STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF CHIROPRACTIC EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5267

)

MICHAEL PETKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before William R. Cave, Hearing Officer, Division of Administrative Hearings, on January 12, 1989, in Deland, Florida. The issue for determination is whether the Respondent's license to practice as a chiropractic physician in the state of Florida should be suspended, revoked or otherwise disciplined for the alleged violation of Chapter 460, Florida Statutes, set forth in the Administrative Complaint filed September 28, 1988.

APPEARANCES

For Petitioner: Cynthia Shaw, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0760

For Respondent: Paul Bernardini, Esquire

LaRue, Bernardini, Seitz & Tresher Post Office Drawer 2200

Daytona Beach, Florida 32015-2200 BACKGROUND

By an Administrative Complaint dated September 27, 1988, and filed with the Division of Administrative Hearings on October 27, 1988, Petitioner seeks to revoke, suspend or otherwise discipline the license of Respondent, Michael A. Petker, as chiropractic physician in the state of Florida. As grounds therefor, it is alleged that Respondent submitted to a third party payor a claim for services rendered to an insured without providing a copy of the claim to the insured in violation of Section 460.413(1)(bb), Florida Statutes.

In support of its charges, Petitioner presented the testimony of Richard Turner and Patricia Melina. Petitioner's exhibit 1 was received into evidence. Respondent presented no witnesses. Respondent's exhibits A, B, C, D, E and F were received into evidence.

The parties submitted posthearing Proposed Findings Of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times material to this proceeding, Respondent was a licensed chiropractic physician in the state of Florida with license number CH 0003034.

   
   

2. Respondent treated Mr. Richard Turner several times between February 3, 1988 and February 13, 1988. Respondent had treated Turner previously and, in fact, had been Turner's chiropractic physician for several years before treating him on this occasion.

   
   

3. Turner had health care coverage through the Daytona Beach Community College Health Care Plan. However, Turner had not met the $200.00 annual deductible at this time. Therefore, Respondent allowed Turner to pay $20.00 per visit to be applied to the portion of his bill not covered by insurance.

   
   

4. Turner furnished Respondent's office with certain information concerning his insurance coverage and was made aware by Respondent's office that a claim for reimbursement would be filed with Turner's insurance carrier as had been done on previous occasions.

   
   

5. Respondent filed a claim for reimbursement with the Daytona Beach Community College Health Care Plan for services rendered Turner but failed to provide a copy of this billing to Turner until some 2 to 3 months after filing with the insurance carrier.

   
   

6. Respondent was not reimbursed for these services by Turner's insurance carrier or Turner; therefore, a claim was filed in the County Court of Volusia County, Florida against Turner. The court awarded the Respondent a judgment in the amount of the unpaid balance, plus costs.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

   
   

8. Section 460.413(1), Florida Statutes, empowers the Board of Chiropractic (Board) physicians to revoke, suspend or otherwise discipline the license of a chiropractic physician licensed in the state of Florida found guilty of any one of the acts enumerated in Section 460.413(1), Florida Statutes.

   
   

9. Respondent is charged with the violation of Section 460.413(1)(bb), Florida Statutes, for submitting a claim to a third-party payor for services rendered without at the same time providing a copy of the claim to the insured.

   
   

10. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1 DCA Fla. 1977). Petitioner has sustained its burden of proof to clearly show that

Respondent failed to follow the strict "letter" of the law by providing the insured a copy of the claim at the same time the claim was filed with the third- party payor. However, it is equally clear that Respondent followed the "spirit" of the law by giving the insured actual notice, albeit verbal, of his intent to file an insurance claim and later providing the insured with a copy of such claim.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Board enter of Final Order reprimanding Respondent, Michael A. Petker for his failure to strictly comply with Section 460.413(1)(bb), Florida Statutes.

Respectfully submitted and entered this 16th day of February, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5267

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 5.

4. Adopted in Finding of Fact 5.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 5.

4. Adopted in Findings of Fact 2 and 4.

5. Adopted in Finding of Fact 4.

6. Adopted in Finding of Fact 6.

COPIES FURNISHED:

Cynthia Shaw, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0760

Paul Bernardini, Esquire

LaRue Bernardini, Seitz & Tresher Post Office Drawer 2200

Daytona Beach, Florida 32015-2200

Lawerence A. Gonzalez, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Pat Guilford, Executive Director Department of Professional Regulation, Board of Chiropractic

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005267

Orders for Case No: 88-005267