STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER A. KLOTZ, D.M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 94-3544

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

BOARD OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Don W. Davis, held a formal hearing in the above- styled case on October 5, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William M. Furlow, Esquire

KATZ, KUTTER, ET AL.

Post Office Box 1877 Tallahassee, Florida 32302-1877

For Respondent: Allen R. Grossman, Esquire

Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Floirda 32399-1050 STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner should be certified to take the Florida dental license examination.

PRELIMINARY STATEMENT

By letter dated October 25, 1993, and subsequently amended by letter dated November 2, 1993, Respondent denied Petitioner's application to sit for the Florida dental examination as a result of disciplinary action taken against Petitioner's license in another jurisdiction. Petitioner sought formal administrative proceedings to contest Respondent's denial. Subsequently, the matter was transferred to the Division of Administrative Hearings for conduct of formal hearings pursuant to Section 120.57(1), Florida Statutes.

At the final hearing, Petitioner presented the testimony of three witnesses, including himself, and one composite exhibit. Respondent presented testimony of two witnesses.

The transcript of the final hearing was filed with the Division Of Administrative Hearings on October 24, 1994.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner is Christopher A. Klotz. He received an undergraduate degree and a Master's degree from Pennsylvania State University. In 1978, he received a dental degree from the University of Pittsburgh. He practiced dentistry in Pennsylvania until 1992, pursuant to a valid Pennsylvania license first issued in 1978. In 1992, he moved to the State of Florida.

   
   

2. In October of 1993, Klotz applied for licensure to practice dentistry in Florida. The application was received by Respondent on October 7, 1993. In that application, Klotz answered "No" to the question "Have you ever been convicted or found guilty - regardless of adjudication - of a crime in any jurisdiction, or have you ever been a defendant in a military court-martial?"

   
   

3. In the same application, Klotz disclosed that his license in the state of Pennsylvania had been subjected to disciplinary action. The disciplinary action in that jurisdiction, pursuant to a stipulated settlement, consisted of a

   $1,000 fine imposed by the Pennsylvania Board of Dentistry.

   
   

4. Disciplinary action in Pennsylvania resulted from one count of medicaid fraud filed against Klotz in 1989. The action was taken in response to allegations that he overbilled the Pennsylvania Medical Assistance Program for an amount between $2,203 and $2,298. This was adjusted to reflect an amount of

   $1,683 over a 26 month period in which Klotz billed a total of $128,387 in the program. He was not criminally prosecuted for the offense in that state, but instead was diverted into the "Accelerated Rehabilitative Disposition" program. Conditions of that program required that Klotz complete two years of probation, make a treble damage payment to the Department of Public Welfare of $5,050, make a payment of $1,000 to cover investigative costs, provide payment of his participatory costs in the program, and resign from the Medical Assistance Program for three years. Successful completion by Klotz of all conditions resulted in the dismissal of charges and expungement of all criminal records of the matter.

   
   

5. At the time that Klotz practiced dentistry in Pennsylvania, there was great public debate within dental circles regarding the cumbersomeness of the medicaid payment process. He admitted at final hearing that his participation in the program was voluntary and that he accepted responsibility for the overbilling by his staff that occurred in medicaid cases in his practice. The evidence presented, however, fails to establish that Klotz was personally aware of or involved in billing improprieties or fraud.

   
   

6. Klotz had little to do with actual billing for patient care, leaving the matter of preparation of that paperwork to a secretary who performed the task by reviewing the medical charts completed by Klotz. He became aware of the possibility of improper billing after an investigator came to his office with a subpoena for records. Thereafter he saw that the necessary corrections in his billing practice were made. While Klotz's consented settlement with the Pennsylvania Board of Dentistry resulted in the Board's finding that fraud was committed, evidence presented in this proceeding does not establish that Klotz

   specifically intended to defraud the public assistance program or to receive reimbursement to which he was not entitled.

   
   

7. As established by his candid, forthright testimony and other evidence in this proceeding, Klotz was responsible for the filing of claims, prepared by his staff, for dental fillings, preparations for fillings and laboratory relines that did not comply with the existing regulations of the Pennsylvania medical program. The evidence also establishes that he is a truthful and honest person who is a good dental practitioner and is unlikely to again become involved in inappropriate billing practices.

   
   

8. In December Klotz set for and passed his national boards. He has participated in ten dental related courses and meetings in Florida since November, 1993 to the present in order to keep current in the profession of dentistry.

   
   

9. Respondent's position is that Klotz's application must be denied solely on the basis that his license was acted against by another state, in accordance with authority granted by provisions of Section 466.028(1)(b), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

    
    

11. Petitioner bears the burden of demonstrating his fitness to practice dentistry, subject to successful completion of the licensure examination. Fla. DOT v.J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA, 1981).

    
    

12. Section 466.028(2)(a), Florida Statutes, states that Respondent may deny an application for licensure. Such denial is authorized when the applicant's license in another jurisdiction has been subjected to discipline. Section 466.028(1)(b), Florida Statutes. Respondent has promulgated a rule containing disciplinary guidelines applicable to those situations. Rule 59Q- 13.005, Florida Administrative Code. (Formerly 61F5-13.005, Florida Administrative Code.)

    
    

13. Subsection (3) of Rule 59Q-13.005, Florida Administrative Code, appears to direct that a final order denying licensure is mandated when an applicant has been disciplined in a foreign jurisdiction. Such a view ignores an in pari materia reading of the rule, inclusive of subsection (4) of Rule 59Q-13.005, Florida Administrative Code. That subsection of the rule provides that Respondent may deviate from such a penalty in the face of aggravating or mitigating factors and, in paragraphs (a) through (o), categorizes those factors.

    
    

14. Application of the categories of mitigating circumstances set forth in paragraphs (a) through (o) of subsection (4) of Rule 59Q-13.005, Florida Administrative Code, to the facts of this case reveals:

a.) The severity of the underlying offense involved an alleged over billing of only $1,683 over a 26 month period in which Klotz billed a total of $128,387. There was no active criminal prosecution. The Pennsylvania Board of Dentistry, with access to all of the facts, imposed a fine of only $1,000.

b.) No evidence was presented that any patients were improperly treated or that Klotz is likely to overbill in the future.

c.) The number of patients or offenses was not the subject of any proof presented at the final hearing.

d.) The events underlying the proceedings in Pennsylvania occurred over six years ago.

e.) Klotz has never been the subject of any other license discipline proceeding in any other jurisdiction.

f.) Klotz has previously practiced dentistry from 1978 until 1992.

g.) There is no showing of damage to any patients by treatment by Klotz. Compensation to the public by virtue of overbilling was recompensed by Klotz's treble damage payment of $5,050.

h.) There is no evidence that deterring Klotz from the practice of dentistry in Florida is necessary to prevent him from engaging in future wrongful conduct.

i.) Denied licensure, Klotz will obviously be unable to practice his chosen profession in the state in which he has chosen to reside.

k.) The record is absent any showing that Klotz was aware of any billing improprieties, prior to an investigator from the Medical Assistance Program bringing the matter to his attention.

l.) The unrebutted testimony of Klotz establishes that he took action to correct deficiencies in billing practices after he was made aware of those matters.

m.) There were no other related charges against Klotz in Pennsylvania.

n.) There are no related penalties to be imposed pursuant to Sections (2) or (3) of Rule 59Q-13.005, Florida Administrative Code.

o.) Other relevant mitigation includes testimony at the final hearing attesting to Klotz's good character and his proficiency as a dentist.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered permitting Petitioner to sit for the Florida dental license examination.

DONE AND ENTERED this 10th day of November, 1994, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 10th day of November, 1993.

APPENDIX

The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings.

1.-2. Adopted in substance, but not verbatim.

3. Rejected, unnecessary.

4.-14 Adopted in substance, but not verbatim. Respondent's Proposed Findings.

1.-3. Adopted, but not verbatim. 4.-5. Rejected, unnecessary.

6.-8. Adopted, but not verbatim.

1. Rejected, subordinate to HO findings.

2. Incorporated by reference.

11.-14. Rejected, subordinate to HO findings. 15.-18. Adopted in substance, but not verbatim.

19. Rejected, argument.

20.-21. Adopted.

22. Subordinate to HO findings. 23.-26. Rejected, relevancy.

COPIES FURNISHED:

Allen R. Grossman, Esq. Department of Legal Affairs The Capitol, Suite 1603

Tallahassee, Florida 32399-1050

William M. Furlow, Esq. KATZ, KUTTER, ET AL.

P.O. Box 1877

Tallahassee, Florida 32302-1877

Harold D. Lewis General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

William Buckhalt Executive Director Board of Dentistry

Agency for Health Care Administration The Northwood Centre

1940 N. Monroe St.

Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-003544

Orders for Case No: 94-003544