Jan 12 2009 15:48 Jan 12 2009 15:47 P. 08 STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, : v. - "CASE NO. 2006-30994 GARY BORAKS, D.C. : RESPONDENT, ADM! TIV. LAIN Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Gary Boraks, D.C, In support Petitioner alleges: . | : 1, Petitioner is the state department charged with regulating the practice of Chiropractic Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2. At all times material to this Complaint, Respondent was a chiropractic physician within the State of Florida, having been issued license number CH 4691 on or about March 19, 1985. nee on. lL Jan 12 2009 15:48 Jan 12 2009 15:47 P.09 3. Respondent’s address of record is 6388 Silver Star Road, Suite 2G, Orlando, Florida 32818. , | 4, On or about February 27, 2006, patient M.H. presente to the Respondent for treatment of injuries sustained during an automobile accident. ! 5. The following orthopedic tests were listed as positive although there is no record as to what constituted the positive nature of these tests with respect to either the nature, location or distribution of the reported pain or symptoms: Foraminal Compression, Laseque’s test, Soto Hall, Kemps, leg drop, and cervical distraction. 6. Although the patient complained of bilateral knee pain, there is no record of any examination or evaluation being performed of the ‘patient's knees. | 7. Based on the examination, Respondent recommended treatment consisting of manipulation, electric muscle stimulation, moist heat, ultrasound and mechanical traction daily for two weeks and then 3 times a week for one month. | 8.. “Patient V.H. returned to see the Respondent and received some combination of the above-mentioned treatments on the following J:\PSU\Madical\Tobey\___C A5 & 5\Boraks, Gary\2006-30994\Borak.ac.chiro. patient payments.dac , 2 | : i Jan 12 2009 15:49 Jan 12 2009 15:47 P.10 dates: February 28; March 1, 2, 8, 9, 13, 14, 15, 16, 20, 21, 22, 23, 28, 29, 30; April 3, 4, 11, 12, 13, 18, 19, 24, 25; May 1, and 8, 206, 9. The daily treatment notes failed to adequately record patient M.H.'s objective symptoms. | 10. The daily treatment notes failed to indicate the specific spinal segments that were adjusted. , | 11. Respondent’s daily treatment notes for patient MAH. failed to contain any clinical justification for mechanical spinal traction, | | 12. The daily treatment notes did not justify ‘the frequency, duration or types of treatment billed for by the Respondent to patient . M.H.'s insurance company. | 13, Several of the treatment notes record manipulation of the cervical and lumbar spine, however, Respondent billed using CPT Code 98941 which indicates that 3 to 4 spinal levels were adjusted. : 14. At some time during the treatment, one of Respondent's employees gave patient M.H. $1,000. . | nt On | 15. Petitioner re-alleges and incorporates. paragraphs one (1) through fourteen (14) as if fully set forth herein. : J:\PSU\Medical\Tobey\___C A 5 E S\Boraks, Gary\2006-30994\Borak.ac.chiro. patient payments.doc be 1 7 bs & ie # Jan 12 2009 15:49 Jan 12 2009 15:48 P.11 16. Section 460.413(1)(m), Florida Statutes (2005)-(2007), provides that failing to keep legibly written chiropractic medical records that identify clearly by name and credentials the licensed chiropractic physician rendering, ordering, supervising, or billing for each examination or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories, examination results, X rays, and diagnosis of a disease, condition, or injury is grounds for disciplinary action by the Board of Chiropractic Medicine | 17. Section _460.413(1)(ff), Florida Statutes (2005)-(2007), provides that violating any provision of chapter 456 or chapter 460, or any rules adopted pursuant thereto is grounds for disciplinary action by the Board.of Chiropractic Medicine. ) 18. Rule 64B2-17,0065, Florida Administrative Code CFA C."), sets forth the minimal recordkeeping standards as set forth below in pertinent part: | a. Rule 64B2-17,0065(3), FA.C,, states. that the medical record shall be legibly: maintained and shall contain sufficient information’ to. identify | the patient, support the diagnosis, justify the treatment and document the course and results of | treatment accurately, by including, at a minimum, | patient histories; examination results; test results; records of drugs dispensed or administered; reports | of consultations and hospitalizations; and copies of | records or reports or other documentation obtained - | . J:\PSU\Medical\Tobey\__C A SE 5\Boraks, Gary\2006-30994\Borak.ac.chiro.patient payments.doc *: | a oe . 4 i 1 H yt " oe | ; | Jan 12 2009 15:49 Jan 12 2009 15:46 P.12 from other health care practitioners at the request _ of the physician and relied upon by the physician in determining the appropriate treatment of the | patient. Initial and follow-up services. (daily | records) shall consist of documentation to justify care, | b. Rule 64B2-17.0065(4), FA.C,, states | that all patient records shall include’ a patient | history; symptomatology and/or wellness care; examination finding(s), including X-rays when» medically or clinically indicated; a diagnosis; a. prognosis; assessment(s); a treatment Plan; and, ! treatments provided. c. Rule 64B2-17.0065(5), FA.C,, states all | entries made into the medical records shall be accurately dated. The treating physician must be readily identifiable either by signature, initials, or printed name on the record. Late entries are permitted, but must be clearly and accurately noted as late entries and dated accurately when they are entered into the record. . d. Rule 64B2-17.0065(6), FA.C., states that once a treatment plan is established, daily records shall include: (a) Subjective complaint(s); (b) Objective finding(s); (c).Assessment(s); (qd) Treatment(s) provided, and (e): Periodic reassessments as indicated. - 19. Respondent violated Section 460.413(1)(m), Florida Statutes (2005)-(2007) and/or Rule 64B2-17.0065, FA.C., in one or more of the following ways: | (@) By indicating that the following orthopedic tests were positive without a record as to what constituted the positive nature J:\PSU\Medical\Tobey\__C A 5 E $\Boraks, Gary\2006-30994\Borak.ac.chiro.patient payments. doc : t § od Jan 12 2009 15:49 Jan 12 2009 15:46 P.13 of these tests with respect to either the nature, location or distribution of the reported pain or symptoms: Foraminal Compression, Laseque’s test, Soto Hall, Kemps, leg drop, and cervical distraction; : (b) By failing to failing to: record an examination of patient M.H.’s knees even though she complained of knee pain bilaterally; (c) By failing to adequately record patient Mins objective symptoms in the daily treatment notes; : (d) By failing record what specific spinal pean were adjusted in the daily treatment notes; (e) By failing to include any clinical justification for mechanical spinal traction provided to patient M.H. in the patient . | notes; | (f) By failing to justify the frequency, duration, and types of treatments provided to patient M.H. in the daily treatment notes; 20. Based on the foregoing, Respondent violated Section 460.413(1)(m), Florida Statutes (2005)-(2007) and/or Rule 64B2-17.0065, \ F.A.C., by failing to keep adequate medical records. | : | J:\PSU\Medical\Tobey\__C AS E S\foraks, Gary\2006-20994\Borak.ac.chiro.patient paymants.cgc ; . 6 : iy Y if Peg Jan 12 2009 15:50 Jan 12 2009 15:49 P14 Count Two | 21. Petitioner re-alleges and incorporates paragraphs one (1) through fourteen (14) as if fully set forth herein. | 22. Section 460.413(1)(n), Florida Statutes (2005)-(2007), subjects a chiropractor to discipline for 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. 23. Rule 642B2-17,005(1), FA.C., states. that the overutiization of chiropractic services or practice by exercising influence on a patient insuch _ @ manner as to exploit the patient for financial gain: of a licensee or a third party is prohibited by Section 460.413(1)(n), Florida Statutes. | 24, Overutilization of chiropractic services or practice is defined as services or practices rendered, or goods or appliances sold by a | chiropractic physician to a patient for financial gain of ‘the chiropractic physician or a third party which are excessive in quality or quantity to the justified needs of the patient. 25. Rule 6482-17,005(3)(a), FA.C., states that overutilization . i occurs when the written chiropractic records, required to be kept by subsection 460.413(1)(m), Florida Statutes, do not justify or substantiate J:\PSU\Madical\Tobey\__€ AS E S\Boraks, Gary\2006-30994\Borak.ac.chiro.patient payments. doc : 7 po Jan 12 2009 15:50 Jan 12 2009 15:49 PTE the quantity or number of chiropractic services, practices rendered, or goods or appliances sold by a chiropractic physician to a patient. 26. Respondent Violated Section 460.413(1) (n), Florida Statutes, through one or more of the following actions: : (a) By billing patient M.H’s insurance company for treatments not justified by the medical records; (b) By billing patient M.H.’s insurance using CPT Code 98491 even though the records indicate only two spinal regions were adjusted; or, ! (c) By having an employee give patient M.H, $1,000. 27, Based on the foregoing, Respondent has Violated Section 460.413(1)(n), Florida Statutes (2005)-(2007). | . WHEREFORE, the Petitioner respectfully requests that the Board of Chiropractic Medicine enter an order imposing one or more of the following . penalties: permanent revocation or suspension of: Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. J:\PSU\Medical\Tobey\__ _C AS E S\Boraks, Gary\2006-30994\Borak.ac, chiro, patient payments.dac : | 8 sy i ap Pp | Jan 12 2009 15:50 Jan 12 2009 15:49 P.16 ‘ _ . SIGNED this_J®_ day of ___“D.. | 2008. Ana M. Viamonte Ros, M.D., M.PH. State Surgeon General Tobey Sénul Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 _ FILE _ Florida Bar # 0542131 | DEPARTMENT OF HEAL (850) 245-4640 ext 8176 SLERK: tobey_schultz@doh. state. fl.us DATE &U-'O8 PCP: omelet ; Fons + Velho. | - J:\PSU\Medical\Tobey\__C A 5 E S\Boraks, Gary\2006-30994\Borak.ac.chiro.patient paympents.doc _ | . hoo ; oo | Jan 12 2009 15:50 Jan 12 2009 15:49 PL? NOTICE OF RIGHTS ! | Respondent has the right to request a hearing to be conducted in accordance with Section 120,569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. JAPSU\Medical\Tobey\__C AS E S\Boraks, Gary\2006-30994\Borak.ac.chiro.patiant pamper ee . \ 10 Toe

Docket for Case No: 09-000158PL