration of Patient 8's

respiratory complaints, Petitioner proved that the spirometry

was not medically necessary, so Petitioner overpaid $17.70 for

this service.

84. On September 29, 1998, Patient 8 presented at

Respondent's office with complaints of low back pain, malaise,

chills, fever, and urinary disorders, all of three days'

duration. The physical examination was unremarkable, but for

unrelated findings in the lower extremities. Respondent

performed an echogram of the kidneys, which revealed no

significant problems. Petitioner proved that this ultrasound

procedure was not medically necess ary, so it overpaid $61.57 for

this service. Respondent also billed for a diabetes test, but

the test results are omitted from the medical records.

Petitioner proved a lack of documentation for the diabetes, so

it overpaid $11.50 for this service.

85. O n December 11, 1998, Patient 8 presented at

Respondent's office with complaints of moderate neck pain,

numbness and weakness of the shoulders and arms, and tingling of

the hands, all of three or four months' duration. Diagnosing

Patient 8 with cervical di sc disease, cervical radiculitis, and

diabetic peripheral neuropathy, Respondent ordered three NCVs,

including an H - Reflex. The NCVs revealed some abnormalities,

but evidently not enough on which Respondent could make a

diagnosis and form a treatment plan .

86. Although this Recommended Order finds an earlier set

of NCVs of the lower extremities medically necessary, even

though Respondent did not act on them, these NCVs are different

for a couple of reasons. First, at the time of the lower -

extremity NCVs, Respondent was preparing to send Patient 8 to

the hospital, where follow - up of any abnormalities could be

anticipated. Second, the lower - extremity NCVs were of the part

of the body that had suffered most from diabetes, as Patient 8

had lost her toe. The NCVs performed on December 11 were

basically in response to persistent or recurrent complaints

about neck pain with an inception, for the purpose of this case,

in mid - August. The record reveals that Respondent exerted some

effort to diagnose the cause of the pain, but apparently never

found anything on which he could base a treatment plan, because

he never treated the pain, except symptomatically. From this

point forward, Respondent could no longer justify, as medically

necessary, diagnostic services for Patient 8's recurrent neck

pain, but instead should have referred her to someone who could

diagnose any actual disease or condition and provide appropriate

treatment to relieve or eliminate the symptoms. Petitioner

proved that the three NCVs were not med ically necessary, so it

overpaid $195.12, $73.96, and $21.64 for these services.

87. On January 12, 1999, Patient 8 presented at

Respondent's office with complaints of leg pain and heaviness of

"years'" duration. She "also" complained of lower abdominal

pain, more to the left side, of mild intensity, "but persistent

and recurrent," as well as a burning sensation in the vagina.

The physical examination is notable because Patient 8 reportedly

refused a vaginal examination. Failing to order a urinalysis,

R espondent proceeded to perform a pelvic echogram, as well as a

doppler study of the veins of the lower extremities and two

duplex scans of the arteries and veins of the lower extremities.

88. The omission of a urinalysis and a vaginal

examination -- or at least a compelling reason to forego a vaginal

examination -- renders the pelvic ultrasound, whose results were

normal, premature and not medically necessary. Except for the

duplex scan of the arteries, Respondent had performed these

lower - extremity procedu res nine months earlier, just prior to

Patient 8's hospitalization. Absent a discussion in the notes

of why it was necessary to repeat these tests when no treatment

plan had ensued earlier in 1998, these procedures were not

medically necessary, so Petitio ner overpaid $51.78, $99.14,

$37.92, and $110.50 for these services.

89. On January 29, 1998, Patient 9, who was 62 years old,

presented at Respondent's office with complaints of weakness and

numbness in his legs and fear of falling. A physical

examinati on revealed limited range of motion of both knees. The

deep reflexes were normal. Respondent performed three NCVs,

including an H - Reflex, and an SSEP, all of the lower

extremities. The SSEP was normal, but the NCVs produced results

compatible with bilat eral neuropathy. Petitioner failed to

prove that these services were not medically necessary.

90. On January 31, 1998, Patient 9 presented at

Respondent's office with complaints of chest congestion and

coughs of three days' duration, accompanied by short ness of

breath. This record adds COPD to his history. The physical

examination revealed normal full expansion of the lungs, but

rhonchis and wheezing on expiration. Respondent ordered a

spirometry, which revealed a mild chest restriction. Given the

chr onic pulmonary disease, Petitioner failed to prove that this

service was not medically necessary.

91. On April 14, 1998, Patient 9 presented at Respondent's

office with complaints of abdominal pain of three days' duration

with vomiting and diarrhea. His history included intolerance to

fatty foods. The physical examination found the abdomen to be

soft, with some tenderness in the right and left upper

quadrants, but no masses, and the bowel sounds were normal.

Respondent performed a liver echogram, which was normal.

Petitioner proved that the liver echogram was not medically

necessary, so it overpaid $44.03 for this service.

92. On May 8, 1998, Patient 9 presented at Respondent's

office with complaints of chest pain of moderate intensity

behind the stern um, together with palpitations that increased on

exertion and eliminated on rest. The physical examination

revealed regular heartbeats, a pulse of 84, and blood pressure

of 150/90. Respondent performed an electrocardiogram,

echocardiogram, and doppler ec hocardiogram. The

electrocardiogram revealed a cardiac abnormality that justified

the other procedures, so Petitioner failed to prove that these

services were not medically necessary.

93. On June 4, 1998, Patient 9 presented at Respondent's

office with c omplaints of malaise and fatigue, which had

worsened over the past couple of weeks. The physical

examination showed the lungs to be clear and the heartbeat

regular. Patient 9's pulse was 76 and blood pressure was

130/80. Respondent performed a chest X r ay and another

electrocardiogram, both of which were normal. Petitioner proved

that these services were not medically necessary, as the chest X

ray was unjustified by the symptoms and physical examination,

and an electrocardiogram had just been performed one month

earlier, so Petitioner overpaid $18.88 and $15.74 for these

services.

94. On July 1, 1998, Patient 9 presented at Respondent's

office with complaints of ongoing knee pain. Patient 9 had been

re - scheduled for knee surgery and required another cl earance.

Respondent performed another electrocardiogram, even though he

had performed one only three weeks ago, and the results had been

normal, as were the results from the July 1 procedure.

Petitioner proved that this service was not medically necessar y,

and it overpaid $15.74 for this service.

95. On August 14, 1998, Patient 9 presented at

Respondent's office with complaints of pain in his hands and

wrists of three or four months' duration, accompanied by

tingling in the fingers and a loss of strength in the hands.

Respondent performed two NCVs, which revealed findings

compatible with neuropathy, but the records reveal no action by

Respondent in forming a treatment plan or referring the patient

to a specialist. Petitioner proved that these services w ere not

medically necessary, so it overpaid $195.12 and $73.96 for these

services.

96. On March 9, 1998, Patient 10, who was three years old,

presented at Respondent's office with a sore throat with fever

and malaise. His history included asthma, and he had suffered

from mild shortness of breath and a dry cough of three days'

duration. The physical examination was unremarkable, except for

congested tonsils and scattered rhonchis, but no wheezes.

Respondent administered an aerosol, which was appropriate, given

the young age of the patient and his asthmatic condition.

Petitioner failed to prove that this service was not medically

necessary.

97. On the next day, Patient 10 again presented at

Respondent's office in "acute distress." Although his

temperatu re was normal, his pulse was 110. The findings of the

physical examination were the same as the prior day, except that

the lungs were now clear. Respondent billed for another aerosol

treatment, but the medical records omit any reference to such a

treatme nt. Petitioner proved that Respondent failed to maintain

documentation for this treatment, so Petitioner overpaid $10.03

for this service.

98. On May 21, 1998, Patient 10 presented at Respondent's

office with a cough, chest congestion, and mild shortness of

breath, but no fever. A physical examination revealed scattered

rhonchis, but no wheezes, and the boy's chest expression was

full. Diagnosing the patient with acute bronchitis, Respondent

administered a spirometry and an aerosol. Again, due to the a ge

of the patient and his asthma, Petitioner failed to prove that

the spirometry or aerosol was not medically necessary.

99. On August 18, 1998, Patient 10 presented at

Respondent's office with chest congestion, cough, and moderate

shortness of breath, al l of three days' duration. The physical

examination showed that the lungs were free of wheezes.

Respondent administered an aerosol and a chest X ray. The

aerosol was appropriate given the age of the patient and his

asthma. However, the chest X ray was inappropriate given the

clear condition of the lungs. Petitioner proved that the chest

X ray was not medically necessary, so it overpaid $18.88 for

this service.

100. On August 6, 1998, Patient 11, who was three years

old, presented at Respondent's offic e with a fever and sore

throat, both since the prior day, as well as abdominal pain of

two or three weeks' duration. The physical examination

disclosed that the abdomen was normal, as were the bowel sounds.

Respondent performed a kidney echogram, which w as normal. Given

the age of the patient, his overall health, and the lack of

confirming findings, Petitioner proved that the echogram was not

medically necessary, so it overpaid $61.57 for this service.

101. On October 1, 1998, Patient 12 presented at

Re spondent's office. Respondent billed an office visit, which

Petitioner allowed. This is the only item billed for Patient 12

during the audit period, so there is no dispute as to Patient

12.

102. On March 9, 1998, Patient 13, who was 30 years old,

presen ted at Respondent's office with complaints of back pain,

chills, burning urination, and general malaise, all of three

days' duration. She also complained of lower abdominal pain,

vaginal discharge, and pain during intercourse, but denied

abnormal genital bleeding. The physical examination disclosed

pain in the cervix on motion, but a normal temperature.

103. Respondent performed echograms of the kidneys and

pelvis to address his diagnoses of an infection of the kidneys

and pelvic inflammatory disease. H owever, he ordered no blood

work. The ultrasounds of the kidneys and the pelvis were

normal. The symptoms and findings justified a pelvic echogram,

but not a kidney echogram. Petitioner proved that the kidney

echogram was not medically necessary, so tha t it overpaid $61.57

for this service. Petitioner failed to prove that the pelvic

echogram was not medically necessary.

104. On March 17, 1998, Patient 13 presented at

Respondent's office with complaints of moderate chest pain

behind the sternum with pal pitations and anxiety. Diagnosing

chest pain, mitral valve prolapse, and anxiety, Respondent

ordered an electrocardiogram, which Petitioner allowed, and an

echocardiogram and doppler echocardiogram, which Petitioner

denied. The results from the latter pr ocedures were normal.

Petitioner failed to prove that these two procedures were not

medically necessary.

105. On June 12, 1998, Patient 13 presented at

Respondent's office with complaints of leg pain of two to three

months' duration with heaviness and di scomfort, especially at

night. Patient 13 also complained of mild shortness of breath

and moderate cough. The history included bronchial asthma. The

physical examination found normal full expansion of the lungs,

but scattered expiratory wheezes in both lungs, as well as a

possible enlarged and tender liver. The ankles displayed

moderate inflammatory changes. Respondent diagnosed Patient 13

with varicose veins with inflammation and bronchial asthma.

106. Respondent performed a doppler study of the vein s of

the lower extremities, a duplex scan of these veins, and a

spirometry, which Petitioner denied, and an aerosol, which

Petitioner allowed. The doppler study suggested a mild degree

of venous insufficiency with bilateral varicose veins and edema.

The spirometry revealed a moderate chest restriction and mild

airway obstruction. Petitioner failed to prove that any of

these services were not medically necessary.

107. On March 10, November 16, and December 18, 1998,

Patient 14 presented at Respondent's o ffice. On each occasion,

Respondent billed an office visit, which Petitioner allowed.

These are the only items billed for Patient 14 during the audit

period, so there is no dispute as to Patient 14.

108. On March 18, 1998, Patient 15 presented at

Respon dent's office. Respondent billed an office visit, which

Petitioner allowed. This is the only item billed for Patient 15

during the audit period, so there is no dispute as to Patient

15.

109. On March 16 and 19 and April 8,1998, Patient 16

presented at R espondent's office. On each occasion, Respondent

billed an office visit, which Petitioner allowed. These are the

only items billed for Patient 16 during the audit period, so

there is no dispute as to Patient 16.

110. On September 4, 1998, Patient 17, wh o was 52 years

old, presented at Respondent's office with complaints of leg

pain after exertion and cold feet, as well as low back pain of

several years' duration that had worsened over the past two to

three weeks. Patient 17 also complained of low back p ain that

had persisted for several years, but had worsened over the past

two to three weeks. The history included an heart bypass. The

only abnormalities on the physical examination were decreased

expansion of the chest, edema of the ankles, decreased

pe ripheral pulses, and cold feet.

111. Respondent performed a duplex scan of the arteries of

the lower extremities, a spine X ray, and an injection to

relieve back pain, all of which Petitioner allowed. Respondent

also performed an electrocardiogram, which Petitioner denied.

Even though the electrocardiogram revealed several

abnormalities, nothing in the symptoms, history, or examination

suggests any medical necessity for this procedure. Petitioner

proved that the electrocardiogram was not medically neces sary,

so Petitioner overpaid $15.74 for this service.

112. Four days later, on September 8, Patient 17 presented

at Respondent's office with complaints of continuing low back

pain, now radiating to the legs. The history and findings from

the physical exa mination were identical to those of the office

visit four days earlier. Respondent performed three NCVs,

including an H - Reflex, which revealed a mild neuropathy.

However, the symptoms and history did not justify these

diagnostic procedures focused on the legs when the back was the

longstanding problem area, nor did Respondent have any treatment

plan for the back problem. Eventually, according to

Respondent's testimony, a month or two later, he sent this

patient to the hospital, where he could receive tre atment for

this painful condition. Petitioner proved that the three NCVs

were not medically necessary, so it overpaid $195.12, $73.96,

and $21.64 for these services.

113. On October 2, 1998, Patient 17 presented at

Respondent's office with complaints of chest pain on exertion of

three days' duration. The physical examination disclosed

decreased breath sounds in the lungs, but a regular rhythm of

the heart. Respondent performed an echocardiogram, doppler

echocardiogram, and duplex scan of the extracrania l arteries.

Given the patient's history of coronary artery disease and heart

bypass, Petitioner failed to prove that these services were not

medically necessary.

114. On December 10, 1998, Patient 17 presented at

Respondent's office with complaints of le ft flank pain and

bilateral back pain of three days' acute duration, as well as

urinary disorder and nausea. The physical examination was

unremarkable. Respondent performed a kidney echogram, which was

negative, to address his working diagnoses of urinar y tract

infection and kidney stones. However, Respondent performed no

urinalysis, and the complaints did not justify elaborate

diagnostics to rule out the improbable condition of stones.

Petitioner proved that the kidney echogram was not medically

necess ary, so it overpaid $59.57 for this service.

115. On October 9, 1998, Patient 18, who was 35 years old,

presented at Respondent's office with complaints of chest pain

and palpitations of gradual onset over nearly one year,

unrelated to exertion and accomp anied occasionally by moderate

shortness of breath. Patient 18 reported that she had smoked

heavily for several years and suffered from intermittent

smoker's cough and phlegms. Relevant history included asthma

and bronchitis. The physical examination re vealed that the

lungs were clear and the chest expanded fully. Petitioner

allowed several cardiac diagnostic procedures, but denied a

spirometry and aerosol, the former as medically unnecessary and

the latter as lacking documentation. The spirometry reve aled

severe chest restriction. Given the results of the spirometry

and the history of Patient 18 as a heavy smoker, Petitioner

failed to prove that the spirometry was not medically necessary,

but, given the mild symptoms at the time of the treatment,

with out regard to whether Respondent provided documentation,

Petitioner proved that the aerosol was not medically necessary,

so it overpaid $10.62 for this service.

116. On October 16, 1998, Patient 18 presented at

Respondent's office with complaints of persi stent neck pain,

radiating to the arms and hands. The physical examination

disclosed a substantial limitation in range of motion of the

neck, but no focal signs. Respondent performed three NCVs,

including an H - Reflex, and an SSEP of the upper extremities ,

which revealed some abnormalities. Notwithstanding the positive

findings, the absence of any treatment plan undermines the

medical necessity of these diagnostic procedures. In response

to these findings, Respondent merely changed Patient 18's anti -

infl ammatory medication, which he obviously could have done with

negative NCVs and an SSEP. Petitioner has proved that the three

NCVs and SSEP were not medically necessary, so it overpaid

$195.12, $73.96, $21.64, and $42.68 for these services.

117. On Octobe r 17, 1998, Patient 18 presented at

Respondent's office with complaints of pelvic pain and vaginal

discharge with left flank pain and urinary disorders. She also

complained of leg pain and fatigue after standing. A previously

performed urinalysis had rev ealed blood in the urine. The

physical examination found vaginal discharge and pain in cervix

motion to the right and left sides. It also found normal

peripheral pulses and normal movement in all limbs, although

some varicosities and inflammatory changes were present.

Respondent performed echograms of the kidneys and pelvis and a

doppler study and duplex scan of the veins of the lower

extremities. Although both echograms were normal, these

procedures were justified due to the symptoms and findings. The

procedures performed on the lower extremities, which revealed a

mild degree of venous insufficiency, were not justified by the

complaints or findings. Petitioner failed to prove that the

echograms were not medically necessary, but proved that the

doppler and duplex procedures were not medically necessary, so

it overpaid $38.75 and $108.58 for these services.

118. On November 18, 1998, Patient 18 presented at

Respondent's office with complaints of weakness of two to three

months' duration and eating disor ders. The physical examination

uncovered a palpable, enlarged thyroid, even though, one month

earlier, the physical examination found the thyroid to be non -

palpable. Although the medical records indicate that Respondent

ordered laboratory tests of thyroi d function, no such reports

are in his medical records, and, more importantly, he performed

a thyroid echogram, which was normal, prior to obtaining the

results of any laboratory work concerning thyroid function.

Petitioner proved that the echogram was no t medically necessary,

so it overpaid $45.24 for this service.

119. On January 21, 1999, Patient 19, who was four months

old, presented at Respondent's office with a cough. Eight days

earlier, Patient 19 had presented at Respondent's office with

the same condition, and Respondent had recommended that the

patient's mother hospitalize him if the symptoms worsened. A

physical examination revealed that the lungs were clear and the

chest fully expanded. Respondent administered an aerosol.

Petitioner proved that the aerosol was not medically necessary,

so it overpaid $10.97 for this service.

5 1

120. On February 2, 1998, Patient 21, who was 46 years

old, presented at Respondent's office with complaints of

generalized headache and chest discomfort. For the past two

weeks, Patient 21 had also suffered from painful urination. The

relevant history included non - insulin - dependent diabetes and

paranoid schizophrenia. The physical examination indicated that

Patient 21's heart beat in regular rhythm. Patient 21's bloo d

pressure was 190/105, and his cholesterol and triglyceride were

high. His femoral and popliteal pulses were decreased.

121. Respondent performed an electrocardiogram, which

Petitioner allowed, and, after learning that the results were

borderline abnorm al, an echocardiogram and doppler

echocardiogram, which Petitioner denied. Given the symptoms,

Respondent was justified in proceeding with additional

diagnostic tests, especially given the difficulty of treating a

schizophrenic patient. Petitioner failed to prove that the

echocardiogram and doppler echocardiogram were not medically

necessary.

122. On March 2, 1998, Patient 21 presented at

Respondent's office with complaints, of four months' duration,

of leg pain when standing or walking a few blocks. Th e physical

examination revealed decreased peripheral pulses. Respondent

performed a doppler study and duplex scan of the veins of the

lower extremities, which were both normal. Given the diabetes

and schizophrenia, these diagnostic procedures were justif ied.

Petitioner failed to prove that these services were not

medically necessary.

123. On April 2, 1998, Patient 21 presented at

Respondent's office with complaints of worsening leg pain, now

accompanied by numbness and tingling in the feet and sensorial

deficit on the soles of the feet. The physical examination was

substantially the same as the one conducted one month earlier,

except that the deep reflexes were hypoactive. Respondent

performed three NCVs, including an H - Reflex, on the lower

extremities , and they revealed abnormal motor functions.

However, the failure of Respondent to prepare a treatment plan

or refer Patient 21 to a specialist precludes a finding of

medical necessity. Petitioner has proved that these NCVs were

not medically necessary, so it overpaid $195.12, $73.96, and

$21.64 for these services.

124. On April 30, 1998, Patient 21 presented at

Respondent's office with complaints of difficulty urinating for

the past three or four days. A physical examination revealed an

enlarged, tend er prostate. Forming a working diagnosis of

prostatitis and chronic renal failure, Respondent performed

prostate and kidney echograms, which were both normal, but no

laboratory work on the urinary problems. Petitioner failed to

prove that the prostate ec hogram was not medically necessary,

but proved that the kidney echogram was not medically necessary,

so it overpaid $61.57 for this service.

125. On July 3, 1998, Patient 21 presented at Respondent's

office with complaints of visual disorders, dizziness, blacking

out, and fainting, all of several months' duration. Respondent

performed a carotid echogram, which was normal. Petitioner

failed to prove that this service was not medically necessary.

126. On August 4, 1998, Patient 21 presented at

Respondent' s office with complaints of moderate neck pain of

five or six months' duration, radiating to the shoulders and

arms and accompanied by tingling and numbness of the hands. The

physical examination disclosed decreased femoral and popliteal

pulses, limited m otion in the neck and shoulders, pain in the

shoulders upon manual palpation, pain in the wrists upon passive

movements, and decreased grip on both sides. Respondent

performed two NCVs, including an H - Reflex, and an SSEP, all of

the upper extremities. Th e NCVs suggested bilateral carpal

tunnel syndrome, and the SSEP showed some abnormalities of nerve

root function. Respondent responded to these data with a

prescription for physical therapy three times weekly.

Petitioner failed to proved that the two NCV s and SSEP were not

medically necessary.

127. On September 1, 1998, Patient 21 presented at

Respondent's office with complaints of "chest oppression" and

hypertension since the previous day. Patient 21 also complained

of moderate neck pain and urinary discomfort of three days'

duration. His blood pressure was 160/100, and his heart was in

regular rhythm. Respondent performed an electrocardiogram,

which Petitioner allowed, and a 24 - hour electrocardiogram with a

halter monitor, after learning that the results of the initial

electrocardiogram were abnormal. Petitioner disallowed the

latter procedure, but failed to prove that it was not medically

necessary.

128. On October 6, 1998, Patient 21 presented at

Respondent's office with complaints of chest pai n, dizziness,

fainting, excessive hunger and weight gain, and weakness. His

blood pressure was 170/100, and his pulse was 88. His heart

beat in a regular rhythm, and his thyroid was enlarged, but

smooth. Respondent performed an echogram of the thyroid, even

though he had not ordered laboratory work of thyroid function.

He performed an echocardiogram and a doppler echocardiogram.

All echograms were normal, although Patient 21 suffered from

some mild to moderate sclerosis of the aorta. Petitioner proved

that these echograms were not medically necessary because the

thyroid echogram was not preceded or even accompanied by

laboratory work of thyroid function, and the other procedures of

repeated diagnostic tests that Respondent had performed eight

months ea rlier and were normal at that time. Petitioner thus

overpaid $43.24, $61.96, and $29.31 for these services.

129. On November 6, 1998, Patient 21 presented at

Respondent's office. Petitioner downcoded the office visit,

but, as discussed above, the failur e of Petitioner to produce

the CPT manual prevents a determination that Respondent

overbilled the visit.

130. On January 4, 1999, Patient 21 presented at

Respondent's office with complaints of flank pain of four

months' duration accompanied by several uri nary disorders,

chills, and occasional fever. The physical examination revealed

a distended and soft abdomen and tenderness in the flanks and

right upper quadrant. Respondent performed a kidney ultrasound,

despite having performed one eight months earlie r and obtained

normal results, but learned this time that the left kidney had a

cyst consistent with chronic renal failure. Petitioner failed

to prove that this service was not medically necessary.

131. On January 29, 1999, Patient 21 presented at

Respon dent's office with complaints of moderate back pain of two

weeks' duration, radiating to the legs, and weakness in the

legs. The physical examination revealed pain on bending

backward or forward and muscle spasm. Respondent performed a

lumbar X ray, whic h Petitioner allowed, and three lumbosacral

NCVs, including an H - Reflex, which Petitioner denied. The NCVs

revealed mild neuropathy, although an SSEP, evidently billed as

an H - Reflex, was normal. Petitioner failed to prove that these

services were not me dically necessary.

132. The total overpayments, before extrapolation, from

Petitioner to Respondent are thus $5952.99.

CONCLUSIONS OF LAW

133. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Fl a. Stats.

134. Section 403.913(7), Florida Statutes, requires:

When presenting a claim for payment under

the Medicaid program, a provider has an

affirmative duty to supervise the provision

of, and be responsible for, goods and

services claimed to have bee n provided, to

supervise and be responsible for preparation

and submission of the claim, and to present

a claim that is true and accurate and that

is for goods and services that:

(a) Have actually been furnished to the

recipient by the provider prior t o

submitting the claim.

(b) Are Medicaid - covered goods or

services that are medically necessary.

* * *

(f) Are documented by records made at the

time the goods or services were provided,

demonstrating the medical necessi ty for the

goods or services rendered. Medicaid goods

or services are excessive or not medically

necessary unless both the medical basis and

the specific need for them are fully and

properly documented in the recipient's

medical record.

The agency may de ny payment or require

repayment for goods or services that are not

presented as required in this subsection.

135. Section 409.913(1)(d), Florida Statutes, provides:

(d) "Medical necessity" or "medically

necessary" means any goods or services

necessary to palliate the effects of a

terminal condition, or to prevent, diagnose,

correct, cure, alleviate, or preclude

deterioration of a condition that threatens

life, causes pain or suffering, or results

in illness or infirmity, which goods or

services are pro vided in accordance with

generally accepted standards of medical

practice. For purposes of determining

Medicaid reimbursement, the agency is the

final arbiter of medical necessity.

Determinations of medical necessity must be

made by a licensed physician e mployed by or

under contract with the agency and must be

based upon information available at the time

the goods or services are provided.

136. Section 403.913(1)(e), Florida Statutes, provides:

"' Overpayment' includes any amount that is not authorized t o be

paid by the Medicaid program whether paid as a result of

inaccurate or improper cost reporting, improper claiming,

unacceptable practices, fraud, abuse, or mistake."

137. Section 403.913(11), Florida Statutes, provides:

The agency may deny payment or require

repayment for inappropriate, medically

unnecessary, or excessive goods or services

from the person furnishing them, the person

under whose supervision they were furnished,

or the person causing them to be furnished.

138. Likewise, Section 403.91 3(15)(f), Florida Statutes,

authorizes Petitioner to seek any remedy provided by law if:

The provider or person who ordered or

prescribed the care, services, or supplies

has furnished, or ordered the furnishing of,

goods or services to a recipient which ar e

inappropriate, unnecessary, excessive, or

harmful to the recipient or are of inferior

quality[.]

139. Section 403.913(20), Florida Statutes, authorizes

Petitioner to use random sampling and statistical extrapolation

to determine overpayments. Section 403.913(21), Florida

Statutes, requires Petitioner to conduct audits showing how it

calculated the overpayment.

140. Section 403.913 (22), Florida Statutes, provides:

The audit report, supported by agency work

papers, showing an overpayment to a provider

c onstitutes evidence of the overpayment.

. . . Notwithstanding the applicable rules

of discovery, all documentation that will be

offered as evidence at an administrative

hearing on a Medicaid overpayment must be

exchanged by all parties at least 14 days

b efore the administrative hearing or must be

excluded from consideration.

141. Petitioner has the burden of proving by a

preponderance of the evidence the overpayments for which it

seeks reimbursement. Southpointe Pharmacy v. Department of

Health and Reh abilitative Services , 596 So. 2d 106 (Fla. 1st DCA

1992).

142. Petitioner proved that, prior to extrapolation, it

overpaid Respondent $5952.99 for covered services, not

$11,248.14, as asserted in the audit report .

RECOMMENDATION

It is

RECOMMENDED that t he Agency of Health Care Administration

enter a final order determining that, prior to extrapolation,

Respondent owes $5952.99 for overpayments under the Medicaid

program.

DONE AND RECOMMENDED this 26th day of May, 2006, in

Tallahassee, Leon County, Flori da.

S

___________________________________

ROBERT E. MEALE

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 (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of May, 2006.

COPIES FURNISHED:

Alan Levine, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Christa Calamas, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Driv e, Mail Stop 3

Tallahassee, Florida 32308

Jeffries H. Duvall

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Craig A. Brand

Law Offices of Craig A. Brand, P.A.

5201 Blue Lagoon Drive, Suite 720

Miami, Flor ida 33126

Oscar Mendez - Turino

2298 Southwest 8th Street

Miami, Florida 33135

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 issue the Final Order in this case.