STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF OPTOMETRY, )

)

Petitioner, )

)

vs. ) Case No. 96-6067

)

RICK J. BILLINGS, O.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on November 18-19, 1997, in Sarasota, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: William C. Childers, Esquire

Thomas Wright, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: A. S. Weekley, Jr., M.D., Esquire

Holland & Knight LLP

510 Vonderburg Drive Suite 3005

Brandon, Florida 33511 STATEMENT OF THE ISSUES

Whether Respondent, Rick J. Billings, O.D., committed the acts alleged in the Administrative Complaint and, if so, what

disciplinary action shall be taken against his license to practice optometry.

PRELIMINARY STATEMENT

On October 10, 1996, the Agency for Health Care Administration, filed an Administrative Complaint against Respondent Rick J. Billings, O.D. (Respondent), alleging in three counts that Respondent violated Section 463.016(1)(h), Florida Statutes. Respondent challenged the charges and timely requested a formal hearing. The matter was forwarded to the Division of Administrative Hearings on December 27, 1996, for assignment of an administrative law judge to conduct the formal hearing.

Prior to the final hearing, the Agency for Health Care Administration was granted leave to amend the Administrative Complaint. The five-count Amended Administrative Complaint (Complaint) alleged that Respondent violated Section 463.016 (1)(h), Florida Statutes, by failing to comply with various statutes and rules. According to the Complaint, Respondent failed to do the following: (1) provide the degree of care required by Section 463.0135(1), Florida Statutes, by not fulfilling the examination requirements of Rule 59V-3.007, Florida Administrative Code; (2) provide the degree of care consistent with patient conditions required by Rule 59V-3.010 (1), Florida Administrative Code; (3) provide the degree of care which conforms to that level of care provided by practitioners in the same or similar communities as required by

Section 463.0135(1), Florida Statutes; and (4) keep adequate optometric records as required by Section 463.016(1)(k), Florida Statutes. Finally, the Complaint alleged that Respondent unlawfully received a fee for referring a patient in violation of Section 455.657, Florida Statutes.

At hearing, Petitioner presented the testimony of three witnesses: Respondent, Rick J. Billings, O.D.; Phyllis Glass; and Peter Liane, O.D., an expert witness. Petitioner offered and had three (3) exhibits admitted into evidence. Respondent testified on his own behalf and presented the testimony of three witnesses: Murray Golden, Executive Director of Sarasota Cataract Institute; Harry Grabow, M.D., an expert witness; and

G. Timothy Petito, O.D., an expert witness. The Respondent offered twenty-two (22) exhibits, all but one of which were accepted into evidence. The record was left open for the filing of late-filed exhibits. During this period, Petitioner’s Exhibit 1, the deposition of Respondent, and Respondent’s Exhibit 22, the deposition of R. Stephen Everett, were filed.

A transcript of the proceeding was filed on December 3, 1997. By agreement of the parties and at the conclusion of the hearing, the time set for filing proposed recommended orders was more than ten days after the transcript was filed. Both parties timely filed their proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

1. Petitioner, the Department of Health (Petitioner), is the state agency charged with enforcing the statutes and regulations governing the practice of optometry in the State of Florida. However, at the time the complaints in this cause were filed, this responsibility was assigned to the Agency for Health Care Administration.

2. Respondent, Rick J. Billings, O.D., is, and has been at all times relevant to this proceeding, a licensed optometrist in the State of Florida, having been issued License No. OP 0001816 in 1983. Respondent is a Board-certified optometrist and has practiced in Sarasota, Florida, for 13 years.

3. Patient D.R. first presented to Respondent on August 18, 1992. At the time of the initial visit, Patient D.R., a ninety- year old female, was accompanied by her niece, Phyllis Glass. During that initial visit Respondent performed a pre- operative examination, including a vision test, on Patient D.R. Based on his examination, Respondent diagnosed a cataract in Patient D.R.’s left eye and recommended surgical removal of the cataract by Harry B. Grabow, M.D. Notwithstanding this recommendation, Patient D.R. was free to return to her former ophthalmologist had she chosen to do so.

4. Dr. Grabow is an ophthalmic surgeon, Board-certified in ophthalmology in the State of Florida and by the American Board

   of Eye Surgery. Dr. Grabow has been in private practice in Sarasota, Florida, for 20 years and his medical practice is known as the Sarasota Cataract Institute.

5. Patient D.R. was first seen by Dr. Grabow on September 2, 1992, and again for a pre-operative visit on September 18, 1992. Dr. Grabow performed surgery for the cataract of Patient D.R.’s left eye on September 22, 1992.

6. During his treatment of Patient D.R., Dr. Grabow provided her with written instructions regarding pre-operative and post-operative care and activity, and with medications or prescriptions and written instructions for their use. These printed instructions had been previously discussed with Respondent.

7. Dr. Grabow saw Patient D.R. post-operatively on the first post-operative day, September 23, 1992, and then discharged her to return to the care of Respondent. Thereafter, Respondent assumed responsibility for Patient D.R.'s care.

8. On October 5, 1992, Patient D.R. presented to Respondent for a post-operative visit. At that time, Respondent conducted a problem-specific post-operative examination of Patient D.R. The examination included tests for visual acuities, far and near, corrected and uncorrected, to assess the patient's need for glasses; keratometry; refraction assessment; external examination; slit-lamp pupillary examination; test of

   macular regions; and bio-microscopy. Respondent was unable to perform a tonometry because Patient D.R. refused.

9. The results of the October 5, 1992, post-operative examination of Patient D.R. were recorded on a form provided by Dr. Grabow; supplied all the information about Patient D.R. that Dr. Grabow needed; and was completed by Respondent in a format that was useful to Dr. Grabow.

10. During the October 5, 1992, office visit, Respondent scheduled Patient D.R. for a re-check in four weeks. However, the patient cancelled her appointment. Thereafter, someone from Respondent’s office called Patient D.R. to make an additional follow-up appointment, but the patient refused, believing that a follow-up visit was unnecessary.

11. Respondent kept the required written optometric records regarding Patient D.R. and otherwise met the applicable standard of care. The written optometric records made and maintained by Respondent were such that a similarly trained optometrist could have treated Patient D.R. after review of her record.

12. The tests performed by Respondent on Patient D.R. during her October 5, 1992, visit were appropriate in a post- operative co-management situation. Likewise, Respondent properly recorded the examinations and the results thereof.

13. During Patient D.R.’s post-operative visit, Respondent did not list medications or re-instruct Patient D.R. regarding medication use. Because Respondent made no changes in the post- operative medication or instructions given by Dr. Grabow, it was unnecessary for Respondent to make notations concerning them. Respondent would have made such notations only if he were changing the previously issued instructions or writing a new prescription.

14. Respondent did not record any information relative to patient education because verbal and written instructions concerning eye care had been provided to Patient D.R. by

    Dr. Grabow. Furthermore, it was unnecessary for Respondent to repeat or elaborate on those instructions, absent a change or an indication that the patient did not understand the instructions. In this case, there was neither a change in Dr. Grabow’s instructions nor any indication that Patient D.R, did not understand those instructions.

15. On or about October 8, 1992, Dr. Grabow received from Respondent the post-operative co-management information regarding Patient D.R. The information on Patient D.R. that Respondent provided was what Dr. Grabow expected and needed. Similarly, Dr. Grabow determined that the tests performed by Respondent on Patient D.R. during her post-operative visit were

    adequate for his purposes and met the standard of care for optometrists as well as opthalmologists.

16. On November 26, 1991, prior to seeing Patient D.R., Respondent entered into a Supervised Co-Management Agreement (Agreement) with Dr. Grabow and Sarasota Cataract Institute. Prior to entering into the Agreement, Dr. Grabow and the Sarasota Cataract Institute determined that Respondent was capable of competent post-operative co-management of cataract patients. Moreover, it was determined that Respondent’s post- operative care record met the standard of care for an optometrist in that community. Pursuant to the Agreement, Respondent was permitted to participate in the post-operative care of cataract patients. However, the ultimate responsibility for the care of the co-managed patient remained Dr. Grabow's, as the operating and supervising surgeon.

17. It is Dr. Grabow's custom and standard practice to see his post-operative cataract patient only once. Because patient needs may vary, Dr. Grabow’s practice is to leave the frequency and duration of post-operative examinations to the discretion of the co-managing optometrist who assumes responsibility for the patient.

18. Since entering into the Agreement with Respondent, Dr. Grabow has been satisfied with the care that Respondent rendered to patients which they co-manage, including Patient

    D.R. In all cases, Dr. Grabow has always provided whatever supervision was necessary, although no such supervision was required during the course of Patient D.R.'s post-operative care.

19. There is no defined standard of care in the statutes or the Board's rules that apply to co-management of post- operative cataract patients. The standards are left to the discretion of the co-managing physicians. Here, the protocol crafted by Dr. Grabow and Respondent became the standard of care, and the post-operative care of Patient D.R. met the applicable standard of care as well as the expectations of Dr. Grabow.

20. The eye examinations required of an optometrist in a post-operative co-management situation are left up to the professional judgment of the doctor or doctors involved, and depending on the type of cataract surgery, the techniques used by the surgeon and the agreement between the co-managing physicians. Respondent performed an examination consistent with that judgment.

21. At all times material hereto, there were no published requirements that specified or enumerated the examinations that should be performed on post-surgery cataract patients. However, with regard to the examinations performed on Patient D.R. during her post-operative care visit, Respondent provided care within

    the applicable community standard. Respondent's notations of the results of the examinations are consistent with the standard of care.

22. There are no statutes, rules, or guidelines requiring an optometrist to provide patients with instructions regarding their medication or to record a rescheduled visit in the patient's medical record. In this case, based on the Agreement and his previous discussions with Dr. Grabow, Respondent knew what medications and instructions Patient D.R. had been given by Dr. Grabow. In this regard, Respondent met the standard of care.

23. At all times relevant to this proceeding, Medicare permitted a global fee for cataract surgery, which was allowed to be divided in co-management care between an ophthalmologist and optometrist. Under the Medicare-prescribed fee schedule, optometrists who provided post-operative care were able to collect 20% of the global fee; and the operating and supervising physician could receive 80% of the global fee. The division of the global fee between Dr. Grabow and Respondent in Patient D.R.'s case was in compliance with Medicare regulations.

24. Pursuant to 1992 Medicare rules related to billing, the doctor who assumed care in the post-operative period and received the permitted 20% of the global fee was responsible for the care of the cataract patient for up to 90 days after the

    patient’s first post-operative visit to that physician. After he had seen the patient for one post-operative visit, the doctor was allowed to bill for this twenty percent. No specific number of visits was required in order to bill for 20% of the global fee. However, Medicare did require that the co-managing optometrist assume responsibility for the post-operative care of the patient for the ninety-day period.

25. In 1992, Respondent charged $220.00 for post- operative care for cataract patients. These charges included seeing the patient a minimum of one time after the surgery and being available for a ninety-day period thereafter. Consistent with this fee schedule, Patient D.R. as Medicare patient, was charged and paid a co-payment or estimated deductible of $44.00. Respondent's billing service then, billed the difference,

    $176.00 to Medicare. This post-cataract surgery care bill submitted to Medicare by Respondent was proper as to the amount claimed for the services provided.

26. With respect to the type of claim that was being filed, however, Respondent's billing service mistakenly filed the claim for Patient D.R.’s post-operative case as an unassigned claim. As a result of the claim being incorrectly designated as an unassigned claim, Medicaid sent 80% of the Medicare approved amount for the post-operative services,

    $174.86, to Patient D.R.

27. In late January 1993, Patient D.R.’s niece received a call from a member of Respondent’s office staff concerning the

    $174.86 check. During the conversation, Ms. Glass was told that the charge for post-operative services was $220.00 and that the

    $174.86 check had been sent to Patient D.R. in error. Subsequently, Ms. Glass telephoned Respondent to discuss the matter. Respondent explained to Ms. Glass that the check

    $174.86 represented his portion of the total charge for post- operative cataract services. Respondent further explained that this amount included his being available to Patient D.R. for ninety days from October 5, 1992, the date of her post-operative visit to Respondent's office.

28. Respondent's representations and those of his staff were substantiated in the Explanation of Medicare Benefits Statement (Explanation) sent to Patient D.R. According to the Explanation, which was dated November 9, 1992, Respondent’s charge for “care after [cataract] operation" was $220, but the Medicare approved amount for these services was $218.57. After deducting the 20% co-payment amount paid by Patient D.R. to Respondent, the Medicare approved payment for post-operative care was determined to be $176.86. The Explanation noted that because the provider did not accept assignment, Patient D.R. would receive this payment.

29. After receiving the Explanation and communicating with Respondent's office and billing service, Patient D.R. and her family incorrectly assumed that Respondent’s bill for Patient D.R.'s post-operative care was fraudulent. Ms. Glass did not believe that Respondent performed post-operative services for her aunt, and apparently misunderstood or was unaware of the co- management agreement between Dr. Grabow and Respondent. In fact, Ms. Glass and/or her husband were so concerned about Respondent's bill that they wrote letters of complaint to various governmental agencies “alerting them to the fact that we [feel] that there was a miscarriage of justice.”

30. Respondent’s billing records related to Patient D.R.’s post-operative care were reviewed by experts in the area of Medicare and the Medicare Fraud Branch Operations. These reviews failed to disclose any indication that Respondent was guilty of fraud, deceit, negligence or incompetence, or misconduct in the practice of optometry. Similarly, there was no finding that Respondent improperly billed Medicare for services provided to Patient D.R.

31. The Medicare check in the amount of $176.86 for post- operative services Respondent provided to Patient D.R. was never forwarded to Respondent nor did he ever receive payment for these services.

32. In 1992, a co-management situation such as occurred in this case was not deemed to be an improper fee division or receiving a fee for a referral. The arrangement was legal, and pursuant thereto, it was appropriate for the optometrist and the ophthalmologist to both receive payment from Medicare for the services they performed.

33. There was nothing found in review of Patient D.R.'s record to indicate an unlawful kickback in cash or in kind nor a violation of Section 455.657, Florida Statutes.

34. Except for the complaints arising out of the Respondent's treatment of Patient D.R., Respondent has not been the subject of any other disciplinary action by the Board.

    CONCLUSIONS OF LAW

    
    

35. 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.

36. Pursuant to Section 463.016(2), Florida Statutes, the Board of Optometry (Board) is empowered to revoke, suspend or otherwise discipline the license of an optometrist for the offenses enumerated in Section 463.016(1), Florida Statutes, which provides in pertinent part:

    1. The following acts constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       1. Fraud or deceit, negligence or incompetence, or misconduct in the practice of optometry.

          
          

       2. A violation or repeated violations of provisions of this chapter, or of chapter 455, and any rules promulgated thereto.

       
       

       * * *

       
       

       (k) Failing to keep written optometric records about examinations, treatments, and prescription for patients.

       
       

37. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission,

    281 So. 2d 487 (Fla. 1973). Thus, in disciplinary licensing proceedings such as this, Petitioner must prove the alleged

    violations of Section 463.016(1)(h), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).

38. The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So. 2d 797, at 800 (Fla.

    4th DCA 1983), as follows:

    
    

    . . . clear and convincing evidence requires that the evidence must be found to be credible; that the facts to which the witnesses testified must be distinctly remembered; the testimony must be lacking in confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

39. Count I of the Complaint alleges that Respondent violated Sections 463.016(1)(h), 463.0135, apparently through violation of 59V-3.007, Florida Administrative Code.

40. Section 463.0135(1), Florida Statutes, provides that a licensed practitioner shall provide that degree of care which conforms to that level of care provided by medical practitioners in the same or similar communities. Rule 59V-3.007, Florida Administrative Code, (formerly Rule 21Q-3.007, Florida Administrative Code), implements Section 463.0135, Florida Statutes, and sets forth the minimum procedures for vision

    analysis, "defined as comprehensive" assessment of a patient's visual status." The rule provides in material part:

    1. Vision analysis is defined as a comprehensive assessment of the patients visual status and shall include those procedures specified in paragraph (2) below.

       
       

    2. An examination for visual analysis shall include the following minimum procedures, which shall be recorded on the patient’s case record:

       
       

       1. Patient’s history (personal and family medical history, personal and family ocular history, and chief complaint);

       2. Visual acuity (unaided with present correction);

       3. External examination;

       4. Pupillary examination;

       5. Visual field testing (confrontation or other);

       6. Internal examination (direct or indirect opthalmoscopy recording cup disc ratio, blood vessel status and any abnormalities);

       7. Biomcroscopy (binocular or monocular)

       8. Tonometry;

       9. Refraction (with recorded visual acuity;

       10. Extra ocular muscle balance assessment;

       11. Other tests and procedures that may be indicated by case history or objective sign and symptoms discovered during the eye examination.

           
           

           * * *

           
           

           1. The minimum procedures set forth in paragraph (2) above shall not be required in the following circumstances:

              1. When a licensed practitioner or certified optometrist is providing specific optometric services on a secondary or tertiary basis in patient co-management with one or more health care practitioners skilled in the diagnosis and treatment of diseases of the human eye and licensed pursuant to Chapter 458, 459, or 463, Florida Statutes.

           
           

41. Some of the tests specified in 59V-3.007(1), Florida Administrative Code, do not necessarily apply in a post- operative co-management situation of care. Rather, the standard has been left to the discretion and professional judgment of the practitioners involved. The clear import of the exception found in sub-section (6) of the above-quoted rule is that when a

    co-management situation exists between an optometrist with another qualified health care provider, a comprehensive vision analysis is not required and the minimum procedures prescribed in Rule 59V-3.007(2), Florida Administrative Code, are not required.

42. In this case, Dr. Grabow is a practitioner skilled in the diagnosis and treatment of human eye diseases and licensed pursuant to Chapter 458, Florida Statutes. Because Respondent, a Board-certified optometrist, co-managed the care of Patient

    D.R. with Dr. Grabow, Respondent is excluded from the requirement of conducting the minimum procedures for vision analysis set forth in the above rule. Clearly, the exception

    provided in Rule 59V-3.007(6), Florida Administrative Code, applies in this case.

43. As to Count I of the Amended Administrative Complaint, Petitioner has failed to meet its burden. Petitioner did not establish by clear and convincing evidence a violation of Section 463.0135, Florida Statutes and Rule 59V-3.007, Florida Administrative Code.

44. Count II of the Complaint alleges that Respondent violated Section 463.016(1)(h) Florida Statutes, by failing to provide the degree of care consistent with patient conditions as required by Rule 59V-3.010, Florida Administrative Code.

45. Rule 59V-3.010, Florida Administrative Code, (formerly numbered Rule 21Q-3.010, Florida Administrative Code), provides in relevant part:

    59V-3.010 Standard of Practice for Licensed Optometrists.

    (1) Paragraph 463.016(1)(g), F.S.,

    authorizes the Board to take disciplinary action against an optometrist who is found guilty of “fraud, deceit, negligence or incompetence, or misconduct in the practice of optometry.” Conduct which deceives, or defrauds the public and which is thereby prohibited by Paragraph 463.016(1)(g), F.S., shall include, but not be limited to, accepting and performing an optometric practice or procedure which the optometrist knows or has reason to know that he is not competent to undertake.

46. As to Count II of the Complaint, Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of the charges alleged therein. To the contrary, the clear and convincing evidence established that Respondent provided the degree of care consistent with Patient D.R.’s condition.

47. Count III of the Complaint alleges that Respondent violated Section 463.016(1)(h), Florida Statutes, by failing to provide that level of care provided by practitioners in the same or similar communities as required by Section 463.0135, Florida Statutes, which provides that:

    1. A licensed practitioner shall provide that degree of care which conforms to that level of care provided by medical practitioners in the same or similar communities. A licensed practitioner shall advise or assist his patient in obtaining further care when the service of another health care practitioner is required.

       
       

48. The Petitioner has failed to prove by clear and convincing evidence that the Respondent is guilty as charged in Count III of the Complaint. In fact, the clear and convincing evidence established that Respondent provided that degree of care which conformed to that level of care provided by medical practitioners in the same community, thereby adhering to the prevailing standard of care as required by Section 463.0135 (1), Florida Statutes.

49. Count IV of Petitioner's Complaint alleges that Respondent violated Section 463.016(1)(k), Florida Statutes, by failing to keep written optometric records about the examinations, treatments, and prescriptions for Patient D.R. Petitioner has failed to prove this allegation by clear and convincing evidence and therefore, has not met its burden of proof.

50. Count V of the Complaint alleges that Respondent violated Section 455.657, Florida Statutes, by entering into a referral agreement with an ophthalmologist. That section provides:

    455.657 Kickbacks prohibited.-

    1. As used in this section, the term "kickback" means a remuneration or payment back pursuant to an investment interest, compensation arrangement, or otherwise, by a provider of health care services or items, of a portion of the charges for services rendered to a referring health care provider as an incentive or inducement to refer patients for future services or items, when the payment is not tax deductible as an ordinary and necessary expense.

    2. It is unlawful for any health care provider or any provider of health care services to offer, pay, solicit, or receive a kickback, directly or indirectly, overtly or covertly, in cash or in kind, for referring or soliciting patients.

    
    

51. In regard to the allegation in Count V of the Complaint, the clear and convincing evidence established that the Agreement between Respondent and Dr. Grabow, was a

    legitimate co-management arrangement whereby both doctors provided services to patients, including Patient D.R. Thus, Petitioner has failed to meet it burden with respect to Count V.

52. Having failed to establish any of the underlying allegations contained in the Complaint, Petitioner has not met its burden of demonstrating by clear and convincing evidence that Respondent violated Sections 463.016(1)(g) and (h), Florida Statutes. Accordingly, there is no statutory basis for taking disciplinary action against Respondent's license to practice optometry.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Amended Administrative Complaint against the Respondent, Rick J. Billings, O.D.

DONE AND ENTERED this 24th day of March, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 Filed with the Clerk of the

Division of Administrative Hearings this 24th day of March, 1998.

COPIES FURNISHED:

William C. Childers, Esquire Thomas Wright, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

A. S. Weekley, Jr., M.D., Esquire Holland & Knight LLP

510 Vonderburg Drive Suite 3005

Brandon, Florida 33511

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

Pete Peterson, Esquire Department of Health 1317 Winewood Boulevard Building 6, Room 102-E

Tallahassee, Florida 32399-0700

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.

Docket for Case No: 96-006067

Orders for Case No: 96-006067