STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTICIANRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1118

)

ALAN GOLDBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on November 4, 1982, in Fort Lauderdale, Florida. The transcript was filed on November 22, 1982, and the parties were allowed 15 days thereafter to submit proposed findings of fact and conclusions of law. This time was extended to December 13, 1982, but the submission by the Respondent was not made until December 20, 1982, because it was directed to an incorrect address.

Nevertheless, the proposed findings and conclusions filed by the parties have been considered. Where not adopted, they were found to be contrary to the weight of the credible evidence, or were irrelevant or immaterial.

By stipulation at the close of the hearing, the time for submission of this Recommended Order was extended to 30 days after the receipt of proposed findings and conclusions, or January 19, 1983.

APPEARANCES

For Petitioner: Gerald S. Bettman, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Barry S. Franklin, Esquire

4601 Sheridan Street, Suite 306

Hollywood, Florida 33021

By Administrative Complaint issued on March 1, 1982 the Respondent was charged with violating two subsections of Section 484.014, Florida Statutes. Specifically, the Complaint alleges that the Respondent filed a record or report with Blue Cross/Blue Shield which he knew to be false; and that his conduct in the practice of opticianry was fraudulent or deceitful, or negligent, incompetent, or amounted to misconduct in that practice.

The Petitioner presented six witnesses in support of the Administrative Complaint, two representatives from Blue Cross/Blue Shield of Florida, an optometrist, an optician who briefly worked for the Respondent, and the husband of a customer of the Respondent's store. Another witness testified, but

presented no relevant evidence. Seven exhibits were offered by the Petitioner and received. The Respondent testified in his own behalf, and presented two other witnesses, who were his business partner and the wife of his partner.

Four exhibits were received in evidence.

Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts:

FINDINGS OF FACT

1. The Respondent, Alan Goldberg, is an optician licensed to practice in the State of Florida under license number 0000901 issued in 1974.

   
   

2. The Respondent has been practicing opticianry for the past seven years under the name of Insight Optical, Inc., at 3801 North University Drive, in Sunrise, Florida. In addition, since 1978 the Respondent has been a 50 percent partner in an optical store in Davie, Florida, located at 4280 South University Drive. The other 50 percent partner in this store was Myron Kirschner.

   
   

3. The Respondent provided opticianry services to both of these stores in that he was in charge of producing eyeglasses for them. The Respondent was also responsible for all medicare forms in the partnership store as well as his own store.

   
   

4. In July of 1979, approximately, Florence Blanchard went to Insight Optical, Inc., in Davie, and ordered eyeglasses. The glasses which were dispensed to her were made by the Respondent, and he submitted a medicare claim to Blue Cross/Blue Shield for Aphakic eyeglasses. The glasses prepared for and dispensed to Florence Blanchard were not Aphakic glasses.

   
   

5. Aphakic eyeglasses are prescribed for patients who have had cataract surgery, and they are much more expensive than standard bifocal or reading glasses. Medicare will reimburse patients only for Aphakic glasses.

   
   

6. In order to receive payment, the optician submits to the health insurance company a medicare claim form using a special code number, 03050, to indicate that the eyeglasses provided to the patient are Aphakic glasses.

   
   

7. It is a common practice for patients to obtain a pair of temporary glasses immediately after surgery, and then, when their eyes have healed, to obtain a second pair of permanent glasses. Medicare will pay for both sets of eyeglasses if they are the Aphakic type.

   
   

8. Mrs. William Feldman was another patient at Insight Optical, Inc.

   After cataract surgery, she presented two prescriptions to Insight Optical, Inc. and received two pair of eyeglasses. The Respondent submitted to Blue Cross/Blue Shield two claim forms, one for temporary Aphakic glasses and another for permanent Aphakic glasses. Neither pair of eyeglasses dispensed to Mrs.

   Feldman were Aphakic glasses.

   
   

9. Dr. Robert Reeves was a subcontractor employed by the Respondent to work in the Davie store, but who also worked in the Sunrise store. He was instructed by the Respondent to have patients sign two medicare reimbursement forms whenever the patient was eligible for medicare. He did this for each medicare- eligible patient he saw, including a patient named Thelma Hall. He never dispensed two pair of eyeglasses to a patient on the same occasion, including Thelma Hall, and he never had to dispense replacement glasses after

   the first pair had been dispensed. When he questioned the Respondent about the practice of having patients sign two medicare claim forms, the Respondent advised him not to worry. However, Dr. Reeves felt that he could be looking for trouble by continuing to work for Insight Optical, Inc., and he left.

   
   

10. In 1978 and 1979 the Respondent submitted to Blue Cross/Blue Shield between 50 and 75 medicare claims for providing temporary and permanent Aphakic eyeglasses to patients when only one pair of Aphakic glasses had been dispensed, or when a different and less expensive type of glasses had actually been issued. The total overbilling by the Respondent during 1978 and 1979 amounted to

    $10,843.04.

    
    

11. In December of 1980, Blue Cross/Blue Shield made demand upon the Respondent for repayment of the $10,843.04 in overbilling, but no money has been received, and no repayment arrangement was made by the Respondent. Since then, Blue Cross/Blue Shield has placed the Respondent on a financial offset plan in which any claims payable to Insight Optical, Inc., are held as offsets against the repayment that is due. This offset amounts to approximately $1,300 now.

    
    

12. Since 1980 the Respondent has not been taking an assignment of medicare claims, but these claims have been submitted directly to Blue Cross/Blue Shield by the patients.

    
    

13. The Respondent contends that any overpayment he might have received was the result of simple billing errors, and that any improper claims that might have been submitted by him were due to the failure of the governmental or insurance authorities to properly instruct him relative to claim procedures. However, these contentions are not supported by the weight of the credible evidence.

    
    

14. During the course of the Respondent's responsibility for the preparation and submission of medicare forms for both stores, he signed and filed such forms with Blue Cross/Blue Shield between 50 and 75 times. In connection with each claim the Respondent inserted the code number 03050, which is the only code number that indicated that Aphakic eye glasses had been dispensed. The Respondent knew or should have known that medicare would only pay for Aphakic eyeglasses, and that the code number 03050 indicated that Aphakic glasses had been dispensed to the patient. The Respondent also was familiar with the circumstances under which Medicare will pay for two pair of eyeglasses, and his testimony reflects a familiarity with when the Medicare-Blue Cross/Blue Shield computer will and will not authorize payment. After the Respondent was asked to repay the amount of his over-charges, his claims for assigned payment stopped.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 484.014(1), Florida Statutes, sets forth grounds for disciplinary action. Subsection (c) specifies one such act to be:

    
    

    "Making or filing a report or record which the licensee knows to be false . . ."

    Subsection (f) specifies another such act to be:

    
    

    "Fraud or deceit, or negligence, incom- petency, or misconduct, in the authorized practice of opticianry."

    
    

17. Section 484.014(2), Florida Statutes, authorizes the Board of Opticianry to enter an order imposing one or more of the following penalties when it finds a licensee guilty of any of the grounds set forth in subsection (1):

    
    

    1. Revocation or suspension of a license.

    2. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    3. Issuance of a reprimand.

    4. Placement of the optician on probation for a period of time and subject to such conditions as the board may specify, including requiring the optician to

       submit to treatment or to work under the supervision of another optician.

       
       

18. The incidents described in the Findings of Fact above establish specific violations of Section 484.014(1)(c), Florida Statutes, in that the Respondent submitted to Blue Cross/Blue Shield claims for Mrs. William Feldman and for Florence Blanchard that he knew or should have known were false. In addition, Section 484.014(1)(f), Florida Statutes, was violated in particular in that the Respondent submitted false claim forms for Mrs. William Feldman and for Florence Blanchard, and in general on 50 to 75 occasions when the Respondent signed and submitted to Blue Cross/Blue Shield false claims for Aphakic eyeglasses when none were dispensed, or when only one pair was furnished to a patient whose claim form showed that two pair were issued. The evidence warrants revocation of the Respondent's license.

RECOMMENDATION

From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Alan Goldberg, be found guilty as charged

in the Administrative Complaint, and that his license number 0000901 be REVOKED.

THIS RECOMMENDED ORDER entered on this 13th day of January, 1983, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

COPIES FURNISHED:

Gerald S. Bettman, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Barry S. Franklin, Esquire Suite 306

4601 Sheridan Street

Hollywood, Florida 33021

Fred Varn, Executive Director Florida Board of Opticianry

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1983.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTICIANRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DOAH Case Number 82-1118

vs. License Number DO 0000733

ALAN GOLDBERG,

Respondent.

/

FINAL ORDER

This case came for final action by the Board of Opticianry on March 11, 1983, in Tampa, Florida. An administrative hearing held pursuant to 120.57(1), Florida Statutes, resulted in the issuance of a Recommended Order (attached hereto as Exhibit A) which was reviewed by the Board. Respondent filed exceptions to said Order. Upon consideration of the Recommended Order, Petitioner's Exceptions, and the complete record in the proceeding, it is ordered:

1. Respondent's Exceptions to the Findings of Fact in the Recommended Order are rejected; the findings of fact in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

2. Respondent's Exceptions to the Conclusions of Law are rejected; the Conclusions of Law in the Recommended Order are approved and adopted and incorporated herein by reference.

   
   

3. Respondent's exception and alternative suggestion to the Recommendation in the Recommended Order are rejected.

   
   

4. The Recommendation in the Recommended Order is rejected as inappropriate under the circumstances. The Board finds that a more appropriate discipline is a three year suspension, with the condition that in order to obtain reinstatement of his license Respondent must establish that he has repaid Blue Cross/Blue Shield $10,843.04 in full; he must obtain continuing education as required by the Board; and he must pay an administrative fine in the amount of $1000.

THEREFORE, it is ORDERED and ADJUDGED

1. That Respondent shall pay an administrative fine of $1,000 to the Executive Director of the Board within thirty (30) days of this Order.

   
   

2. That Respondent's license to practice opticianry in the State of Florida shall be suspended for a period of three years. In order to obtain reinstatement of his license Respondent must establish that he has repaid Blue Cross/Blue Shield the amount of $10,843.04 in full and that he has obtained continuing education as required by the Board.

DONE AND ORDERED this 9th day of May, 1983.

BOARD OF OPTICIANRY

BY:

H. Fred Varn Executive Director

COPIES FURNISHED:

Spyro T. Kypros, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Alan Goldberg

c/o Wilson Jerry Foster

Suite 617, Lewis State Bank Bldg. Tallahassee, Florida 32301

Docket for Case No: 82-001118

Orders for Case No: 82-001118