STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC MEDICINE,
Petitioner,
vs.
CRAIG SAMUEL ADERHOLDT, D.C.,
Respondent.
/
Case Nos. 18-4484PL
18-4485PL
18-4486PL
18-4487PL
RECOMMENDED ORDER
Administrative Law Judge Elizabeth W. McArthur of the Division of Administrative Hearings (DOAH) conducted a consolidated disputed-fact hearing on November 5 and 6, 2018, by video teleconference at sites in Tampa and Tallahassee, Florida.
APPEARANCES
For Petitioner: Derrick Jovan McBurrows, Esquire
Eric L. Fryson, Esquire Department of Health Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
For Respondent: Kenneth A. Scaz, Esquire
Golden Scaz Gagain, PLLC
201 North Armenia Avenue Tampa, Florida 33609
STATEMENT OF THE ISSUES
The issues in these consolidated cases are whether Respondent committed the violations charged in four
Administrative Complaints and, if so, what is the appropriate
discipline.
PRELIMINARY STATEMENT
On June 20, 2018, the Department of Health (Department or Petitioner) filed four Administrative Complaints before the Board of Chiropractic Medicine (Board), charging Craig Samuel Aderholdt, D.C. (Dr. Aderholdt or Respondent), with violations in connection with providing chiropractic care to four patients.
The first Administrative Complaint (DOAH Case No. 18- 4484PL) alleged specific facts regarding Patient A.M., which were the predicates for charging Respondent with violating the following: section 460.413(1)(x), Florida Statutes (2013)1/ (submitting a claim to a third-party payor for a service or treatment not actually provided); section 460.413(1)(n) (exercising influence over a patient to exploit the patient for financial gain); section 460.413(1)(aa) (failing to provide, upon request of the insured, a copy of a claim submitted to a third-party payor for service or treatment of the insured); and section 460.413(1)(k) (making misleading, deceptive, untrue, or fraudulent representations, or employing a trick or scheme, in the practice of chiropractic medicine).
The next Administrative Complaint (DOAH Case No. 18-4485PL) alleged specific facts regarding Patient B.O., which were the predicates for charging Respondent with violating: section
460.413(1)(x); section 460.413(1)(i) (failing to perform statutory or legal obligation placed upon a licensed chiropractor), through a violation of Florida Administrative Code Rule 64B2-17.0055(1) (failing to release copies of a patient’s medical records upon request); section 460.413(1)(aa); and section 460.413(1)(k).
The third Administrative Complaint (DOAH Case No. 18- 4486PL) alleged specific facts regarding Patient R.O., which were the predicates for charging Respondent with violating section 460.413(1)(i) through a violation of rule 64B2- 17.0055(1), section 460.413(1)(aa), and section 460.413(1)(k). The complaint also charged Respondent with an alleged violation of section 460.413(1)(r) (failing to practice chiropractic medicine at a level of care, skill, and treatment recognized as acceptable by a reasonably prudent chiropractic physician).
However, Petitioner withdrew this charge, asserting it is no longer pursuing discipline for this alleged violation.
The fourth Administrative Complaint (DOAH Case No. 18- 4487PL) alleged specific facts regarding Patient P.D., which were the predicates for charging Respondent with violating section 460.413(1)(k) and section 460.413(1)(r).
Respondent timely requested disputed-fact administrative hearings to dispute the allegations and charges in all four
Administrative Complaints. The cases were transmitted to DOAH on August 27, 2018, to conduct the requested proceedings.
In responding to Initial Orders requesting information for scheduling the hearings, the parties characterized the four cases as related, requested consolidation, and provided available hearing dates in October 2018. The four cases were consolidated and set for hearing on October 24 and 25, 2018.
Various discovery issues were presented by motions and resolved by Orders shown on the docket.
On October 15, 2018, Petitioner filed an unopposed motion for a short continuance, because final preparation for the hearing had been delayed by Hurricane Michael. The hurricane travelled north in the Gulf of Mexico close to the Tampa Bay area on October 9, 2018, and made landfall at Mexico Beach in the Florida panhandle on October 10, 2018. State offices were closed from October 8 through 11, 2018, from the Tampa Bay area northward and throughout the panhandle, including Petitioner’s headquarters and DOAH in Tallahassee. The motion identified available hearing dates in early November. The motion was granted and the hearing was reset for November 5 and 6, 2018.
Prior to the hearing, the parties filed a Joint Pre-hearing Stipulation. The stipulated facts are incorporated into the Findings of Fact below, to the extent relevant.
On October 31, 2018, Petitioner filed a Motion in Limine to exclude a proposed witness for Respondent who had not been timely disclosed as required by the Order of Pre-hearing Instructions. On November 2, 2018, Respondent filed a Motion in Limine to preclude Petitioner from presenting testimony or argument directed to the manner in which Respondent addressed Petitioner’s second set of interrogatories, when no motion to compel had been filed. Both motions were taken up at the outset of the final hearing and both were granted.
At the final hearing, the parties offered a series of Joint Exhibits,2/ which included deposition transcripts with attached deposition exhibits. Besides the depositions, Joint Exhibits 1 through 3, 13, 14,3/ and 16a through 16c were admitted into evidence. In addition, the parties jointly offered deposition testimony of the following witnesses: Patient A.M. (Joint Exhibit 4--transcript with deposition exhibits A-1, A-2, B, and C); J.M., Patient A.M.’s spouse (Joint Exhibit 5--transcript with deposition exhibit A); Patient R.O. (Joint Exhibit 6-- transcript with deposition exhibits A and B); Patient B.O. (Joint Exhibit 7--transcript with deposition exhibits A and B); Patient P.D. (Joint Exhibit 8--transcript with deposition exhibits A through C); D.D., Patient P.D.’s spouse (Joint Exhibit 9--transcript with deposition exhibits A and B); Respondent (Joint Exhibit 11--transcript with deposition
exhibits 1 through 14); Michael Shreeve, D.C. (Joint Exhibit 12); and Salvatore LaRusso, D.C. (Joint Exhibit 15).
Joint Exhibits 4 through 7 were admitted in lieu of live testimony, based on a stipulation of unavailability due to age/infirmity, which was accepted on the record. See Fla.
R. Civ. P. 1.330(a)(3)(C). Joint Exhibits 8 and 9 were admitted in lieu of live testimony, based on unavailability due to witness location in Michigan, more than 100 miles away. Fla.
R. Civ. P. 1.330(a)(3)(B). Joint Exhibit 11 was admitted as a party deposition. Fla. R. Civ. P. 1.330(a)(2). Joint Exhibits
12 and 15 were admitted as depositions of expert witnesses.
Fla. R. Civ. P. 1.330(a)(3)(F).
In addition to the testimony and documentary evidence presented through the Joint Exhibits, Petitioner presented the live testimony of Meagan Lawrenz4/ and Dr. Michael Shreeve, a chiropractor and Petitioner’s expert. Petitioner’s Exhibits 1 through 6 were admitted into evidence.
Respondent presented the live testimony of his expert,
Dr. Salvatore LaRusso, a chiropractor. Respondent’s Exhibits 1, 2a through 2d, and 3 through 7 were admitted.5/
Before taking live testimony, the parties were reminded of the restrictions regarding hearsay in section 120.57(1)(c), Florida Statutes, and Florida Administrative Code Rule 28- 106.213(3). Pursuant to these provisions, hearsay cannot be
used as the sole basis for a finding of fact, whether or not there is an objection to the hearsay nature of evidence, unless the hearsay evidence would be admissible in a civil action in Florida, i.e., it is shown to qualify for a hearsay exception under the Florida Evidence Code. Absent an exception, although hearsay evidence may be admitted in an administrative hearing, its use is limited to supplementing or explaining competent (non-hearsay) evidence. The undersigned noted that a substantial portion of the Joint Exhibits, including deposition testimony and deposition exhibits, appeared to be or contain hearsay, with multiple levels of hearsay within hearsay in some instances (such as investigative reports prepared by Petitioner’s investigators who did not testify, purporting to describe what the investigators were told by others who did not testify). The parties were informed that if they wanted to rely on a hearsay exception, they should raise that issue during the
hearing so that argument is presented and a determination made.6/ At the conclusion of the hearing, the parties were informed
that, by rule, the deadline for filing proposed recommended orders (PROs) would be ten days after the transcript is filed at DOAH. The parties requested an extension of that deadline, which was permitted, and the extended deadline for PROs was set at 30 days after the filing of the transcript.7/
The two-volume Transcript of the final hearing was filed December 7, 2018. The parties timely filed PROs on January 7, 2019 (the 30th day falling on a Sunday); Respondent also filed a closing statement, as had been authorized at the end of the hearing. The parties’ filings have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint.
At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida.
Vax-D Therapy
Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The
complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff.
Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy.
The Vax-D model is an expensive piece of equipment.
The price range for the initial purchase is between $100,000 and
$150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes.
However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.”
Vax-D spinal decompression is not covered by Medicare.
In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare.
In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device.
Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression.
Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy.
Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy,
Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed.
Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient
B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it.
The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and
$220.00 (for 25 sessions).
For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy,
30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included.
Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases.
No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions.
Patient A.M.
From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse.
As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and
A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks.
On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M.
identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions.
Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013.
In accordance with the initial treatment plan, Patient
A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card.
Between July 30, 2013, and February 3, 2014, Patient
A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner.
A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours.
After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid
$7,726.00 for approximately 64 Vax-D therapy sessions. Rounding
down to an even 60 sessions, she paid an average of $128.77 per session.
A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject.
Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and
J.M. asked him, “Does Medicare cover this,” and he said, “Yes.”
J.M. said that Dr. Aderholdt did talk to them about payment,
saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since
J.M. did not remember signing the Vax-D Agreement.
When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient
R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle
of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients.
A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00.
The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package.
Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient
R.O. (who claimed Respondent said there would not be Medicare
coverage), in the following exchange:
Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements?
A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added).
Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/
The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted.
The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted.
The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/
The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent.
Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same
time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition.
If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare.
A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims.
Dr. Aderholdt said that he was not aware that Patient
A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to
requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient
A.M. has received the claim forms she requested, or, if not, provided them to her.
Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region.
Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium.
Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At
hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/
The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray.
In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be
considered for payment, because they are redundant with other CPT treatment codes that include examination.
Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as
Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate.
The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies.
Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance
claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills.
Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/
In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint,
and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated.
Patient B.O.
Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain.
B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs.
At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon).
As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff.
Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit.
B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/
For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of
$15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00.
The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This
allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that
B.O. was intentionally charged more than she should have been charged, based on the information available at the time.
On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve,
Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130).
The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary.
Petitioner contends in its PRO that Respondent billed
B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/
In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s
accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment.
A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented).
Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers.
Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.”
The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged.
It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers
as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy.
Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid.
Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O.
As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes.
However, the patient ledger for B.O. reflects a total amount of
$5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half.
Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs.
Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed
$230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due.
Patient R.O.
As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain.
R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and
examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment.
R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year.
R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan.
R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above.
R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable.
R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage.
R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment.
After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of
$5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that
$10.84 was paid to a different provider (“Ga Emergency Phys”)
for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00).
The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was
$8,825.00, an average of $220.63 per session.
R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free.
As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him.
The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request.
The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4.
Patient P.D.
In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain.
After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy.
Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her.
P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in
11 months, at $500.00 per month, so the loan was interest-free.
At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross).
P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross.
Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain.
P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not.
P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90.
P.D. acknowledged that she has been fully reimbursed and is owed nothing further.
The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013.
Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake.
Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone.
Expert Opinions Considering All Four Cases
Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole.
Dr. Shreeve’s Oinions
Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109).
In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints.
Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated
use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms.
In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said:
This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake.
If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it.
Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111).
Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case:
If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative.
A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148).
Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But
Dr. Shreeve only looked at the patient ledgers for modifiers.
As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven.
Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on
the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded:
That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137).
When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient.
In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record.
Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2-
14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly.
Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise
to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly.
Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations:
I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153).
Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to
Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was
not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints.
As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now).
Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers.
The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive.
Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard.
The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule
violations charged in any of the four Administrative Complaints at issue here.
The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services.
In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days.
A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that
he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation.
The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone.
As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153).
To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include
patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes.
The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee.
The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here.
Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems”
in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs.
Dr. LaRusso’s Opinions
Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters.
Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical
responsibilities. Instead, they leave everything besides patient care to their office manager and staff.
In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning.
He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors.
At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession.
Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license.
Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases.
There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in
that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018.
While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments.
Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP.
Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board
practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints.
Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 456.073(5), 120.569, and 120.57(1), Florida Statutes (2018).
Petitioner has authority to investigate and, following presentation to a PCP, to file Administrative Complaints as directed by the PCP, charging violations of the laws governing licensed chiropractic physicians. § 456.073, Fla. Stat.
A proceeding to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel.
Vining v. Fla. Real Estate Comm’n, 281 So. 2d 487, 491 (Fla.
1973). Petitioner therefore bears the burden of proving the charges against Respondent by clear and convincing evidence, as Petitioner acknowledged at the outset of the hearing. Fox v.
Dep’t of Health, 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing
Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996)).
As stated by the Supreme Court of Florida,
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts at issue. The evidence must be of such a 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.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This
burden of proof may be met where the evidence is in conflict; however, “it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 988
(Fla. 1st DCA 1991).
Disciplinary statutes and rules “must always be construed strictly in favor of the one against whom the penalty would be imposed and are never to be extended by construction.” Griffis v. Fish & Wildlife Conser. Comm’n, 57 So. 3d 929, 931
(Fla. 1st DCA 2011); Munch v. Dep’t of Prof’l Reg., Div. of Real
Estate, 592 So. 2d 1136 (Fla. 1st DCA 1992).
Respondent can only be disciplined on the basis of conduct specifically alleged and offenses specifically charged in the Administrative Complaints. Christian v. Dep’t of Health,
Bd. of Chiropractic Med., 161 So. 3d 416, 417 (Fla. 2d DCA 2014); Trevisani v. Dep’t of Health, 908 So. 2d 1108, 1109 (Fla.
1st DCA 2005)(physician may not be disciplined for an offense not charged in the complaint); Ghani v. Dep’t of Health, 714 So. 2d 1113, 1114-15 (Fla. 1st DCA 1998)(reversing the finding that Ghani committed a violation by failing to order ambulance transport where the administrative complaint did not allege a failure to order ambulance transport). These requirements take on even greater import in cases such as these four, in which a prerequisite to filing an administrative complaint is a probable cause determination by a duly-constituted probable cause panel and direction to the Department as to the specific violations to be charged.16/ Accordingly, only those violations actually charged in the Administrative Complaints are considered in this Recommended Order.
Case No. 18-4484PL (Patient A.M.)
There are four counts in the Administrative Complaint involving Patient A.M. Count I charges Respondent with
violating section 460.413(1)(x), which provides the following grounds for discipline:
Submitting to any third-party payor a claim for a service or treatment which was not actually provided to a patient.
The factual predicate for this charge is the allegation in the Administrative Complaint that on August 6, 2013, and December 11, 2013, Respondent utilized billing code 98941, indicating that three or four regions of adjustment were conducted, but that Respondent’s SOAP notes identify only spinal manipulation of L3, L4, and L5, which are in the same region.
It would be inappropriate, in addressing Petitioner’s charge that a service or treatment was not provided on two specific dates, to limit consideration to just the SOAP notes. Instead, the determination must be based on the whole medical record, which includes Respondent’s notes of treatments provided on each date of service, and not just the SOAP notes. See
Christian v. Dep’t of Health, Bd. of Chiropractic Med., 161 So.
3d 416, 420 (Fla. 2d DCA 2014) (in determining whether medical record justified treatment, “We conclude that, in context, the plain meaning of the term ‘medical record’ refers to the record taken as a whole[.]”). Indeed, as found above, the Board has previously looked to both the SOAP notes and Respondent’s notes to determine if a service or treatment was provided.
As found above, Petitioner failed to prove this charge. A review of the whole medical record, not just the SOAP notes, shows that multiple adjustments to three regions, as “regions” were defined by Petitioner’s own expert, were performed on both dates identified in the Administrative Complaint.
Count II charged Respondent with violating section 460.413(1)(n), providing as follows:
Exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include, but not be limited to, the promotion or sale of services, goods or appliances, or drugs.
As found above, Petitioner failed to prove the factual predicate for this charge by clear and convincing evidence, which was that Respondent secured A.M.’s up-front payment for Vax-D therapy through a promise of a refund from Medicare. A.M. not only paid the agreed price for the Vax-D Agreement, but after completing the Vax-D Agreement, she continued to pay for 35 more sessions, because the therapy provided at least temporary relief from the pain that had been getting worse previously.
Count III charged Respondent with violating section 460.413(1)(aa), providing the following grounds for discipline:
Failure to provide, upon request of the insured, a copy of a claim submitted to any
third-party payor for service or treatment of the insured.
Petitioner clearly and convincingly proved that Respondent’s office failed to respond to one or more verbal requests by A.M. for copies of her Medicare claims. It is Respondent’s obligation to ensure that his office staff responds to requests from insured patients for copies of claims submitted to their insurers. This violation has been established.
Count IV charged Respondent with violating section 460.413(1)(k), providing the following grounds for discipline:
Making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic medicine or employing a trick or scheme in the practice of chiropractic medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the chiropractic community.
The factual predicates for this charge repeat the factual predicate for Count II. Petitioner essentially claims that
Dr. Aderholdt induced J.M. to sign the Vax-D Agreement, by which
A.M. committed to the Vax-D therapy package, by misrepresenting that Medicare would fully cover the treatment and that they would be fully reimbursed for the agreed price they paid pursuant to the Vax-D Agreement. As found above, the evidence was not clear and convincing on these points. A.M. and J.M. did not have clear, distinct recollections of what was said or when it was said. With J.M.’s lack of recollection that he even
signed the Vax-D Agreement, it cannot be found that whatever was said about Medicare was relied on by J.M. as the reason why he signed the Vax-D Agreement.
Beyond the allegations and charges in the Administrative Complaint, Petitioner seemed to frown upon Respondent’s financial arrangements with patients choosing to receive Vax-D therapy. The Administrative Complaint did not allege, and Petitioner did not prove, that the arrangements were improper or in violation of any of the statutes or rule charged. Dr. Shreeve raised questions with the arrangements in terms of statutory and rule requirements for trust accounting for advance payments. However, the Administrative Complaints are silent with regard to allegations or charged violations under the trust statute, section 460.413(1)(y), or the implementing rule, Board rule 64B2-14.001 (“Trust Accounting Procedures”). Therefore, any insinuation directed to the propriety of Respondent’s practices under these provisions is inappropriate and cannot be considered in this proceeding. As a matter of due process and statutory authority, the scope of this proceeding is limited to the specific facts alleged and specific statutory and rule violations charged in the four Administrative Complaints approved by the PCP. See Christian, 161 So. 3d at 417; see also Gonzalez v. Dep’t of Health, 120 So. 3d 234, 237-238 (Fla. 1st
DCA 2013); Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372
(Fla. 1st DCA 1996).
Similarly, the litany of other issues raised by Dr. Shreeve, nowhere found in the Administrative Complaint,
cannot be considered as grounds for discipline or as factors to be considered by Dr. Shreeve in forming his opinions as to the actual facts alleged and violations charged in the Administrative Complaint. His reach far beyond the Administrative Complaint confirms the thin substance underlying his opinions if confined, as they must be, to the Administrative Complaint.
Case No. 18-4485PL (Patient B.O.)
This Administrative Complaint also has four counts.
Count I charges Respondent with violating section 460.413(1)(x), quoted above, for submitting claims to a third-party payor for a service or treatment not actually provided to a patient.
The factual predicate for this charge is the allegation that Respondent billed B.O.’s insurer for treatment on days that B.O. did not receive any treatment. As found above, however, B.O.’s accusation that she did not go to Respondent’s office for treatment on four days was contradicted by her own bank records and other evidence proving that she went to Respondent’s office and paid the copay charges for those four days. B.O.’s accusation was false, although perhaps she was
just mistaken and did not review her own documentation or connect the dots. The clear and convincing evidence proves no violation as charged in this count.
Count II charged Respondent under section 460.413(1)(i), through a violation of Board rule 64B2- 17.0055(1). The statute identifies as grounds for discipline:
Failing to perform any statutory or legal obligation placed upon a licensed chiropractic physician.
Rule 64B2-17.0055(1) provides:
Any person licensed pursuant to Chapter 460, F.S., is required to release copies of patient medical records upon request of the patient or his legal representative.
As found above, Respondent is guilty of violating the legal obligation that is placed on him, as licensee, in rule 64B2- 17.0055(1). Although Respondent may not have been made aware of any verbal requests made by B.O. to his office staff, and he may not have seen the joint letter by B.O. and R.O. requesting their medical records, the obligation remains his responsibility.
Count III charged Respondent under section 460.413(1)(aa), quoted above, for failing to provide B.O. with copies of claims submitted to any third-party payor for B.O.’s treatments. However, there was no evidence that B.O. requested copies of claims submitted to a third-party payor. The only evidence of what B.O. requested is in the joint letter from B.O.
and R.O. The requests were for their medical records and updated patient ledgers showing deductions for payments received from Horizon. As found above, the patient ledgers are not insurance claims, nor is there any indication that B.O. believed they were insurance claims. There was no evidence that B.O. also asked for copies of claims submitted to her insurer. This charge was not proven by clear and convincing evidence.
Count IV charges Respondent under section 460.413(1)(k), quoted above, for making misleading, deceptive, untrue, or fraudulent representations, or employing a trick or scheme that fails to conform to generally prevailing standards in the chiropractic community.
The factual predicates for this charge are: Respondent told B.O. that he was out-of-network, when it was really in-network, and then billed her for $25.00 per visit when later it was determined that her responsibility would be $15.00 per visit, the in-network copay; and Respondent did not reimburse B.O. after receiving payment from Horizon. As found above, this charge was not proven. There was no evidence to prove that B.O. was intentionally charged at a higher copay rate than what Horizon later authorized. The opinions of both experts as to the “nightmare” of accurately determining these insurance details for a new patient convincingly refuted the
charge. In addition, Petitioner offered no clear and convincing evidence to prove that B.O. was entitled to any reimbursement.
An additional factual predicate for this charge was the allegation that Respondent billed for treatments on days that B.O. did not receive treatment. This allegation was shown to be false. Petitioner’s expert conceded that B.O.’s accusation was proven to be false.
Case No. 18-4486PL (Patient R.O.)
This Administrative Complaint also has four counts.
However, Petitioner represented in its PRO that it is no longer pursuing Count IV. (Pet. PRO at 4).
Count I charges Respondent with violating section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), by not providing R.O.’s medical records to him upon request. For the same reasons set forth as to Count II of the Administrative Complaint involving B.O., Respondent is guilty of this charge.
Count II charges Respondent under section 460.413(1)(aa) for failing to provide R.O. with copies of claims submitted to any third-party payor for his treatments. For the same reasons set forth as to Count III of the Administrative Complaint involving B.O., this charge was not proven.
Count III charges Respondent under section 460.413(1)(k), for making misleading, deceptive, untrue, or fraudulent representations or employing a trick or scheme. The
factual predicates alleged for this count, in stark contrast to those alleged for Patient A.M., were that Respondent told R.O. that his treatment was not covered by insurance, and that no claims would be filed with his insurance. Contrary to those alleged representations, Respondent allegedly did file claims and later received monetary compensation from Horizon, but did not reimburse R.O. The clear and convincing evidence does not establish that Respondent represented anything to R.O. regarding insurance coverage. Further, there was no evidence of claims filed by Respondent. Finally, Petitioner offered no clear and convincing evidence to prove that Respondent was entitled to a refund from the insurance proceeds, as opposed to the proceeds being applied to his balance owed for treatment. As found above, he had a dozen Vax-D therapy sessions beyond those covered by the Vax-D Agreement, for which he paid nothing.
Count IV, which is no longer being pursued by Petitioner, is the single charge in any of the four Administrative Complaints related to the care provided by Respondent. The charge was lodged under section 460.413(1)(r), which authorizes discipline for failing to practice chiropractic medicine at a level of care, skill, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances.
The factual predicate was the allegation that Respondent
adjusted a fused spinal segment on Patient R.O., which is not physically possible. At hearing, Petitioner’s expert retreated from the allegation and charge, after considering the explanation for what was done and Respondent’s expert’s opinion. No discipline was shown to be warranted under section 460.413(1)(r); Count IV has been abandoned.
Case No. 18-4487PL (Patient P.D.)
The Administrative Complaint involving P.D. has two counts. Count I charges Respondent under section 460.413(1)(k) (misleading, deceptive, untrue, or fraudulent representations or employing a trick or scheme). The factual predicates for this charge are: that Respondent represented to P.D. that his office would submit claims to P.D.’s insurer for reimbursement of “some of the costs” associated with P.D.’s treatments; that Respondent failed to provide P.D. with “any form of reimbursement” that he obtained from P.D.’s insurer; and that Respondent “utilized billing codes 99204 and 99212 on the same day” when the first code precludes the need for the second code.
As found above, there was no proof that Respondent made any representations to P.D. regarding insurance. In fact,
P.D. admitted just the opposite. Respondent followed his standard practice of having his office staff address “the money thing” with P.D.
As also found above, the allegation that Respondent failed to provide P.D. with any form of reimbursement was not proven; indeed, it was false when the Administrative Complaint was issued. The allegation was stale, drawn from facts existing in 2014 when P.D. complained and an investigation was conducted. Three years before the Administrative Complaint was approved by the PCP and issued, Respondent reimbursed P.D. for all of the Blue Cross payments received, and then some. Thus, Respondent cannot be found guilty of misrepresentation, deception, or trickery by failing to reimburse P.D., because he did.
Even if the factual predicate for this charge were modified to say that Respondent failed to reimburse P.D. promptly, the charge would still fail. Petitioner did not prove, clearly and convincingly, that Respondent is guilty of misrepresentation, deception, trickery, or anything of that ilk by not providing reimbursement more promptly to P.D. While Respondent can be faulted for having had sloppy office practices regarding insurance claims submissions and processing of payments subsequently received from third-party payors, the credible evidence failed to establish that Respondent was engaged in fraud or employed a trick or scheme whereby he intentionally set out to make such a mess of things. See, e.g., Hammesfahr v. Dep’t of Health, Bd. of Med., 869 So. 2d 1221,
1223 (Fla. 2d DCA 2004).
The final factual predicate for this charge was that Respondent “utilized billing codes” 99204 and 99212 for P.D.’s first day of treatment. As found above, Respondent admitted both codes appear on the internal patient ledger, as a result of a coding mistake. He acknowledged that CPT code 99204 was appropriate for the comprehensive examination given to a new patient, and that entry of the additional examination CPT code 99212 on the same day was incorrect.
Petitioner proved only that a CPT coding mistake was made on P.D.’s internal patient ledger, and no more than that. The coding mistake was not shown to be intentional, nor was it shown to have been used as a “billing” code as alleged. There is no evidence that the patient ledger was submitted or incorporated in a bill to P.D. or in a claim to her insurer.
Respondent is not guilty of the charge in Count I.
Count II charges Respondent under section 460.413(1)(r) for gross or repeated malpractice or the failure to practice chiropractic medicine at a level of care, skill, and treatment recognized as acceptable by a reasonably prudent chiropractic physician. The factual predicate for this charge is the same single coding error that is also a factual predicate for Count I. A single, admitted coding error made on Respondent’s internal patient ledger is wholly inappropriate as a factual predicate for this charge.
There is no allegation of gross or repeated malpractice. The allegation of a coding error has nothing to do with the level of care, skill, or treatment used in the practice of chiropractic medicine. The “practice of chiropractic medicine” as used in the charged statute, “means a noncombative principle and practice consisting of the science, philosophy, and art of the adjustment, manipulation, and treatment of the human body[.]” § 460.403(9)(a), Fla. Stat. Pursuant to paragraph (b), the practice of chiropractic medicine includes examining, analyzing and diagnosing the human living body. Conducting the examination is the practice of chiropractic medicine; assigning a CPT code to that mode of practice is not itself the practice of chiropractic medicine. While the statutory definition goes on at length to elaborate what is and is not included in the practice of chiropractic medicine, nothing in the definition could be interpreted to include the process of assigning CPT codes as part of the practice of chiropractic medicine. Petitioner offers no argument to explain how this charge makes any sense at all. Respondent is not guilty of the charge in Count II.
Statutory and Rule Violations Not Charged
As found above, Petitioner’s expert opinion was largely predicated on his insinuation of assorted potential
statutory and rule violations that were not charged in any of the Administrative Complaints.
In particular, Dr. Shreeve’s commentary touched upon a number of potential statutory disciplinary charges that were not included in the Administrative Complaints approved by the PCP. Illustratively, there were no charges under the following paragraphs in section 460.413(1), paraphrased as follows:
(m): failing to keep legible, adequate medical records that justify the course of treatment of the patient;
: delegating professional responsibilities to staff not qualified by training, experience, or licensure to perform them;
: failing to comply with a lawfully issued subpoena of the Department;
(y): failing to preserve the identity of funds and property of a patient, maintain records of same, render appropriate accounts to patients regarding them, and promptly pay or deliver to the patient funds in the physician’s possession which the patient is entitled to receive.
The Administrative Complaints likewise do not charge Respondent with violating Board rules that detail requirements for medical records and trust accounting procedures, respectively codified in rules 64B2-17.0065 and 64B2-14.001.
The failure to include factual allegations and charges under any of these statutes and rules in the PCP-
approved Administrative Complaints means that no violations of these statutes and rules can be found. Christian, 161 So. 3d at 417. Further, any insinuation of potential violations under these uncharged statutes and rules cannot be considered as bearing on the charged violations or the discipline to be imposed. Gonzalez, 102 So. 3d at 237 (see endnote 16).
Appropriate Penalty
Based on the findings above, the following factors in the Board’s rule 64B2-16.003(2) are relevant to the consideration of the appropriate disciplinary action to be imposed and whether to impose discipline outside of the disciplinary guidelines:
The proven violations did not and do not constitute a danger to the public.
There were two unrelated and distinct offenses found: failure to provide copies of Medicare claims to A.M. upon request; and failure to provide medical records to B.O. and R.O. upon their joint request. Although the failure to provide medical records to B.O. and R.O. constitutes two distinct offenses, they are related offenses in the sense that there was a failure to respond to their joint written request.
No actual damage, physical or otherwise, was caused by the proven violations.
It has been over 11 years since initiation of Case No. 2007-26167, imposing discipline in connection with advertising. There were roughly six years between the advertising addressed in that case and the actions giving rise to these four cases. Respondent’s only other disciplinary action was Case No. 2006-28498, initiated more than 12 years ago. More than eight years passed between the matters giving rise to that case and the actions that gave rise to these four cases.
Respondent has practiced as a chiropractic physician for 19 years.
Respondent’s two disciplinary actions were resolved in tandem by Final Orders issued May 13, 2008, based on agreed resolution rather than after administrative hearings. In Case No. 2007-26167, the disposition was: issuance of a Letter of Concern; $2,500.00 fine; four hours of continuing education, two of which had to be in laws and rules; modification of current advertisements; and payment of costs incurred in investigation and prosecution. In Case No. 2006-28498, the disposition was: issuance of a Letter of Concern; $1,500.00 fine; patient refund of $2,775.00; ten hours of continuing education, with six hours in recordkeeping and documentation, two hours in laws and rules, and two hours in ethics; one year of probation, practicing under
the indirect supervision of a monitor; and payment of costs incurred in investigation and prosecution.
Imposition of measured discipline along with the requisite costs of investigation and prosecution would have a substantial deterrent effect, particularly where, as here, the investigation spanned so many years and involved turnover in the prosecutor-expert witness team. Imposition of the ultimate penalty of license revocation would not have a deterrent effect in the sense of deterring Respondent from committing these violations again. Instead, it would remove him from being in a position to respond to patient medical and claims records requests again, while also removing him from being in a position to continue providing good chiropractic care that helps to alleviate the pain suffered by his patients.
Respondent’s license is the means to his livelihood.
Suspension or termination would obviously adversely affect his livelihood, with the impact ranging from harmful to devastating.
Respondent took corrective actions in the case in which it was determined that a patient refund was owed, by providing P.D. with a full refund in April 2015, years before the Administrative Complaint was issued. Respondent has acknowledged the mistakes made and the office practice issues giving rise to the 2014 patient complaints at issue in these cases, and believes that his office practice has improved.
It is unknown whether A.M. has been provided the Medicare claims forms she had requested, or whether B.O. and
R.O. have been given copies of their medical records, as requested. These documents were all produced during the investigation, apparently in 2014. The impression given from one patient’s deposition testimony was that Petitioner may have given them copies of the records they requested after they were produced by Respondent.
No evidence was presented of any related (or unrelated) violations by Respondent in another state.
As found above, Respondent is reasonably characterized as negligent in failing to put in place office protocols and procedures to ensure that patient requests for records are promptly addressed, and to ensure a more methodical handling of insurance claims and payments. There was no credible evidence that Respondent acted intentionally to commit violations or to allow his staff to ignore records requests.
The penalty range for a first-time violation of section 460.413(1)(aa) (failure to provide insured with copy of claim) is from a minimum fine of $500.00 and one year of probation, up to a maximum fine of $5,000.00 and/or two years of probation. Fla. Admin. Code. R. 64B2-16.003(1)(gg).
The penalty range for a first-time violation of section 460.413(1)(i) (failure to perform a statutory or legal
obligation) is from a minimum fine of $1,000.00 and a letter of concern, up to a maximum fine of $7,500.00 and/or two years of suspension followed by two years of probation. Fla. Admin.
Code. R. 64B2-16.003(1)(o).
Upon consideration of the foregoing factors and the Board’s disciplinary guidelines, an appropriate penalty for the proven violations (one first-time violation of section 460.413(1)(aa) and two related counts of a first-time violation of section 460.413(1)(i) through a violation of rule 64B2- 17.0055(1)) is as follows: a total of three years of probation, including indirect supervision by a monitor on terms set forth in a final order; and payment of a $3,000.00 administrative fine. In addition, the Board should impose a requirement of 20 hours of continuing education in areas determined appropriate in the Board’s discretion, and costs of the investigation and prosecution.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine:
In Case No. 18-4484PL:
Dismissing Counts I, II, and IV; and
Finding that Respondent violated section 460.413(1)(aa), as charged in Count III;
In Case No. 18-4485PL:
Dismissing Counts I, III, and IV; and
Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II;
In Case No. 18-4486PL:
Dismissing Counts II, III, and IV; and
Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II;
In Case No. 18-4487PL, dismissing Counts I and II;
Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board;
Imposing a fine of $3,000.00;
Requiring continuing education deemed appropriate by the Board; and
Requiring payment of the costs of investigation and prosecution of the charges on which violations were found.
DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida.
S
ELIZABETH W. MCARTHUR
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
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 15th day of February, 2018.
ENDNOTES
1/ Citations herein are to the law in effect at the time of the alleged violations. The charges in the Administrative Complaints cite to either Florida Statutes (2013) or, ambiguously, to Florida Statutes (2012-2013), presumably in recognition of the fact that the alleged violations may have begun when the 2012 laws were in effect, but ended after 2013 laws took effect. Likewise, the Administrative Complaints that charged a rule violation cited “rule 64B2-17.0055(1), Florida Administrative Code (2012-2013).” Having carefully compared the statutory and rule provisions charged, in the forms in effect in 2012 versus 2013, the ambiguous manner of charging statutory and rule violations under the 2012-2013 versions was unnecessary.
There were no changes in any respect to any of the charged statutory paragraphs or to the rule from 2012 to 2013. Indeed, the provisions charged remain in their same form in the 2018 Florida Statutes and in the current Florida Administrative Code.
2/ Petitioner prepared two sets of Joint Exhibit notebooks and two sets of Petitioner’s Exhibit notebooks, one set with patient-identifying information redacted and one unredacted set. All of the unredacted exhibit notebooks have been sealed in a box with a label specifying the confidential nature of the contents, with access to be restricted to parties and tribunals
needing access for purposes of this litigation and any appeals. Respondent’s unredacted exhibits with patient-identifying information are also placed in the same sealed box.
3/ Joint Exhibit 13 was listed as Respondent’s Responses to Request for Admissions, while Joint Exhibit 14 was Respondent’s Responses to First Set of Interrogatories. At hearing, it was agreed that these two exhibits should be supplemented as follows: first, by including the Request for Admissions and the First Set of Interrogatories; and then, by expanding the exhibits to include four separate sets of requests for admissions with responses in Joint Exhibit 13, and four separate sets of the first interrogatories with responses in Joint Exhibit 14. Supplementation to include four complete sets of the discovery requests and responses was necessary because the discovery was served separately in each case before consolidation. Petitioner provided one set of the supplemental material, which has been added to the unrestricted redacted Joint Exhibit notebooks only (as patient initials were used in the discovery).
4/ Petitioner’s PRO erroneously included Joint Exhibit 10 in the listing of exhibits admitted in evidence. Proposed Joint Exhibit 10, the transcript of a deposition of Meagan Lawrenz, was not admitted, nor was it offered or proffered by either party, and it has been removed from both the redacted and unredacted Joint Exhibit notebooks. Counsel for Petitioner represented that the deposition had been included in the Joint Exhibit notebooks in anticipation of a stipulation to admit the deposition in lieu of live hearing testimony. However, counsel for Respondent did not agree to that, and the witness testified at the hearing instead. (Tr. 38-39). Since this non-expert, non-party witness was available and testified at the hearing, there would be no legal basis for admitting the deposition in evidence, had it been offered. Although counsel for Respondent used a few portions of the deposition to impeach the witness during her testimony, the limited use was accomplished without the need to offer the entire deposition into evidence.
5/ Respondent’s Exhibits 1, 2a through 2d, and 6 contained patient-identifying information that had not been redacted. Counsel for Respondent was directed to submit redacted exhibits after the hearing. However, the post-hearing submission fell short of full compliance with that directive. The undersigned has flagged the missed redaction items with post-it notes.
Respondent’s partially-redacted Exhibits 1, 2a through 2d, and 6 have been placed in an envelope identifying the contents, for
which access should be restricted until the remaining patient- identifying information is redacted. The post-it notes have been left on these documents to aid in completing the redaction task should it become necessary. Though unfortunate that the Department must be asked to complete the redaction task left incomplete by counsel for Respondent, this was deemed preferable to further delay so that the flagged documents could be returned to counsel for Respondent to complete the redaction directive.
6/ The only hearsay exception asserted at hearing was the business records exception, which both parties agreed was applicable to the patient records in evidence as Joint Exhibit 16a through 16c, and Respondent’s Exhibit 1. These records were admitted under the business records hearsay exception, based on the certifications in evidence as Respondent’s Exhibit 7.
7/ By agreeing to an extended deadline for post-hearing submissions beyond ten days after the filing of the transcript, the parties waived the 30-day time period for filing the Recommended Order. See Fla. Admin. Code R. 28-106.216.
8/ For what it is worth (perhaps nothing), Meaghan Lawrenz, a billing employee who worked for Respondent for nine days in a three-week period, which she believed was in 2013, testified that she never heard Respondent tell a patient that Vax-D therapy would be covered by Medicare. Overall, Ms. Lawrenz was not a credible witness. Her testimony was generally negative towards Respondent, and wholly unbelievable on a wide variety of matters that an employee who only spent nine days working in Respondent’s office could not possibly know. Despite her denial of bias, she now works for a nearby competitor. Her testimony is not given any weight.
9/ Patient A.M. was asked if she “ever” contacted Medicare to ask about claims filed by Respondent’s office, and she said yes, she called “Medicare” and was told that there were no claim forms submitted by Respondent’s office. No finding of fact can be made based solely on Patient A.M.’s hearsay testimony as to what she was told. The accuracy of information obtained by A.M. by telephone at an unknown point in time would be suspect even if A.M. had given the date of her telephone call.
10/ There is no different enumeration of the five spinal regions in the record. However, in Dr. Shreeve’s deposition testimony, he opined that the June 6, 2013, adjustments affected only two regions because the sacrum and ilium were in the same spinal region. Since Petitioner bears the burden of proof, it would be
inappropriate to side with Dr. Shreeve’s deposition testimony to reject Dr. Shreeve’s conflicting hearing testimony. Instead, the inconsistency in his testimony on this point means that Petitioner did not prove its allegation of improper CPT coding.
11/ Petitioner’s PRO seeks to add yet another allegation, not in the Administrative Complaint, regarding the Medicare claims submitted for A.M.’s treatment. Petitioner asserts that Respondent overbilled by using the same CPT codes twice on the same dates. As Respondent testified, it would be wrong to use the same CPT codes twice for a single office visit. What Petitioner has overlooked is that the dates identified with duplicate CPT codes were all during the early weeks of treatment, when the treatment plan called for two sessions per day. A.M.’s medical records confirm that on the dates questioned by Petitioner, there were two office visits and two treatment sessions, one in the morning and one in the afternoon.
12/ It is noted that B.O.’s deposition testimony equivocated on this point, among other points. Overall, her deposition testimony was sarcastic at times and argumentative at times, and her testimony did not always square with the demonstrable facts. In contrast, when she and R.O. submitted a statement of their complaint to Petitioner, they represented that they both “had some relief from pain” as a result of their treatment with Respondent. To the extent her deposition testimony was different, the testimony was not credible.
13/ B.O.’s bank records attached to her deposition show that on June 7, 2013, B.O. wrote a check for $50.00 to which Respondent’s office affixed a stamp with the office name as payee. The $50.00 payment covered two copays, one for the visit that day, and the other for her previous visit on June 3.
Before the June 3 and June 7 visits, B.O.’s two previous visits were May 31 and May 28, 2013. B.O. did not make a payment on May 28, 2013, but made a payment on May 31, 2013 (posted June 3, 2013) for $50.00, for the two copays for May 28 and May 31.
After the June 7 visit and payment, B.O.’s next visit was
June 11, 2013, when she made no payment, followed by her visit on June 14, 2013, when B.O. made another $50.00 payment to cover copays for her visits on June 11 and June 14, 2013. These payments for copays incurred on June 3, 7, 11, and 14, 2013, shown by B.O.’s own bank records, are corroborated by Respondent’s medical records for B.O., including his notes and the SOAP notes for each visit. All of the evidence matches up, except for B.O.’s testimony denying that she received treatment at Dr. Aderholdt’s office on those four days.
14/ Respondent’s former office manager, Lisa, was named by B.O., R.O., and P.D. Neither A.M. nor J.M. could recall the names of any of the staff persons, whom they described alternatively as an office manager, nurse, or secretary, and a billing girl.
Respondent testified that the somewhat-chaotic administrative practices in his office, in areas such as accounting, billing, and claims management, occurred during a time period when the office manager, Lisa, had been sick. She subsequently passed away. While this information does not excuse chaotic office practices, it provides relevant context, as does Respondent’s testimony that he has taken steps to address these issues with the staff he has employed since the 2013-2014 time period during which these matters occurred.
15/ According to two transmittal letters from Respondent’s counsel to the Department’s former prosecuting attorney,
Tari Rossitto-Van Winkle, CDs with the requested patient charts were sent on November 21, 2014; and four CDs containing the requested patient charts were sent on December 2, 2014.
16/ Although Petitioner’s PRO does not directly suggest that Respondent be found guilty of violations not alleged or charged, Petitioner more stealthily advocates accepting Dr. Shreeve’s opinions that insinuate a litany of perceived violations nowhere alleged or charged in the Administrative Complaints, as the reasons for escalating these cases from relatively minor administrative snafus that might be understandable to asserted fraud, exploitation, and public endangerment. Petitioner cannot evade the prohibition on disciplining a licensee for matters not charged by “considering” them as bearing on the charged violations and the discipline to be imposed. “Boards may not consider matters not formally charged in the administrative complaint in imposing disciplinary sanctions without violating due process. . . . A due process inquiry is not satisfied simply because the final order is limited only to the charges in the administrative complaint.” Gonzalez v. Dep’t of Health,
120 So. 3d 234, 237 (Fla. 1st DCA 2013)(reversing a final order because the Board considered matters not charged in the administrative complaint; although the final order only found the chiropractor guilty of the charged offenses, the court determined from the Board’s questions and the nature of the penalties imposed that the Board improperly considered uncharged matters, and but for the Board’s error, the Board may have reached a different result).
Petitioner’s citation to a civil declaratory judgment action as authority for the notion that issues may be tried “by
consent,” does not support Petitioner’s attempt to allow for consideration of uncharged matters as grounds for Dr. Shreeve’s opinion. There was no consent here to litigating issues of fact or law extraneous to the Administrative Complaints. The issues of fact and law to be litigated, framed in the Joint Pre-hearing Stipulation, were limited to those facts alleged and law charged in the Administrative Complaints. Since none of these extraneous matters were placed in issue, they were not fleshed out with competent evidence in the record. No motion was made to amend the Administrative Complaints to conform to the additional matters allegedly tried by consent. Had such a motion been filed, it would have been denied. See In re: Lonnie Evans, Case No. 10-6459EC, RO at 17-18 (Fla. DOAH Feb.
16, 2011)(denying a motion by the Commission on Ethics’ advocate to conform the pleadings to the evidence to add an additional factual basis for discipline, because the Commission’s Order Finding Probable Cause did not include those factual allegations as a predicate for the statutory violation charged).
While the Department has statutory authority to drop allegations and charges in an administrative complaint it is prosecuting, the Department is not given authority to expand the allegations or charges in administrative complaints approved by PCPs. The Department knows what it would have had to do (prior to the hearing) in order to expand the factual allegations and charges in the Administrative Complaints. As the Department has done before in other cases, it would have had to move to relinquish jurisdiction in order to present the case again to a PCP so that the PCP could determine whether to authorize additional allegations and charges. See, e.g., Dep’t of Health, Bd. of Chiropractic Med. v. Higginbotham, Case No. 10-2796PL, RO at 2 (Fla. DOAH May 11, 2011; Bd. of Chiro. Med. Aug. 26, 2011) (reciting background of case, which originated from a prior administrative complaint that was being prosecuted at DOAH as Case No. 06-2669PL until the Department moved to relinquish jurisdiction “so that the matter could be returned to a probable cause panel of the Board of Chiropractic Medicine, which would evaluate potential new charges against Respondent”; the PCP approved an amended administrative complaint, Respondent completed a new election of rights, and the case was returned to DOAH for proceedings on the newly-approved amended administrative complaint).
COPIES FURNISHED:
Derrick Jovan McBurrows, Esquire Department of Health
Prosecution Services Unit Bin C-65
4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Kenneth A. Scaz, Esquire Golden Scaz Gagain, PLLC
201 North Armenia Avenue Tampa, Florida 33609 (eServed)
Eric L. Fryson, Esquire Department of Health Prosecution Services Unit Bin C-65
4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
Anthony B. Spivey, DBA, Executive Director Board of Chiropractic Medicine
Department of Health
4052 Bald Cypress Way, Bin C-07 Tallahassee, Florida 32399-3257 (eServed)
Louise Wilhite-St Laurent, Interim General Counsel Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 18, 2019 | Agency Final Order | |
| Feb. 15, 2019 | Recommended Order | Dr. did not give medical records to 2 patients & did not provide copies of Medicare claims to 1 patient. No wrongful intent proven. DOH did not prove other charges, & matters not alleged or charged, in attempt to revoke lic. for fraud/exploitation. |
