10-010210 Northside Hospital And Heart Institute vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Tuesday, December 13, 2011.

Summary: Petitioner failed to satisfy its burden of proving that $2,557.95 in charges submitted for payment was improperly disallowed by the carrier pursuant to section 440.13, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTHSIDE HOSPITAL )

AND HEART INSTITUTE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10210

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF )

WORKERS ' COMPENSATION , )

)

Respondent, )

)

and )

)

PINELLAS COUNTY SCHOOLS, )

)

Intervenor . )

)

RECOMMENDED ORDER

Pursuant to notice, on November 7, 2011, a formal hearing

in this cause was held in Tallahassee, Florida, before the

Division of Administ rative Hearings by its designated

Administrative Law Judge Linzie F. Bogan.

APPEARANCES

For Petitioners: Joseph W illiam May, Esquire

Bacen and Jordan, P.A.

4801 South University Drive, Suite 3100

Davie, Florida 33328

For Responden ts: Mari H. McCully, Esquire

Department of Financial Services

Division of Workers ' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

For Intervenor: Debi Hershner , Qualified Representative

InterCare Medical Management, Inc.

250 East Park Avenue

Lakes Wales, Florida 33853

STATEMENT OF THE ISSUE

Whether $2,557.95 , in charges submitted by Petitioner for

payment , were im properly disallowed by the carrier pursuant to

section 440.1 3, Florida Statutes (2009). 1/

PRELIMINARY STATEMENT

In May 2010, Petitioner, Northside Hospital and Heart

Institute (Northside Hospital), provided services to

P atient M.P. (M.P.) , who sustained a compensable injury while

working for her employer, Pinell as County Schools (Intervenor).

Northside Hospital submitted for payment a bill in the amount of

$51,829.60 for services rendered to M.P. The bill submitted by

Northside Hospital was audited by Pinellas County Schools , and

$2,620.39 of the total charges submitted was disallowed. By

stipulation of the parties, it was agreed that some of the

charges that were originally disallowed should not have been,

and , accordingly, the disallowed amount, for purposes of the

instant proceeding, is $2,557.95.

On Augu st 16, 2010, Northside Hospital filed with the

Department of Financial Services, Division of Workers '

Compensation (Division), a Petition for Resolution of

Reimbursement Protest. Subsequently, on October 5, 2010,

Northside Hospital filed with the Division a Petition for

Administrative Review and/or Hearing (Petition). On

November 12, 2010, the Petition was referred by the Department

of Financial Services to the Division of Administrative Hearings

for a disputed fact hearing and the issuance of a recommend ed

order.

A Notice of Hearing by Video Teleconference was issued

setting the case for formal hearing on February 3 and 4, 2011.

On January 20, 2011, the parties filed an Agreed Motion to

Continue Final Hearing, and the same was granted. This cause

was t hen rescheduled for final hearing on April 21 and 22, 2011.

On April 13, 2011, the parties, during a case management

teleconference, moved, ore tenus, that the case be placed in

abeyance. The motion was granted. On May 26, 2011, the

abeyance was lifted , and the matter was scheduled for final

hearing on August 19, 2011.

On August 10, 2011, this cause was transferred to the

undersigned. On August 12, 2011, Northside Hospital filed an

Unopposed Motion for Continuance. The motion was granted , and

the fi nal hearing was rescheduled for November 7, 2011.

At the hearing, Northside Hospital presented the testimony

of Mavourneen Watson. Neither the Division , nor Pinellas County

Schools , offered witness testimony. Joint Exhibits A through H

were admitted int o evidence.

A Transcript of the proceeding was filed with the Division

of Administrative Hearings on November 16, 2011. The parties

timely filed Proposed Recommended Orders, which have been

considered in the preparation of this Recommended Order.

FIN DINGS OF FACT

1. The following facts, as reflected in the parties '

supplemental joint pre - hearing statement and as set forth in

this paragraph, are stipulated to by the parties:

(A) Petitioner is a Florida licensed hospital

and is a " health care provide r " within the meaning of

section 440.13(1) and Florida Administrative Code Rule

69L - 7.602.

(B) Petitioner billed Intervenor $51,829.60 for

pre - authorized inpatient surgery rendered to an

injured employee/claimant on May 13, 2010.

(C) Intervenor is a car rier within the meaning

of section 440.13(1) and rule 69L - 7.602(1).

(D) Petitioner ' s bill complies with applicable

state and federal requirements, including rules

69L - 7.602(4)(b) and 69L - 7.100, which incorporate by

reference the Florida Workers ' Compensat ion

Reimbursement Manual for Hospitals. 2/

(E) Petitioner received payment from Intervenor

in the amount of $6,768.00. Intervenor ' s payment was

attached to an Explanation of Bill Review (EOBR)

issued by Johns Eastern Company, Inc. , " on behalf of

the carri er and all affected parties. "

(F) As for explaining Intervenor ' s bases for

disallowance or adjustment of payment, the EOBR

advised Petitioner, as to each line item charge, as

follows:

Charge exceeds Fee Schedule allowance.

Payment adjusted: payment modi fied pursuant

to [Intervenor] charge analysis.

Paid: no modification to the information

provided on the medical bill: payment made

pursuant to Florida Workers ' Compensation

Reimbursement Manual for Hospitals.

Nurse Review audit of this bill brought the

allowed charges below the $51,400.00 stop -

loss point. This is being paid at the per

diem rate for surgery per the Florida

Workers ' Compensation reimbursement manual

for hospitals 2006, 2nd revision.

(G) Payment was also accompanied by

documentation of a bill audit (also documented as a

" nurse review " ) which was conducted by InterCare

Medical Management, Inc. (InterCare). The InterCare

audit determined that the Hospital ' s total billed

charges of $51,829.60 should be reduced by $2,620.39 3/

for a number o f charges which InterCare determined

were not documented in the medical records, were

duplicate charges, or were not medically necessary.

(H) The most significant finding of the

InterCare audit was $2,547.00 in charges for time

spent in the post - anesthesi a care unit (PACU) , which

InterCare alleged was not medically necessary. Based

upon such findings, InterCare advised Johns Eastern

that " total payment should be $6,768.00 as compared to

$37,747.88 if you had paid that at the regular fee

schedule. "

(I) Fo r its services, InterCare was paid

$7,994.97.

2. On March 8, 2010, M.P. injured her back while

performing work - related duties for her employer, Pinellas County

Schools. Due to the severity of M.P. ' s injury, surgical

intervention was necessary.

3. Prio r to M.P. ' s surgery, her physician prepared " post -

anesthesia orders " which established the general treatment

parameters for her post - anesthesia recovery. The physician ' s

post - anesthesia orders directed, in part, as follows: t hat

M.P. should be admitted t o the PACU; that the " PACU Protocol for

Vital Signs " should be followed; and that prior to discharge

from the PACU , the patient should " [m]eet PACU discharge

criteria with Aldrete score of 8 or above. " 4/

4. On May 13, 2010, M.P. reported to Northside Hos pital to

have surgery performed on her fractured lumbar vertebra. Upon

admission to the hospital, it was noted that M.P. had previously

experienced anesthesia - related nausea and vomiting. M.P. was

placed under general anesthesia and at 3:46 p.m., the sur geon

commenced the operation. Upon completion of the operation,

M.P. ' s surgeon left the operating room at 4:09 p.m. There were

no complications encountered during the surgery , and when

transferred to the PACU, M.P. was in stable condition. For

billing p urposes, 4:09 p.m., was the start - time for the initial

hour of PACU time.

5. M.P. arrived in the PACU at 4:24 p.m., and remained

there until 8 :00 p.m. While in the PACU, M.P. was evaluated by

medical staff at regular intervals. There was no testimony

o ffered during the final hearing by any member of the PACU

medical staff that had responsibility for monitoring M.P. while

she was in the PACU.

6. Upon initial PACU assessment at 4:24 p.m., it was noted

that M.P. denied experiencing pain and was able to move all of

her extremities with equal strength bilaterally. At 5:00 p.m.,

M.P. was resting quietly and napping at intervals with stable

vital signs. At 5:20 p.m., M.P. complained of l evel 7 pain in

her lower back and was administered Dilaudid, per

post - anesthesia orders, to help her with pain management. At

5:30 p.m., M.P. was turned onto her left side in an attempt to

make her more comfortable. At 5:55 p.m., M.P. was given

additional Dilaudid in an attempt to further alleviate her pain ,

which by thi s time had decreased to a rating of l evel 5. At

5:55 p.m., M.P. also complained of pain radiating into her right

hip and thigh. At 6:30 p.m., it was noted that M.P. had been

sleeping, and according to the patient, was feeling much better.

At 6:30 p.m., the following was also noted in M.P. ' s chart:

" have been waiting for room assignment, but there is still none

available . . . both [patient and] family aware. " Twenty

minutes later, at 6:50 p.m., it was noted that there was no

change in M.P. ' s condition , and her vital signs remained stable.

At 7:10 p.m. , it was noted that M.P. complained of nausea, and

per post - anesthesia orders, she was given Zofran. M.P. reported

at this time that her low back pain had decreased to a rating of

level 3 and that the pai n in her right hip and thigh had

completely resolved. M.P. ' s family was allowed to visit her in

the PACU at 7:30 p.m., because the PACU was " still waiting for a

bed assignment. " At a point - in - time between 7:30 p.m. , and

7:39 p.m., a nursing supervisor ca lled the PACU and advised that

M.P. would be transferred out of the PACU to room 103. The

final PACU assessment of M.P. was performed at 7:40 p.m. , when

it was noted that M.P. reported that her " nausea has subsided,

but [was] not entirely gone " and that h er assessment was

otherwise unchanged, her vital signs were stable, and she had

only mild discomfort in the area of her back where the surgery

occurred. M.P. did not vomit during the nearly four hours that

she received care in the PACU.

7. While in th e PACU, M.P. ' s PAR score was assessed a

total of 14 times in 15 - minute intervals. Between 4:26 p.m. and

7:25 p.m., M.P. ' s PAR score was consistently rated at level 9.

At 7:40 p.m. , M.P. ' s PAR score increased to a level 10 as a

result of her level of cons ciousness increasing from a rating of

level 1 to a rating of level 2.

8. Petitioner ' s internal policy RR - P - 25 (PACU policy) is

the hospital ' s written policy statement governing the PACU. The

policy provides that the purpose of the PACU is " [t]o provide

intensive management of the post anesthetic patient and/or post

procedure patient. " Because M.P. received a higher level of

skilled nursing care while in the PACU, Petitioner charged more

for these nursing - related services as compared to the nursing

servi ces that M.P. received when transferred out of the PACU.

9. Petitioner ' s PACU policy sets forth the following

criteria for discharge from the PACU:

A. A final nursing assessment and evaluation

of the patient ' s condition will be

performed and documented . The post

anesthesia nurse shall discharge the

patient in accordance with the criteria

and data collected through use of the

nursing process.

1. The patient has regained consciousness.

2. The airway is clear and danger of

vomiting and aspiration is past.

3. Circulatory and respiratory vital signs

are stabilized.

4. Post anesthesia recovery score (PAR)

[of] 8, 9, or 10.

B. When discharge criteria is [sic] not

fully met the anesthesiologist must be

notified for a direct order to discharge

the patient.

10 . Petitioner billed for the PACU services provided to

M.P. in one - unit increments where the first unit represents one

hour of service and each additional unit represents 30 minutes

of service. For PACU services provided to M.P., Petitioner

billed for seve n units at a total cost of $7,310.00. The first

unit was billed at $2,216.00 with each remaining unit billed at

$849.00.

11. With respect to the billed services, the following

disallowed charges are in dispute: the final three units of

PACU services ($8 49 .00 x 3 = $2,547.00); Cefax sodium 500mg

($9.95); and Hydrocodone/APAP 5/500 ($1.00).

12. The first discharge criterion of the PACU policy

provides that the patient must have regained consciousness. The

stipulated evidence shows that M.P. was conscious at 4:24 p.m. ,

upon initial transfer to the PACU. Other than occasional

periods of napping, M.P., at all times while in the PACU,

remained conscious as reflected in her PAR scores.

13. The second element of the PACU discharge criteria

requires that the p atient have a clear airway and that the re is

no longer a danger of vomiting and aspiration. Petitioner

offered no evidence which suggests that at any time during

M.P. ' s stay in the PACU , there was concern about her airway

being obstructed. Of course, it is of general knowledge that an

individual ' s airway can become obstructed by vomit under certain

circumstances. However, in the instant case, there is nothing

in the PACU notes that supports a reasonable inference that the

PACU nursing staff had concerns about M.P. 's not having a clear

airway.

14. As for the portion of the criteria that requires that

the danger of vomiting must have passed, it is undisputed that

at 7:10 p.m., M.P. complained of nausea and was treated for this

complaint with Zophran. At 7:40 p.m., M.P. was still

experiencing nausea , but was , nevertheless , cleared for transfer

out of the PACU at 7:45 p.m. , a mere five minutes later. Upon

arrival at her non - PACU room, M.P. " promptly vomited and the

receiving nurse placed [a] call to Dr. Ne matbakhsh, " M.P. ' s

surgeon. M.P. was neither returned to the PACU following the

vomiting episode , nor was she reassessed to see if she had been

prematurely discharged from the PACU. Instead, the vomit was

cleaned, M.P. was placed in her newly assigned no n - PACU room,

and the PACU nurse that transported M.P. to her non - PACU room

transferred M.P. to the care of non - PACU staff. Accordingly,

M.P. ' s onset of nausea at 7:10 p.m. , did not justify her

remaining in the PACU for approximately another 45 minutes.

1 5. The third PACU discharge criterion requires that

" circulatory and respiratory vital signs " be stabilized. M.P.,

during the entirety of her stay in the PACU, received the

highest possible PAR - related scores for respiration and

circulation. Clearly, M.P . ' s circulatory and respiratory vital

signs were stable.

16. The fourth PACU discharge criterion requires that the

patient must have a PAR of level 8, 9, or 10 in order to be

eligible for discharge from the PACU. As previously noted,

M.P. ' s PAR score n ever fell below a nine during the entirety of

her stay in the PACU.

17. Petitioner offered the testimony of Mavourneen Watson ,

who currently works for Petitioner in the capacity of regional

manager for revenue integrity. Petitioner did not offer any

te stimony regarding Ms. Watson ' s job duties, responsibilities,

training, or experience as it relates to her current position.

Although Ms. Watson indicated that she is a registered nurse,

there was no testimony elicited from her detailing the nature of

any specialized knowledge, skills, or experience that she

possesses, or whether she has received any special training that

would otherwise qualify her to offer opinion testimony in the

present case.

18. Ms. Watson reviewed M.P. ' s medical records. Based

upo n her review of the records, Ms. Watson offered opinion

testimony that it would have been medically inappropriate to

discharge M.P. from the PACU at any time prior to 7:45 p.m. ,

because prior to this time, M.P. was experiencing nausea and

vomiting and her pain level was not under control. The

undersigned rejects Ms. Watson ' s medical opinion testimony ,

because Petitioner failed to establish that Ms. Watson is

qualified to render such an opinion. 5/

19 . Ms. Watson also offered opinion testimony regarding

Pet itioner ' s contention that the $1.00 charge for

Hydrocodone/APAP 5/500 should be allowed as a part of

Petitioner ' s claim for payment. Ms. Watson opined that the

$1.00 charge should be allowed because M.P. ' s medical records

show where she was given " Vicodin 5/500 PO prn for pain " and

" Hydrocodone is the [same as] Vicodin. " It may indeed be the

case that Hydrocodone is the same as Vicodin. However, because

Petitioner failed to establish that Ms. Watson is qualified to

offer opinion testimony regarding the p harmacological

composition of Hydrocodone and Vicodin, her opinion in this

regard cannot be accepted.

2 0 . Ms. Watson also offered opinion testimony in support

of Petitioner ' s contention that the $9.95 charge for Cefax

sodium 500mg should be allowed as p art of Petitioner ' s claim for

payment. Ms. Watson testified that M.P. ' s hospital records show

where she was administered Cefazolin and that this drug is the

same as Cefax. As with the Hydrocodone, discussed supra ,

Petitioner has also failed to establish that Ms. Watson is

qualified to offer opinion testimony regarding the

pharmacological composition of Cefax and Cefazolin.

Accordingly, Ms. Watson ' s opinion in this regard cannot be

accepted.

CONCLUSIONS OF LAW

2 1 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla . Stat . (201 1 ).

2 2 . The general rule is that " the burden of proof, apart

from statute, is on the party asserting the affirmative of an

issue before an a dministrative tribunal. " Balino v. Dep ' t of

HRS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977). Section 440.13,

the controlling statute, is silent as which party bears the

burden of proof. In the instant dispute, Northside Hospital, by

alleging that it is owe d money, is the party asserting the

affirmative. Consequently, Northside Hospital bears the burden

of establishing by a preponderance of the evidence its

entitlement to the payment which it seeks. 6/ See Dep ' t of

Banking & Fin., Div. of Sec. & Investor Pr ot. v. Osborne Stern

& Co. , 670 So. 2d 932, 934 (Fla. 1996); Young v. Dep ' t of Cmty.

Aff. , 625 So. 2d 831, 834 (Fla. 1993); Espinoza v. Dep ' t of Bus.

& Prof ' l Reg. , 739 So. 2d 1250, 1251 (Fla. 3d DCA 1999); Fla.

Dep ' t of Transp. v. J.W.C. Co. , 396 So. 2d 7 78, 788 (Fla. 1st

DCA 1981); and § 120.57(1)(j) ( " Findings of fact shall be based

upon a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . . " ).

2 3 . A preponderance of the e vidence is defined as " the

greater weight of the evidence " or evidence that " more likely

than not " tends to prove a certain proposition. Gross v. Lyons ,

763 So. 2d 276, 280 n.1. (Fla. 2000).

2 4 . Section 440.13(1)(t) and (6 ) , provides as follows:

(1)(t) " Utilization review " means 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, o r office visits based on

medically accepted standards. Such

evaluation must be accomplished by means of

a system that identifies the utilization of

medical services based on practice

parameters and protocols of treatment as

provided for in this chapter.

* * *

(6) Utilization review. -- Carriers 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 accordance 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 extent 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

disallow or adjust payment for such services

or error without order of a judge of

compensation claims or the department, if

the carrier, in making its determination,

has complied with this section and rules

adopted by the department.

25 . Petitioner failed to offer sufficient evidence to

satisfy its burden of proving that it was appropriate for M.P.

to remain in the PACU from 6:30 p.m., until the time of her

discharge from the PACU at 8:00 p.m. Accordingly, the thre e

additional units of PACU charges totaling $2,547.00 were

properly disallowed.

26. Petitioner also failed to offer sufficient evidence to

satisfy its burden of proving th e appropriateness of the $1.00

charge for Hydrocodone and the $9.95 charge for Cefax sodium

500 mg .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED that Respondent, Department of Financial

Services, Division of Workers ' Compensation, enter a final

order:

1. Finding t hat the $2,557.95 in charges submitted by

Petitioner, Northside Hospital and Heart Institute, for

payment w as properly disallowed by Intervenor, Pinellas County

Schools; and

2. Dismissing the Petition for Administrative Review

and/or Hearing filed by Nor thside Hospital and Heart Institute.

DONE AND ENT ERED this 13th day of December , 2011 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildi ng

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of December , 2011 .

ENDNOTES

1/ All references to Fl orida Statutes are to the 2009 edition ,

unless otherwise indicated.

2/ This purported stipulation sounds more in the nature of a

conclusion of law. Accordingly, it will not be treated as a

stipulation of fact, but, instead, as an issue of law upon whic h

the parties agree, as contemplated by the Order of Pre - Hearing

Instructions issued herein.

3/ The parties stipulated at the commencement of the hea ring

that this amount should have been amended and that the actual

disallowed amount in dispute is $2,557 .95.

4/ The Aldrete score is synonymous with the post anesthesia

recovery score (PAR). The PAR score is a numerical quotient

derived from assessing a patient ' s activity, respiration,

circulation, consciousness, and color. Each of these respective

categ ories is assigned a value range of between zero and two .

The scores from each category, when totaled, represent the

patient ' s PAR score.

5/ Section 90.702, Florida Statutes, provides as follows:

If scientific, technical, or other

specialized knowledge will assist the trier

of fact in understanding the evidence or in

determining a fact in issue, a witness

qualified as an expert by knowledge, skill,

experience, training, or education may

testify about it in the form of an opinion;

however, the opinion is admissible only if

it can be applied to evidence at trial.

6/ There is no presumption that a PACU patient remains

ineligible for discharge (i.e. , does not meet discharge

criteria) until such time as a formal discharge assessment

occurs. To allow for suc h a presumption would result in the

ultimate burden of proof being impermissibly shifted to a party

other than Northside Hospital.

COPIES FURNISHED :

Julie Jones, CP, FRP, Agency Clerk

Department of Financial Services

Division of Legal Services

200 East Ga ines Street

Tallahassee, Florida 32399 - 0390

Joseph William May, Esquire

Bacen and Jordan, P.A.

4801 South University Drive, Suite 3100

Davie, Florida 33328

Mari H. McCully, Esquire

Department of Financial Services

Division of Workers ' Compensation

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Debi Hershner

InterCare Medical Management, Inc.

250 East Park Avenue

Lake Wales, Florida 33853

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.