Mathesie, D.C. Petitioner opposed the motion. Oral argument was held by telephone to consider the motion and an order was entered on October 28, 2005 in response to the motion.
On November 8, 2005, Respondents moved to continue the final hearing scheduled for November 10, 2005. Petitioner filed in opposition to the motion. The motion was denied.
On November 9, 2005, a further motion for continuance was filed by Respondents, requesting imposition of sanctions against Petitioner. That motion was considered at the final hearing and denied as explained in the hearing transcript.
Petitioner moved for official recognition of Section 456.072(1)(c), Florida Statutes (2003), and Section 456.073(5), Florida Statutes (2004), together with Florida Administrative Code Rule 64B2-16.003, pertaining to both cases. In addition Petitioner moved for official recognition of Sections 456.072(1)(m) and 460.413(1)(k), Florida Statutes (2003), related to Respondent Doll. These motions were not opposed. At hearing the motions were granted.
In relation to the consolidated hearing, the hearing involved testimony to support both cases and testimony related only to the individual cases. There is one transcript for both DOAH Case Nos. 05-2556PL and 05-2557PL. The transcript is transmitted in DOAH Case No. 05-2556PL.
The Petitioner called as its witness in the Doll case the Respondent Doll.
The Petitioner called as its witness in the Schoenborn case, the Respondent Schoenborn.
Petitioner called as a witness in both cases, Michael William Mathesie, D.C.
Petitioner's Exhibits numbered one and two were admitted in the Doll case.
Petitioner's Exhibits numbered one through four were admitted in the Schoenborn case.
Respondents' Exhibits numbered one through three were admitted in behalf of Respondent Doll and Respondent Schoenborn and related to both cases. Respondents' Exhibits numbered one through three are transmitted with DOAH Case No. 05-2556PL.
On December 23, 2005, the hearing transcript was filed.
Respondents moved to extend the time for filing proposed recommended orders in their respective cases. Petitioner filed in opposition to the motions. On January 6, 2006, oral argument was conducted by telephone to consider the motions. The parties
were granted an extension requiring that proposed recommended orders be filed no later than February 10, 2006. Proposed Recommended Orders were filed which have been considered in preparing the Recommended Order.
Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes.
Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Chapters 456 and 460, Florida Statutes.
Respondent is and has been at all times material hereto a licensed chiropractic physician in the State of Florida, having been issued license number CH 5396 on October 14, 1986.
Respondent's last known address is 9471 Baymeadows Road #108, Jacksonville, Florida 32256-0154.
JHCS operated as a medical clinic offering and supplying chiropractic and medical services to patients.
Respondent caused or allowed claims to be filed with Medicare and other health care benefit programs claiming reimbursement for the professional component of Magnetic Resonance Imaging tests (MRI).
The report generated as a result of the outside radiologist was placed onto JHCS' letterhead to give the appearance that the radiologist was an employee of JHCS and Respondent.
Respondent pled guilty to crimes that occurred in the course of Respondent's practice of chiropractic medicine (during his hours of operation).
For Diagnostic Ultrasound (DU) and Nerve Conduction Velocity (NCV) billing, Respondent submitted claims for the technical portion of DU or NCV test, which is the performance of the test, even though Respondent did not contribute his professional expertise to the performance of the test.
Respondent would submit claims to various health care benefit programs for the technical component of the test. Additional Facts
In United States of America v. Mark Schoenborn, United States District Court, Middle District of Florida, Jacksonville Division, Case No. 3:03-cr-315-J-25MMH, Respondent pled guilty to Count 1 of the information, 18 U.S.C. §§ 1347 and 371. The nature of the offense was conspiracy to defraud a health care benefit program. The offense ended September 2002.
The judgment in the criminal case held to the following effect:
The defendant is sentenced as provided in pages 2 through 5 of this judgment. This sentence is imposed pursuant to the Sentencing Reform Act of 1984, as modified by United States v. Booker. At page 4 of 5 the obligation for restitution is set forth as part of the sentence.
A sentence was imposed in the case on February 11, 2005, in which Respondent was placed on probation, for a term of three years. A special condition of supervision was that Respondent participate in the Home Detention Program for a period of six, assumed to be months, and that he perform 100 hours of community service. Respondent was required to pay a $10,000.00 fine and to make $400,000.00 in restitution. The payees in the restitution were: Aetna, Inc., $52,944.00; United Health Group,
$38,076.00; DHHS/CMMS, Division of Accounting, $245,609.00; and Blue Cross/Blue Shield of Florida, $63,371.00. Respondent would receive credit for all payments previously made toward any criminal monetary penalties imposed on a joint and several basis with Respondent Charles Doll, United States District Court, Case No. 3:03-cr-314-J-25MMH.
Respondent has referred patients for MRIs to provide information about soft tissue in relation to the formation of a disc. In particular, the information about the disc would pertain to a herniated or bulging disc. The information imparted in the MRI results assists in diagnosing a patient, according to Respondent. It is not involved with the treatment of the
patient. The initial diagnosis is made without the benefit of an MRI.
Respondent refers patients for NCV tests, the results of which may show nerve pressure, according to Respondent. The diagnosis will have been formulated before the referral is made usually. This special test assists in further understanding "things going on with a patient." The results of the test could further assist Respondent in rendering care.
Respondent has used DU in his practice. The information provided by those tests is a showing of inflammation in an area. The results help Respondent decide what to do with a patient, as far as additional treatment, and whether there may be the need to make a referral outside his practice or some other choice.
In making the referrals that have been described, Respondent believes that he is making that choice as a chiropractic physician.
Expert Opinion
Michael William Mathesie, D.C., is licensed to practice chiropractic medicine in Florida. He is an expert in the field of chiropractic medicine. Petitioner hired Dr. Mathesie as its consultant in the case, to express an opinion concerning Respondent's practice in view of the allegations in the Administrative Complaint.
In Dr. Mathesie's opinion the practice of chiropractic medicine consists of diagnosis and treatment of nerves, muscles, joints, and conditions of the spine and extremities. Diagnosis of a patient would consist of inspection and palpation, range of motion, orthopedic maneuvers, neurological evaluations, X-rays, CT scans, MRIs, neurological diagnostic testing, and other specialized tests, as well as blood laboratory evaluations. Treatment would consist of adjustments to the spine to correct subluxations, or other lesions of the spine causing nerve irritation or impulses or nerve transmission problems. Physical therapy modalities, nutrition, counseling and other non- pharmaceutical and non-neurological procedures are also involved.
Dr. Mathesie explained the use of diagnostic testing in the practice of chiropractic medicine. If a patient has a long- standing condition of the spine or extremities, such as nerve pain shooting down the arm or numbness or tingling, a NCV test might be run, but the test may not be used on a regular basis for reasons other than the evaluation of the patient's condition. To do so would skew the diagnostic abilities of the chiropractic physician, according to Dr. Mathesie.
Chiropractors are taught diagnostic testing and evaluation in chiropractic school.
In his practice Dr. Mathesie bills for his services rendered to the patient in accordance with Section 460.41, Florida Statutes.
Jan Allen Fralicker, D.C., was called as an expert to testify in behalf of Respondent Schoenborn. Dr. Fralicker is licensed in Florida to practice chiropractic medicine.
In addressing the allegations in the Administrative Complaint directed to Respondent Schoenborn of a violation of Section 456.072(1)(c), Florida Statutes, and equally applicable to Respondent Doll, Dr. Fralicker does not believe that the allegations pertain to the practice of chiropractic medicine. Dr. Fralicker explains that the practice of chiropractic medicine in Florida is the diagnosis and treatment of human elements without the use of drugs or surgery, to include diagnostic testing. The crime to which Respondent Schoenborn pled and
Dr. Doll pled, involves fraud in the criminal aspect, according to Dr. Fralicker, for receiving money for services not performed. The criminal activity did not actually involve Respondent's functioning as a chiropractor related to patients being treated. In Dr. Fralicker's opinion ordering the tests involved in the case, as Dr. Fralicker understands it, was the practice of chiropractic medicine, but defrauding a health care benefit program is not related to the practice of chiropractic medicine. Nothing about Dr. Fralicker's understanding of the criminal law
matter involved a standard of care issue. Dr. Fralicker separates the criminal activity from the practice of chiropractic medicine. In summary, while ordering diagnostic tests is part of chiropractic medicine, pleading guilty to defrauding a health care program is not, in the view of Dr. Fralicker. What Respondents were engaged in was practicing chiropractic and then separately involving themselves in criminal activity to defraud,
i.e. getting paid for something not being done.
Dr. Fralicker is familiar, as a chiropractic physician, with submitting billing to be reimbursed for services as a chiropractic physician. He submits requests for reimbursement. The submission of requests for reimbursement is seen by
Dr. Fralicker as part of the practice of chiropractic medicine.
Dr. Fralicker believes that chiropractors providing a service must meet the standards of what the general population of chiropractors would do in the area where they practice, involving appropriate diagnosis and referral to another professional, if necessary, for additional treatment. He does not believe that the Respondents violated the professional standards.
Neither opinion of the experts is persuasive, beyond its value in establishing the nature of the practice of chiropractic medicine in delivering care and billing for the services provided.
Dr. Schoenborn Previous Disciplinary History
In the case Agency for Health Care Administration,
Petitioner v. Mark E. Schoenborn, D.C., Respondent, before the State of Florida, Agency for Health Care Administration, Board of Chiropractic, Case No. 9207885, and related cases, Respondent was charged in Count 1 with a violation of Section 460.413(1)(m), Florida Statutes, formerly Section 460.413(1)(n), Florida Statutes, for failing to maintain written chiropractic patient records that would justify the course of treatment of the patient. In Count II to that Administrative Complaint Respondent was charged with violating Section 460.413(1)(i), Florida Statutes, by failing to perform a statutory or legal obligation of the licensed chiropractic physician in performing, ordering, administering or procuring unnecessary diagnostic testing in violation of Section 766.111, Florida Statutes. In Count III to the Administrative Complaint Respondent was charged with a violation of Section 460.413(1)(r), Florida Statutes, formerly Section 460.413(1)(s), Florida Statutes, by failing to practice chiropractic at the level of skill, care, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. In Count IV of the Administrative Complaint Respondent was charged with violating Sections 460.413(1)(b), Florida Statutes, and 460.413(1)(v), Florida Statutes, formerly 460.413(1)(w),
Florida Statutes, and Florida Administrative Code Rule 61F2- 5.001(2), formerly Florida Administrative Code Rule 21D-5.0012, by engaging in false deceptive or misleading advertising. The parties entered into a settlement stipulation which was approved by final order, in relation to Case Nos. 9207885 and 9216199, 94- 05484 and 94-11080. Ultimately the stipulation that was approved in a final order entered February 13, 1996, was to the failure to maintain written chiropractic patient records that would justify a course of treatment to the patient, a violation of Section 460.413(1)(m), Florida Statutes, that had been referred to as Section 460.413(1)(n), Florida Statutes. As a consequence Respondent paid $3,000.00 in administrative costs, had to take a course on records keeping, and was required to have his patient records monitored.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding in accordance with Sections 120.569, 120.57(1), and 456.073, Florida Statutes (2005).
Respondent is licensed to practice chiropractic medicine in Florida.
Petitioner bears the burden of proof in this disciplinary case. Proof sufficient to sustain the allegations in the Administrative Complaint must be by clear and convincing
evidence. See Department of Banking and Finance Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is explained in the case In re: Davey, 645 So. 2d 398 (Fla. 1994), quoting with approval from Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).
The Administrative Complaint must provide reasonable notice to Respondent of the conduct that would warrant the imposition of discipline. See Cottrill v. Department of
Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996).
Respondent is accused of violating Section 456.072(1)(c), Florida Statutes, making him subject to grounds for discipline under Subsection 456.072(2), Florida Statutes (2003), if the violation is proven. Section 456.072(1)(c), Florida Statutes (2003), allows the discipline for:
Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice a licensee's profession.
The alleged violation of Section 456.072(1)(c), Florida Statutes (2003), is premised upon the alleged entry of a plea of guilty to one count of conspiracy to execute a scheme to defraud a health care benefit program and to obtain by means of false and
fraudulent pretenses and representations the money of a health care benefit program in violation of 18 U.S.C. §§ 1347 and 2.
It was proven that Respondent pled guilty to count 1 of the Information in Case No. 303-cr-315-j-25-MMH, in the United States District Court, Middle District of Florida, Jacksonville Division. The plea was made in relation to the Title and Section, 18 U.S.C. §§ 1347 and 371, conspiracy to defraud a health care benefit program, in an offense that ended in September 2002.
The law referred to in the plea in federal court, 18
§§ 1347 and 371 states:
§§ 1347 Health care fraud
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice--
to defraud any health care benefit program; or
to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program, in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 20 years, or both. If the violation results in serious bodily injury (as defined In section 1365 of this title), such person shall be fined under this title or imprisoned nor more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.
§ 371. Conspiracy to commit offense or to defraud United States
If two or more persons conspire either to commit any offense against the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
The differences between the allegations in the Administrative Complaint in its citation to 18 U.S.C., compared to the actual citation in the criminal court case in federal court is not significant, when considering the need for appropriate notice of the charges in the present case. See
Werner v. State Dept. of Ins. and Treasurer, 689 So. 2d 1211 (Fla. 1st DCA 1991).
It has been proven that Respondent entered a plea to conspiracy to defraud a health care benefit program under 18
U.S.C. §§ 1347 and 371, an offense related to the practice of chiropractic medicine. In arriving at this conclusion, the penal nature of this case is recognized and Section 457.072(1)(c), Florida Statutes (2003), has been strictly construed in determining whether a violation occurred. See State v. Pattishall, 99 Fla. 296 and 126 So. 147 (Fla. 1930), and Lester
v. Department of Professional and Occupational Regulation, State Board of Medical Examiners, 348 So. 2d 923 (Fla. 1st DCA 1977).
To decide whether the plea of guilty is related to the practice of or the ability to practice chiropractic medicine, that inquiry has not been limited to the technical ability of Respondent in his practice in an office setting. If the crime relates to or presents a danger to public welfare, as it did, that in itself would be grounds to impose discipline. See Rush v. Department of Professional Regulation, Board of Podiatry, 448 So. 2d 26 (Fla. 1st DCA 1984); Ashe v. Department of Business and
Professional Regulation, 467 So. 2d 814 (Fla. 5th DCA 19854) and Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3rd DCA 1987), rev. denied, 511 So. 2d 998, cert.
denied, 484 U.S. 986 (1987).
Among the terms of the sentence imposed in federal court was the need to make restitution to a number of companies who had lost money. The sentence imposed is read to mean that restitution must be made to insurance companies in that list, as well as DHHS/CMMS, Division of Accounting. DHHS is read to mean the U.S. Department of Health and Human Services. This need for restitution made Respondent accountable for his prior actions, which had been contrary to public welfare, in particular as they related to DHHS.
The crimes to which Respondent pled guilty in federal court demonstrate a lack of honesty, integrity, and judgment in conspiring to defraud a health care benefit program by a person licensed as a health care provider. That conduct breached the trust and confidence placed in Respondent by his licensure as a chiropractic physician.
