STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OPTOMETRY, )
)
Petitioner, )
as. ) CASE NO. 82-2136
)
JOHN T. BECKUM, O.D., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Gainesville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 16, 1983, and went over into the following day. The Division of Administrative Hearings received the hearing transcript on May 6, 1983. The parties filed proposed recommended orders on June 20, 1983. In these proceedings, the parties have been represented by counsel:
For Petitioner: Joseph W. Lawrence, II, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Stephen Marc Slepin, Esquire
Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301
By administrative complaint dated July 12, 1982, petitioner alleged that respondent, at all pertinent times a licensed optometrist, "[b]eginning in or about January 1979 and on diverse dates thereafter through March 1981, provided Medicaid reimbursable optometric services to Medicaid eligible patients and received reimbursement from Medicaid for [these services, but] also billed and received payment from thirteen (13) of these patients for the cost of glasses [in violation of] Section 463.016(1)(e) Florida Statutes (1981) [and] Section 463.016(1)(g) Florida Statutes (1981) [and] Section 463.016(1)(m) F.S."; and, in counts four, five and six, that respondent "billed and received reimbursements from Medicaid for glasses provided to Victoria Williams, Kimblee Griffin and Mrs. Lizzie Robinson but these patients never received glasses from [Dr. Beckum, in violation of] Section 46.016(1)(j), F.S. (1981) [and] 463.016(1)(g), F.S. (1981) [and] Section 463.016(1)(e), F.S."; that respondent "and/or his agents solicited, examined and provided glasses to David Richardson, James McGilvray, Loretta Robertson and Elden Robertson without referrals from Medicaid and for whom no services were requested by the recipient, parent or guardian of the recipient" and that [r]espondent received reimbursements from Medicaid for the services he provided to these patients [in violation of] Section 463.016(1)(e), F.S. (1981) [and] Section 463.016(1)(g), F.S. [and] Sections 463.016(1)(e), and that respondent "provided glasses to sixty-eight Medicaid eligible patients who were not in need of glasses, and the records maintained by [r]espondent for these patients failed to show that the patients needed the prescribed glasses
[in violation of] Section 463.016(1)(k), F.S. by failing to keep written optometric records of the examinations, treatments and prescriptions for those patients [and in violation of] Section 463.016(1)(g), F.S. [and] 463.016(1)(e), F.S. [and] 463.016(1)(m), F.S. [and] 462.016(1)(n), F.S. [sic]";
that respondent "[b]eginning in or about January 1979 and on diverse dates thereafter through March 1981, examined and provided glasses to numerous of his patients without fully performing the required minimum procedures for vision analysis" in violation of "Section 463.016(1)(h), F.S. and Rule 21Q3.07, Florida Administrative Code by failing to meet the minimum examination procedures for visual analysis in examining and prescribing glasses for his patients, and by repeatedly violating Chapter 463, F.S. (1981)," all in violation of "Section 463.016(1)(n), F.S., (1981) [proscribing] gross and repeated malpractice in the practice of optometry."
By letter dated August 3, 1982, respondent's counsel requested "a formal proceeding pursuant to 120.57(1), F.S., before the Division of Administrative Hearings," and, on August 5, 1982, this matter was referred to the division of Administrative Hearings. By notice dated August 12, 1982, final hearing was originally set for January 21, 1983. On petitioner's motion for continuance, final hearing was reset for March 1, 1983. Proceedings on respondent's motion to dismiss and motion for continuance or dismissal of the administrative complaint culminated in an order granting motion to dismiss in part entered February 2, 1983, Appendix A, which the District Court of Appeal, First District, declined to review on an interlocutory basis. Beckum v. State Department "of Professional Regulation, 427 So.2d 276 (Fla. 1st DCA 1983). On account of the pendency of appellate proceedings, however, the final hearing was continued once again, this time on respondent's motion.
Over objection the depositions of Drs. Stephens, Cherdack, Albert and Devine, optometrists who testified as expert witnesses for petitioner, have been received, and their testimony has been deemed competent over respondent's objection. At hearing, petitioner called Mildred Garner, Tom Wallace, Ellen Williams, Catherine Wright and Phyllis Smith on its case in chief. Respondent called Elaine Beckum, Jack Strickland, "O. C. Clarke, Frank A. Broome, Jr., Sylvia Jones, John Buckner, Joyce Courtney and Norman S. Levy, and testified himself. Petitioner's only rebuttal witness was Frank A. Broome, Jr.
All allegations pertaining to Victoria Williams and Kimblee Griffin and the allegations of paragraph eighteen were earlier dismissed. In view of the explicit discussion of Rule 21Q3.07, Florida Administrative Code, before the probable cause panel, respondent's motion to dismiss count fifteen is denied:
Both parties filed proposed recommended orders incorporating proposed findings of fact which have been considered in preparation of the foregoing findings of fact. These proposed findings have been adopted, in substance, for the most part, but those that were not supported by the weight of the evidence, or were irrelevant, cumulative, or subsidiary have not been adopted.
FINDINGS OF FACT
Respondent John Thomas Beckum, a graduate of Bolles Military School and an alumnus of the University of Florida, is a second generation optometrist. His father was chairman of Florida's first Opticians' Board. In 1956, when he earned a B. S. degree and a doctorate of optometry at the Southern College of Optometry in Memphis, Tennessee, respondent graduated salutatorian.
On July 31, 1960, respondent obtained his Florida optometrist's license. He worked for an older optometrist in Jacksonville, Florida, before he moved to Gainesville and began his own practice in 1961. It was also about that time he ceased to be a "formal member" (T. 350) of the Optometric Extension Program (OEP), but he has remained active in several other optometric organizations and has attended continuing education courses. He keeps up with the latest in new equipment in chats with the Gainesville ophthalmologist to whom he refers some of his patients. At the time of the hearing, respondent still practiced in Gainesville and held optometrist's license No. 668. He has been licensed by petitioner at all pertinent times.
As a result of a complaint unrelated to this case, Ellen Williams, a program monitor in the medicaid office of the Department of Health and Rehabilitative Services (HRS) "requested a printout of [Dr. Beckum's] practice," (T. 85) and examined this computer compilation of information about medicaid claims respondent had submitted. In the period July 1, 1979, to June 30, 1980, Dr. Beckum saw 272 medicaid patients of whom 210 received eyeglasses. Of the 272, there were 112 children ten and under. Of these 112 children, 98 received eyeglasses. Of the 98 bespectacled children, 39 were under age six.
At the suggestion of an HRS consultant, Dr. James A. Stephens, some of the respondent's records were examined and copied by HRS investigators., A random group of children's records was copied on the first trip to Dr. Beckum's office and a random group of adult patients' records was gathered, on a second visit. These records, which are in evidence as Petitioner's Exhibits 4A, 4B and 4C, were examined by Dr. ,Stephens, and, eventually, by Drs. Cherdack, Devine and Albert, served as volunteers on a peer review committed of the Florida Optometric Association.
MEDICAID FRAMES
Catherine Wright, mother of Shawn and Craig Wright and of Farnell and Preston Walker, sent her children to Dr. Beckum in the late '70s at the suggestion of school authorities. Each child received, eyeglasses under the medicaid program. Dr. Beckum told Ms. Wright that the medicaid program would cover the cost of some of the frames but not others. Two of her children chose frames Dr. Beckum told her Medicaid did not cover. On each occasion, Ms. Wright paid respondent's office seventeen dollars ($17.00). Ms. Wright understood she would not have incurred these charges if other frames had been selected; she just wanted to indulge her children by getting them the frames they picked out.
After Tracy Boykin started school, her mother to her to Dr. Beckum's office. Eyeglasses were prescribed, and Tracy tried on several frames. She was a medicaid recipient at the time of this visit, in the fall of 1980. None of the "medicaid frames" looked right because her face is real narrow and all the frames that she tried on was small. So, he had a row of frames up on the shelf [and Mrs. Phyllis Smith, Tracy's mother] picked a pair from up there," (T. 134 for which she paid respondent's office seventeen dollars ($17.00). On Tracy's chart appears the pithy comment: "THIN HEAD."
Sylvia Webb did not testify at hearing but on the basis of the parties' stipulation that she would have testified as Ms. Smith did, she is found to have paid Dr. Beckum seventeen dollars' ($17.00) for eyeglass frames for herself, while she was a medicaid recipient, some time between the fall of 1978 and the fall of 1980.
MEDICAID POLICY?
As an optometric consultant to HRS, Dr. Stephens has spoken to more than a hundred optometrists about medicaid policies. It is widely known among Florida's optometrists, he testified, that either "the patient pays for the glasses in their [entirety] or Medicaid pays for it, you cannot charge extra for tints or a special frame or anything of that nature." (T. 86)
Elaine Beckum, respondent's wife of 25 years, has worked, for the last five and one half years, as a receptionist at respondent's office. In 1978 or 1979 she spoke to somebody in a Gainesville HRS medicaid program office, "Ms. Uelsmann's office," (T. 150),who told her, she testified, that medicaid patients "are permitted extras [s]uch as tints, better frames, better lenses" and "that if patients wanted these "extras, that they could have them." (T. 150) It was Mrs. Uelsmann herself she talked to (T. 156) She contacted Mrs. Uelsmann; and Mrs. Uelsmann answered her questions [if she's] not mistaken, if [she] remember[s] correctly." (T. 157) She communicated the substance of this telephone call to Dr. Beckum.
Why Mrs. Beckum telephoned Mrs. Uelsmann is not clear from the record, because Sylvia Jones, who worked as respondent's receptionist and secretary/bookkeeper, before she left in 1977, had already called Mrs. Uelsmann, at respondent's behest, and inquired about "extras." She was advised that time that the patient could pay a difference and get a different type of frames, if they so chose" (T. 304) which advice she related to respondent.
MINIMUM PROCEDURES
Rule 21Q-3.07, Florida Administrative Code, took effect on November 13, 1979, and prescribed the following minimum procedures for a vision analysis:
Complete case history (recorded);
Unaided visual acuity, and acuity with present correction, if any;
External examination including cover test and visual field testing (confrontation or other);
Ophthalmoscopic examination (direct or indirect) including a study of the media, fundus, blood vessels, cup disc ratio.
Biomicroscopy (binocular or monocular);
Static retinoscopy or other objective refraction;
Test for binocularity;
Subjective refraction with recorded visual acuity;
Tonometry;
Other tests and procedures that may be indicated by case history or objective signs and symptoms discovered during the eye examination;
Diagnosis and treatment. Joint Exhibit No. 1.
At all pertinent times, even before adoption of the rule, there were minimum standards of prevailing and generally accepted optometric practice. These standards obtained throughout Florida and have not changed significantly in the last four or five years.
Just as vision screening with snellen letters entails certain minimal steps, so an optometrist's vision analysis, which is considerably more comprehensive, consists of certain procedures at a minimum. At all pertinent times, generally accepted and prevailing minimum procedures included all those now codified in Rule 21Q-3,07, Florida Administrative Code, except for tonometry on persons younger than 35 years old and visual field testing. The better practice has always been to record the results of every procedure, but not all practitioners did this before the recent amendment to Rule 21Q3.07, Florida Administrative Code, effective April 24, 1980. Generally accepted and prevailing standards of practice have always required recordation, however, of significant or pertinent findings.
Members of the Florida Optometric Association's peer review committee asked respondent why so many of his patients' records were devoid of the results of testing required by generally accepted and prevailing standards and, more recently, by formal administrative rule, as well.
Dr. Beckum responded that he was familiar with Florida's Optometric Statutes and Rules concerning minimal examination procedures
and the necessity for recording their results. Be said he had conducted more of these tests than were recorded, but just had failed to notate it on his records. He also stated that many
of the required tests could not be done due to the lack of maturity of the children involved. However he failed to record this reason on his exam record. Dr. Beckum further
.explained that in his philosophy of testing, some of the State's mandated tests were unnecessary (and not done) in order for him to do an adequate examination. Exhibit/ Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7.
By his own admission, to the committee, respondent has failed to perform some of the minimum procedures required by Rule 21Q-3.07, Florida Administrative Code, and has failed to record the results of others. The patients' records, as to which these admissions relate, are in evidence as attachments to Petitioner's Exhibits Nos. 6. and 7. Among these records are several examinations that took place after April of 1980.
Drs. Albert, Cherdack and Devine were three of the five members of the peer review committee which, as a whole, examined 146 patient records from Dr. Beckum's office and concluded:
There was no justified excuse for the lack of recording, in so many cases, the minimum test results, required by the State of Florida. Neglect, or negligence is not a good reason.
There was no valid reason given to
us for not doing the minimal tests required by the State. Exhibit/Attachment
No. 2 to Petitioner's Exhibit Nos. 6 and 7.
In these respects, the peer review committee's findings are adopted, without qualification. Of the more than 100 patient records prepared by Dr. Beckum that he reviewed, Dr. James Stephens could not remember a single one on which all the test results that generally accepted and prevailing minimum procedures would have yielded were recorded. Nor was there any record of a reason for not recording these results. The overwhelming majority of these records were made in or after January of 1979 and in or before March of 1981. Some were later than April of 1980. Dr. Stephens did not review the records specifically in order to determine compliance with minimum visual analysis procedures, however. He was not on the peer review committee; he reviewed the records, as a medicaid consultant, for possible fraud and abuse.
CASE IN POINT
Dr. Beckum saw six year old Tony Baker on February 9, 1981, and wrote down Tony's complaint: His eyes run water all the time. No other information was recorded under the heading "Ocular History." Even though respondent made no record of any near point testing, he prescribed low plus lenses (.25 for each eye) for Tony, and did so without making any, record of having performed the pathology examination that might have uncovered the reason that his eyes watered. The p1us .25 diopter prescription for the optic sphere in each lens would not have alleviated this problem:
[A] quarter of optic sphere in each eye would not prevent a patient's eyes from running water
There was no slitlamp testing done
here, nothing recorded to show that there was a pathology exam done. The thing that concerns me more than whether the glasses were prescribed, which is important, especially to Medicaid when the taxpayers are funding the money,
is the lack of pathology testing done. You might have a kid that had some kind of problem that wasn't uncovered.
You are not going to harm him by putting on glasses that he does not need. He will lose them or something. But the lack of
pathology testing [or at least recordation] does concern me. Deposition of Dr.
Stephens, pp. 689.
Among others whose visual analysis examinations were performed by Dr. Beckum, but whose examinations did not comport with prevailing and generally accepted minimum requirements, were Kenja Brooks, Carla Michelle Dallas, Eva Mae Dawson, Donia Durden, Twana Evans, Dorothy Jerisesha Farr, Roosevelt Forbes, Sharon Futch, Simeon Griffin, Delores Harrel, Laura Spates, Geneva Tart, Curtis Thorp, Vera Wilson, Elnora Wright, Nicole Young, Andrew Daniels, Christine Neddo, Stephen Cook, Stacey Thomas and Dorothy A. Strickland.
LOW, LOW, LOW POWER
Respondent has prescribed "low plus" lenses for his own family and for numerous patients, children and adults, including a Joyce Courtney, who came to him in 1973 complaining of difficulty focussing on objects 30 to 40 feet away and who felt that Dr. Beckum resolved her problem by prescribing low plus lenses. A "low plus" lens has an optical sphere of less than one half /1 diopter. A diopter is a unit of the refractive or "focussing" power of a lens. Unlike many optometrists, Dr. Beckum subscribes to the views on stress relieving, low plus lenses held by the OEP of which he was once a member.
Optometrists who share these beliefs, like Dr. O.C. Clarke, think low plus lenses should be prescribed for a "number of possible reasons, most of which you will find in near point vision care [and that] low plus lenses reduce the stress of the near-point task." (T. 195) Among the possible indications of a child's need for low plus lenses, according to is the school of optometry that holds there can ever be any need, are
when the child is unable to work at his desk for more than a short period of time without becoming restless or fidgety. He may become tense or may work too close to his page; he may turn or cock his head to view the page.
He may frequently stare off into space or look out the window. may eyes lid or the conjunctivia may appear reddened. If asked about his vision he may report that the print runs together or blurs after he has been reading for a short time, so that he cannot copy from the blackboard to his desk. Headaches may
also be an indication. Sometimes there are
no specific symptoms other than the fact that he is a bright child but just getting by in school. Respondent's Exhibit No. 3
But in Developmental Lenses for Children by Richard J. ApeIl, O. D., Respondent's Exhibit No. 3, the author states:
Developmental [low plus] lenses are, of course, no panacea for the myriad of visual problems that we find among, school aged children.
What are the symptoms that indicate
a real need for developmental glasses?
It is plain that distance vision is no criterion.
Respondent's Exhibit No. 3.
Low plus lenses have been advocated since the 1940s. The advocates claim that a prescription for low plus lenses is justified by symptoms of accommodative stress in reading or other near point tasks, but not otherwise.
20 Optometrists who doubt the efficacy of low plus lenses are unlikely ever to prescribe a lens of less than one half diopter. These skeptics, who are in the majority, view such low powered lenses as almost the same as window
glass. They point out that prescription errors of a quarter diopter are routinely overlooked, and that a lens of less than one half diopter (a "low- plus" lens) has no measurable effect on visual acuity. Such lenses could be called "low, low, low power," Dr. Stephens testified.
Medicaid pays optometrists $25 for examining eligible patients and an additional $7.00 for dispensing eyeglasses. Optometrists like Dr. Beckum who provide the frames get an additional $18.25 for "single vision" eyeglasses and
$20.50 for bifocals, about half of which is profit.
Dr. Donald Albert, who testified for petitioner on deposition, examined numerous (at least 20) records of examinations Dr. Beckum had prepared. He was amazed at the number of low power prescriptions he saw. On no patient's chart he saw was there a recorded visual acuity with the aid of the low power prescription. " Deposition of Dr. Albert, p. 80.
The peer review committee found:
Dr. Beckum's examination techniques and prescribing procedures (the magnitude of extremely low power prescriptions)
are certainly outside the mainstream of current professional optometric philosophy and practice. This Committee believes that it is not necessarily wrong to be outside a mainstream, but if one is, he must certainly be able to defend this philosophy with complete research,
documentation and/or complete testing procedures as well as to provide comprehensive recorded follow up testing to justify or satisfy
a peer review and/or State Board Review, if he is not satisfying his State's minimum examination procedures.
We find that Dr. Beckum has not documented, explained or provided adequate follow up care to justify to this Committee his questionable examination and prescribing procedures which we believe have resulted in multiple cases of unnecessary eyeglasses being prescribed. However, our Committee does feel that Dr. Beckum honestly believes his techniques and prescriptions are correct and warranted.
Our Committee believes when dealing with claims in great numbers it is possible and probable for any doctor to have a small percentage of errors in
his billings as to amount and copayments; especially when dealing with third party claims as almost all third party carriers have different and sometimes conflicting rules and regulations on payments, co payments and covered items. However it is out of this Committee's expertise and
jurisdiction to deal with possible legal questions that arise concerning possibly nonvalid payments.
In accordance with the FOA Professional Standards Review, we recommend to the
Florida Department of Health and Rehabilitative Services, the following cou[r]ses of action
in this case.
Admonish Dr. Beckum in those areas of his misunderstanding and unintentional irregularities in the form of a reprimand.
Establish a prepayment review as a corrective/educational device. By this, we mean that if Dr. Beckum is to be allowed to continue seeing Medicaid patients, he must agree to perform and record all tests as required by the State and to evaluate his prescribing and prescriptions in a standard and acceptable manner. Dr. Beckum must
further agree to monthly submit copies of his examination records to the Medicaid Optometric Consultant (or this PSRO if payment should be granted. This
review procedure should be undertaken for a minimum of six months, at which time, termination of this review may be considered.
H.R.S. should have its own staff decide on repayment and/or other actions
regarding the eight records where recipients had made payment over and above the
Medicaid payment.
H.R.S. should have its own staff decide on repayment and/or other actions regarding the three recipients who did not receive eyeglasses for which Medicaid was billed.
Copies of this report and other pertinent data in this investigation should be sent
to the Department of Professional Regulation for this review. Exhibit/Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7.
The committee acknowledged that respondent's views on low plus lenses are "not necessarily wrong" because they are "outside a mainstream," but concluded that respondent prescribed eyeglasses that were unnecessary under any theory.
UNNECESSARY PRESCRIPTIONS
Dr. Beckum prescribed low plus (.37 for both eyes) lenses for Samuel Rochelle, Jr. after an eye examination in May of 1980 or January of 1981 in the
course of which he recorded unaided acuities at distance, a phoria finding, subjective refraction with recorded acuity and the results of a static retinoscopy, but made no record of any near-point testing, because none was done. Dr. Beckum, made no record of anything that would justify the glasses he prescribed to Samuel Rochelle, Jr. on any theory. Dr. Beckum also prescribed plus (.37 for both eyes) lenses for Tony M. Adkins, a fifth grader, after an examination in November of 1978 or January of 1980 during which various findings were recorded, but nothing that would explain or justify, on any theory, the controversial prescription which Dr. Beckum wrote and Medicaid filled for Tony
M. Adkins.
In February of 1980, Dr. Beckum prescribed low plus (.25 for both eyes) lenses for 10 year old Joyce E. Rochelle for reasons the record of her examination does not reveal. No near point testing results were recorded either in February or in November of the same year, when Dr. Beckum wrote another low plus prescription (.37 in each eye) for the same child. The patient's record contains nothing to justify or explain, on any theory, the first prescription, the second prescription or the reason for the change.
Each of Dr. Beckum's patient records is a form complete with possible symptoms printed on it, for circling, to facilitate the taking of a patient's history. Among those symptoms printed on the form are "Headaches," "Eyes: Ache, Tire," "Blur," "Pains)" "Nausea," and "Nervous." None of these symptoms was circled on the records of Joyce E. Rochelle, Tony M. Adkins, or Samuel Rochelle, Jr. The evidence did not establish that the prescriptions Dr. Beckum wrote for these children were warranted. They would only be justified if written "for the relief of accommodative spasm for subjective symptoms such as headache poor focussing ability, discomfort [and] tiredness of the eyes. Deposition of Joseph R. Devine, pp. 71-72.
Dr. Beckum prescribed low plus lenses (.37 in each eye) for Anthony Boykin, a kindergartner, on August 18 or October 5, 1978, and again on November 20, 1979. No history whatsoever appears on this patient's records after August 18, 1980, and there is no record of any near point testing at any time. Similarly Dr. Beckum twice prescribed low plus lenses (.37 in both eyes) for Tracy Boykin, once on October 5, 1978, when she was in first grade, and again on November 20, 1979, after she had broken her first pair of glasses, without recording any history or any near point testing or anything" else that would, on any theory, explain or justify the prescriptions.
There is no case history of any sort. There are no points of acuity before or after arriving at the prescription.
There is no health testing that is listed here; no corneal curvature measurement, no near point testing, no binocularity testing. Deposition of Leonard Cherdack, p. 52.
On March 10, 1980, Dr. Beckum prescribed low plus lenses (.25 for each eye) for Terri Lynn George and later the same year wrote a second, different prescription for low plus lenses (.37 for each eye) for Terri Lynn George. Again the patient's record is devoid of any finding or history that could, on any theory, explain or justify either the first or the second prescription, or account for the change: "No case history, no near point acuities, no health testing, no binocularity testing, no corneal reading," Deposition of Leonard ,Cherdack, p.
66 were recorded.
The records Dr. Beckum kept of his two examinations of David Matthew Dixon reveal nothing that could justify or explain, on any theory, the two different low plus lens prescriptions he wrote for this child. In August of 1978, he prescribed .37 for both eyes, but the prescription was changed to .25 for both eyes approximately a year later. "There is no case history. There is no near point acuity recorded. No health history recorded." Deposition of Leonard Cherdack, p. 88. Dr. Beckum wrote two low plus lens prescriptions (both were .25 for each eye) for David Eric Dixon but nothing in David's records would explain or justify these prescriptions.
Andrew Daniels saw respondent in February of 1979 and again about a year later. Both times Dr. Beckum prescribed low plus lenses (.25 for each eye), even though nothing in Andrew's records indicates the need for any prescription. He had "excellent distance acuity [20/15]." Deposition of Leonard Cherdack, p. 90. No patient history was recorded. "There is no near point acuity. No health testing no binocularity testing. There is no objective determination which shows nothing, no prescription. There is no subjective determination." Deposition of Leonard Cherdack, p. 90.
Dr. Beckum took downs David S. Cooper's complaint when he examined this 8year old on December 20, 1979. "I don't know if I see well," is the complete history recorded on David's chart. But, at the time of the examination, David's unaided visual acuity at distance was 20/15 for both eyes and 20/15 for each. Dr. Beckum nevertheless prescribed glasses (.25 for each eye) which, if they had any effect, could have reduced the unaided acuities at distance. On deposition, Dr. Cherdack testified, "He sees worse with this prescription than he saw before he came into the office p. 95. Dr. Cherdack had not examined David Cooper, however.
On March 11, 1981, Dr. Beckum saw Tonya Miller for the second time. When he had first seen her, on August 8, 1979 he had written a low plus (.25 for the right, .50 for the left) lens prescription which Dr. Stephens described as "questionable." Dr. Beckum prescribed new low plus (.25 for each eye) eyeglasses for Tonja Miller in March of 1981 even though her unaided acuities at distance were better than normal, viz., 20/15. Her complaint, which Dr. Beckum recorded, was "I can't see too good," but "when a patient is seeing 20/15 ths, then they are seeing good." Deposition of Dr. Stephens, p. 57. Nothing in Tonya Miller's records justifies or explains, on any theory, the prescription respondent wrote and filled for her on March 11, 1981.
In scores of other cases, as well, respondent prescribed low plus eyeglasses for medicaid recipients and others who did not need them, including Tabetha Ann Evans, Betilda Gwenethe George, Andrew Daniels, Stephen Cook, Tammy Richardson and Melinda Cooper.
CONCLUSIONS OF LAW
At the beginning of the hearing and even earlier, in his motion for continuance or for reconsideration, which was denied by order entered March 7, 1983, respondent urged a continuance of the final hearing to allow the Board of Optometry to take up the order granting motion to dismiss in part. Such a procedure has since been sanctioned by judicial decision. Boedy v. Department of Professional Regulation, 428 So.2d 758 (Fla. 1st DCA 1983). To the extent the order granting motion to dismiss in part precluded prosecution (in these proceedings, without prejudice to the filing of another administrative complaint, after requisite probable cause panel proceedings), petitioner, but
not respondent, may have been A prejudiced by the failure of the Board of Optometry to consider the propriety of the dismissal without prejudice
To the extent the order granting motion to dismiss in part allows the prosecution to proceed under the present administrative complaint, any prejudice to respondent might be cured by the Board's acting on the order granting motion to dismiss in part, before considering the recommended order. At this juncture, at least, there is no reason to believe that the fairness of the proceedings or the correctness of agency action has been affected.
Petitioner is authorized to revoke or suspend an optometrist's license, impose an administrative fine up to $1,000 for each count of an administrative complaint or separate offense, issue a reprimand or place an optometrist on probation whenever an optometrist is guilty of any of the following acts:
(e) Making or filing a report of record which the licensee knows to
be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing, or inducing another person to do so. Such reports or records shall include only those which are signed by the licensee in his capacity as a licensed optometrist.
Fraud or deceit, negligence or incompetency, or misconduct in the practice of optometry.
A violation or repeated violations of provisions of this chapter, or of chapter 455, and any rules promulgated pursuant thereto.
Willfully submitting to any third party payor a claim for services which
were not provided to a patient.
Failing to keep written optometric records about the examinations, treatments, and prescriptions for patients.
Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party
Gross or repeated malpractice.
Section 463.016(1), Florida Statutes (1981).
All of these provisions were pleaded in the administrative complaint in the present case. The language in the 1981 statutes is identical, in all pertinent respects, to the provisions in force at all relevant times.
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the
discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d
201 (Fla. 1979). License revocation proceedings have been said to be "penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487,
491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).
At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).
Petitioner failed to meet this burden with respect to the gravamen of counts one, two and three, which allege that respondent billed Medicaid for services, including eyeglasses, for which medicaid recipients also paid. There was convincing proof that, in four instances, respondent did take money from the families of medicaid patients for eyeglass frames for which he also billed medicaid. But, with the possible exception of "thin headed" Tracy Boykin, each recipient's family was advised that eyeglasses mounted in other frames were available without charge to them.
But the proof of medicaid policy on selling medicaid patients "better" frames was not established clearly and convincingly. Petitioner's evidence on this point was Dr. Stephens' testimony which, although clear, was contradicted by respondent's witnesses. Dr. Stephens works as a consultant to the Department of Health and Rehabilitative Services but is not an employee. No written statement of medicaid policy is in the record. The precise wording of the policy was not established. Sylvia Jones' testimony that she told respondent frames could be sold to medicaid recipients was credible and credited, moreover.
Neither did petitioner meet its burden of proof with respect to the gravamen of counts four, five, six, seven, eight, nine and twelve. There was no proof that respondent failed to furnish eyeglasses to a medicaid recipient entitled to them, no proof of who referred whom where, and no proof of what medicaid policy required or respondent's agreement with the Department of Health and Rehabilitative Services called for, insofar as referrals.
In count ten of the administrative complaint, petitioner alleges that respondent is guilty of "failing to keep written optometric records of the examinations, treatments and prescriptions" for 68 medicaid patients for whom Dr. Beckum prescribed unnecessary eyeglasses. But Dr. Beckum did keep such records, the evidence showed. The records were inaccurate (incomplete) as to examinations, Dr. Beckum admitted to the peer review committee, but they were nevertheless kept.
UNNECESSARY PRESCRIPTIONS
The evidence showed that Dr. Beckum prescribed eyeglasses on numerous occasions for numerous persons for no good reason. There is no optometric justification for low plus lenses for anybody who has never undergone testing at near point and who has not experienced headaches, blurring of vision or any of the other subjective symptoms that some optometrists believe low plus lenses can allay. The patients' histories (where anything has been recorded) make no mention of symptoms that might justify low plus lenses, and there is no record of any near point testing. Dr. Beckum took the stand as a witness but never
testified, with respect to the first patient, that he had done testing at near point that was not recorded or that he had elicited pertinent symptoms that indicated low plus lenses, but not noted them on the record. Nor is such a scenario plausible, in light of the evidence. Many optometrists believe dispensing 1low plus lenses is quackery, at best. An optometrist persuaded to the contrary who elicited symptoms or performed tests that supported, in his view, prescribing low plus lenses could almost certainly be counted on to make note of it on a patient's record, especially where the record was otherwise devoid of any indication, under any theory, that low plus lenses were appropriate.
Efforts to paint respondent as a modern day Galileo fell far short of the mark. There is much in the record about different optometrists' views on the efficacy of low plus lenses as treatment for accommodative stress attendant on near point tasks. There is nothing in the record that suggests that the eyeglasses that Dr. Beckum prescribed for the children named in the findings of fact, among others, had any optometric justification. Assuming the validity of the low plus theories, not one of them would justify or explain Dr. Beckum's prescriptions for the named children (and others) on the basis of the records Dr. Beckum made. With respect to the children named in the findings of fact, no witness, not even Dr. Beckum himself, testified that the prescriptions were warranted. The evidence was all the other way, and conclusively established multiple instances of unnecessary prescriptions for eyeglasses.
Petitioner established the allegations of count eleven that respondent, in prescribing eyeglasses unnecessarily, violated Section 463.016(1)(g), Florida Statutes (1982), in that he was guilty of "incompetency in the practice of optometry."
The inference is almost inescapable that respondent exploited patients "for financial gain of the licensee Section 463.016(1)(m), Florida Statutes (1981), as alleged in count thirteen. Why else prescribe so many unneeded eyeglasses? But three of the optometrists petitioner produced to testify against respondent endorsed the findings of the peer review committee, among which is a finding that respondent is sincerely misguided: "Dr. Beckum honestly believes his prescriptions are correct. Exhibit/Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7. Petitioner adduced the peer review committee report, which is inconsistent with the allegations of count thirteen of the administrative complaint; and has failed to prove count thirteen clearly and convincingly for that reason.
The allegations of counts fourteen and sixteen were clearly and convincingly established. The evidence leaves no doubt but that respondent was guilty of gross and repeated malpractice in violation of Section 463.016(1)(n), Florida Statutes (1981), as alleged in counts fifteen and sixteen.
MINIMUM STANDARDS NOT MET
The evidence overwhelmingly establishes that respondent repeatedly failed to record the results of the required procedures for visual analysis, in violation of Rule 21Q-3.07, Florida Administrative Code, after the amendment explicitly required recordation; and violated, a fortiori, Section 463.016(1) (h), Florida Statutes (1981). The failure of respondent to perform all the minimum tests required by sound practice and, when it became applicable, Rule 21Q-3.07, Florida Administrative Code, was clearly and convincingly established, even in cases where there was no impediment to performance of the prescribed procedures. Respondent's testimony to the effect that he invariably performed
each test has not been credited in light of his admission to the peer review committee that he did not. Petitioner established violations of Section 463.016(1)(h), Florida Statutes (1981) as alleged in count fifteen of the administrative complaint.
RECOMMENDED
Upon consideration of the foregoing, it is RECOMMENDED:
That petitioner suspend respondent's license for three years, and, thereafter, place him on probation for a period of five years on conditions that include the requirement that he practice under the supervision of another optometrist
DONE and ENTERED this 7th day of September, 1983, in Tallahassee, Florida.
ROBERT T. BENTON II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of September,1983.
ENDNOTE
1/ One of respondent's witnesses said, when asked if one diopter was "low power, that one diopter is "on the borderline of a low power." (T. 281) At one time, optometrists in the U.S. Air Force had a "minimum prescription" of three quarters diopter. Deposition of Albert, R. 76. Bausch & Lomb in Jacksonville had a plus three eighths diopter lens in stock until April of this year when Clarkdale, Inc. took the operation over. They still stock quarter diopter lenses, but have to grind a plus three eighths. Dr. Beckum is not the only optometrist who has ordered lenses of less than one half diopter.
COPIES FURNISHED:
Joseph W. Lawrence, II, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Stephen Marc Slepin, Esquire Paul Watson Lambert, Esquire 1114 East Park Avenue , Tallahassee, Florida 32301
Fred M. Roche, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA BOARD OF OPTOMETRY
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY,
Petitioner,
vs. CASE NO. 82-2136
JOHN T. BECKUM, O.D.,
917 West University Ave. Gainesville, Florida 32601
License #668
Respondent.
/
FINAL ORDER
Pursuant to notice and Chapter 120, Florida Statutes, this cause came before the Board of Optometry on October 7, 1983 for consideration of a Recommended Order issued September 7, 1983 by hearing officer Robert Benton, II, and the exceptions filed thereto by the parties. Upon consideration, the Board finds as follows: Exceptions to the Recommended Order were submitted timely by Respondent; Petitioner submitted a Response to Respondent's Exceptions. The twenty three exceptions submitted by Respondent are hereby rejected. In rejecting each of Respondent's exceptions, the Board relies on the specific grounds set forth in Petitioner's Response to Respondent's Exceptions. The Recommended Order entered in this case September 7, 1983, is adopted as the Board's Final Order. The penalty recommended by the hearing officer, suspension of Respondent's license for three years followed by a probation period of five years, is adopted by the Board as the penalty; however, the Board grants a stay of the penalty as follows:
The suspension is stayed pending final determination of any appellate proceedings taken in the Courts of the State of Florida;
The stay is applicable only if an appeal of this Final Order is pursued;
During the stay period, Respondent will be allowed to continue to practice optometry under the general supervision of an Optometrist practicing in
Alachua County who will submit monthly reports of Respondent's optometric practice during the stay period to the Board;
The optometrist selected by the Board to supervise Respondent is Richard
A. Griffin, O.D. license number 1225;
Upon receipt by the Board of adverse reports by Dr. Griffin concerning Respondent's Optometric practice, the Board may reconsider or lift the stay previously granted.
Pursuant to Chapter 120.68, Florida Statues and the Florida Rules of Appellate Procedure, this Order may be appealed within thirty (30) days of rendition.
DONE AND ORDERED this 10th day of December, 1983.
BOARD OF OPTOMETRY
By: Frank Alteri Chairman
cc: Joseph W. Lawrence, II, Esquire Steven M. Slepin, Esquire
| Issue Date | Proceedings |
|---|---|
| Oct. 23, 1990 | Final Order filed. |
| Sep. 07, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 10, 1983 | Agency Final Order | |
| Sep. 07, 1983 | Recommended Order | Respondent, an optometrist, has shown repeated failure to properly examine patients. Hearing Officer recommends a three-year suspension and five years probation. |
