STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0959

) RONALD L. ASKOWITZ, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 14, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

For Respondent: Rhea P. Grossman, Esquire

2710 Douglas Road

Miami, Florida 33133-2728 BACKGROUND

In an eighteen count amended administrative complaint filed on June 26, 1987 petitioner, Department of Professional Regulation, Board of Dentistry, has charged that respondent, Ronald B. Askowitz, a licensed dentist, had violated various provisions within Chapter 466, Florida Statutes (1985). /1 The complaint generally alleges that after treating sixteen patients in 1984 and 1985, respondent filed fraudulent Medicaid claims with the Department of Health and Rehabilitative Services for services not rendered to those patients. This resulted in respondent receiving around $3,412 in overpayments. According to the complaint, this constituted a violation of Subsections 466.028(1)(j), (1),

(n) and (u), Florida Statutes (1985). It is further alleged that respondent later pled nolo contendere to seventeen counts of public assistance fraud on October 17, 1986 which constituted a violation of Subsection 466.028(1)(c), Florida Statutes (1985).

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986). The matter was referred by petitioner to the Division of Administrative Hearings on March 5, 1987, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated March 23, 1987, and by mutual agreement of the parties, the final hearing was scheduled on July 14, 1987 in Miami, Florida.

At final hearing petitioner presented the testimony of respondent, Andrea

L. Chilton, a special investigator for the Auditor General, and Dr. Charles T. Kekich, an HRS dental consultant. It also offered petitioner's exhibits 1-5 which were received in evidence. Respondent testified on his own behalf and presented the testimony of Sanford Dernis, Dr. Samuel Ponco, Michael John Huggins, Paul William Cordsmeyer, Doris Flynn and Dr. Manual Higer.

The transcript of hearing was filed on August 3, 1987. Proposed findings of fact and conclusions of law were filed by respondent and petitioner on August

7 and 19, 1987, respectively. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

At issue is whether respondent's license as a dentist should be disciplined for the alleged violations set forth in the amended administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Ronald L. Askowitz, held dentist license number DN 0003884 issued by petitioner, Department of Professional Regulation, Board of Dentistry (DPR or the Board). Dr. Askowitz is a 1960 graduate of the Medical College of Virginia. Since 1965, he has practiced dentistry in the South Dade County area. Presently, he is engaged in the practice of general dentistry in Perrine, Florida.

   
   

2. When the events herein occurred in 1984 and 1985, respondent's practice consisted of approximately forty percent Medicaid patients and sixty percent private pay patients. In order to be reimbursed for providing services to Medicaid patients, Dr. Askowitz was required to obtain a Medicaid provider number from the State of Florida and to adhere to then existing regulations. Among other things, respondent had to submit a dental remittance voucher to the Department of Health and Rehabilitative Services (HRS) as a prerequisite to reimbursement. Respondent has conceded that he completed and signed all vouchers himself. After HRS reviewed the voucher, a check would be issued to respondent reimbursing him at the fixed Medicaid rate. 2/ On average, Dr. Askowitz received around $1,000 per month for treating Medicaid patients. He did not differentiate between Medicaid and private pay patients in terms of quality of care.

   
   

3. Because of unusually high billings for three surface amalgam restorations which exceeded the normal statewide range, the HRS computer "kicked out" respondent's name for further review by the Auditor General's Medicaid fraud unit. Thereafter, the billing records of thirty-one patients were picked at random and manually reviewed by the unit to ensure their accuracy. Eventually, this sample was reduced to seventeen files. Because of apparent irregularities in the files, an HRS dental consultant and two Medicaid special investigators visited each of the seventeen patients in the Miami area in August, 1985. The consultant performed an examination of the patients' teeth and compared the work he saw with the billings submitted by Dr. Askowitz to verify whether all billed work had actually been performed. Finding that many of the services for which respondent had been paid had not been performed, the consultant concluded that Dr. Askowitz had filed reports he knew to be false, that deceptive or untrue representations in the practice of dentistry had been made, that the patients had been financially exploited, and that respondent had engaged in fraud, deceit or misconduct in the practice of dentistry. Armed with

   the results of the unit's investigation, the State Attorney thereafter filed an information charging Dr. Askowitz with numerous counts of public assistance fraud. He was arrested on May 16, 1986. On October 17, 1986 respondent entered a plea of nolo contendere to seventeen counts of public assistance fraud.

   Adjudication was withheld and respondent was placed on five years' probation and required to provide 300 hours of community service. The probation term can be reduced to two years if all special conditions are met. In addition, Dr.

   Askowitz was required to make a voluntary $15,000 payment to the Medicaid Fraud Control Unit and a $20,000 payment to the Florida Medicaid Program.

   
   

4. After the plea was entered, petitioner initiated this proceeding charging respondent with various violations of Chapter 466, Florida Statutes (1985), all of which relate to his billings on sixteen Medicaid patients. In general terms, respondent submitted Medicaid bills for various services rendered on these patients (mainly surface fillings), but in actuality all such services had not been performed. A more complete analysis of these billings is found in petitioner's exhibits 3, 4 and 5 received in evidence. As a result of these claims, Dr. Askowitz received some $3,412 in overpayments during a ten month period. He has not denied his wrongdoing. It is noted, however, that Dr. Askowitz actually saw every patient in question, and that all work actually performed was necessary. In addition, there is no allegation or evidence that Dr. Askowitz performed any work in a negligent or shoddy manner. Finally, the parties have stipulated that there is no issue regarding respondent's competency.

   
   

5. At final hearing, respondent stated he was "frustrated" with HRS because he had not been paid for all of the services that he had rendered. Consequently, he filed these claims. He is now sorry he did so, and has paid a dear price for his misdeeds. He described the notoriety surrounding his arrest as having a devastating effect on his practice. Nonetheless, he still desires to continue his practice of dentistry. Indeed, Dr. Askowitz still operates an office, serving primarily patients from the middle and lower income classes. His Medicaid provider number has continued to remain valid, and he is the only dentist in the Perrine area who treats Medicaid patients. He has completed his

   community service hours by providing free dental care to residents of a drug and alcoholic treatment center. He has no prior disciplinary action against him over a career spanning some twenty-two years. Testimony by other dentists also established that respondent is highly regarded from a professional standpoint, and that he has done a creditable community service by treating numerous patients from the lower income stratum.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

7. The administrative complaint, as amended, charges respondent with violating the following provisions within Subsection 466.028(1), Florida Statutes (1985):

   
   

   1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

      (c) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which relates to the practice of

      dentistry or dental hygiene. Any plea of nolo contendere shall be considered a finding of guilt for purposes of this chapter.

      1. Making or filing a report 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 in the capacity as a licensee.

         1. Making deceptive, untrue, or fraudulent representations in the practice of dentistry.

      (n) Exercising influence on the patient or client such a manner as to exploit the patient or client for the financial gain of the licensee ...

      (u) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.

      (bb) The violation or the repeated viola- tion of this chapter, chapter 455, or any rule promulgated pursuant to chapter 455 or this chapter;

      
      

8. Counts I through XVI allege that respondent submitted bills for reimbursement for work not performed on sixteen patients. The evidence supports these allegations, and it is concluded that Dr. Askowitz filed a report which he knew to be false in violation of Subsection 466.028(1)(j), Florida Statutes (1985). Since the above conduct related to the practice of dentistry, he has also violated Subsection 466.028(1)(1), Florida Statutes (1985), by making an untrue representation in his practice. Similarly, he has exploited those patients for his financial gain in violation of Subsection 466.028(I)(n), Florida Statutes (1985). Lastly, he is guilty of fraud, deceit and misconduct in the practice of dentistry as proscribed by Subsection 466.028(1)(u), Florida Statutes (1985). Next, Count XNJII has been substantiated since it has been shown that respondent repeatedly violated a provision within Chapter 466 in contravention of Subsection 4C6.028(1)(bb), Florida Statutes (1985). The final count alleges that respondent violated Subsection 4o6.028(1)(c), Florida Statutes (1985) by having pled nolo contendere to a crime which relates to the practice of dentistry. Given Dr. Askowitz' plea in circuit court on October 17, 1986, this charge has also been proven.

   
   

9. Although the statutory violations herein are numerous, they resulted in improper payments totaling only $3,411. Respondent has repaid this amount, and he is obligated to make additional payments of $35,000. He is sorry for his deeds, and appears to be fully rehabilitated. More importantly, he provides a much-needed service to the Perrine area since he is the only dentist serving Medicaid patients, and any lengthy suspension would be a detriment to those persons in the community who need Medicaid dental services. Moreover, his competency is not in issue. Given these circumstances, an appropriate sanction is to place his license on probation for three years.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges, and that his

license be placed on probation for three years.

DONE AND ORDERED this 21st day of August, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1987.

ENDNOTES

1/ The original administrative complaint was filed on January 20, 1987, and contained seventeen counts. The amended complaint added a new count eighteen.

2/ In 1984 and 1985, Medicaid Paid $8, $16 and $24 for one, two and three or more surface amalgam restorations, respectively.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Rejected as being unnecessary.

2. Covered in finding of fact 1. 3-8. Covered in finding of fact 3.

1. Covered in footnote 1.

2. Covered in background.

11-12. Covered in finding of fact 2.

13. Rejected as being unnecessary.

14-31. Covered generally in finding of fact 4.

1. Rejected as being unnecessary.

2. Covered in finding of fact 4.

3. Rejected as being unnecessary.

4. Covered in finding of fact 5.

5. Covered in finding of fact 3.

6. Rejected as being unnecessary.

7. Rejected as being unnecessary.

8. Rejected as being unnecessary.

9. Covered in finding of fact 3.

10. Rejected as being unnecessary. 42-43. Covered in finding of fact 3.

Respondent:

(p) Covered as being repetitious to prior proposed findings.

COPIES FURNISHED:

Joel S. Fass, Esquire

626 Northeast 124th Street North Miami, Florida 33161

Rhea P. Grossman, Esquire 2710 Douglas Road

Miami, Florida 33133-2728

Ms. Pat Guilford Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750

Honorable Van B. Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Nancy M. Snurkowski, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 87-0959

LICENSE NUMBER: DN 0003884

RONALD L. ASKOWITZ, D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on April 23, Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit

1. in the case of Department of Professional Regulation vs. Ronald L. Askowitz, D.D.S., Case Number 87-0959. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Esquire. Respondent was present and was represented by Rhea P. Grossman, Esquire. Upon consideration of the Hearing Officer's Recommended Order, and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.

   
   

   FINDINGS OF FACT

   
   

   1. The Hearing Officer's Findings of Fact are approved and are incorporated herein by reference.

      
      

   2. There is competent, substantial evidence to support the Board's findings.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

   
   

2. The Rearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference.

   
   

3. There is competent, substantial evidence to support the Board's conclusions.

   
   

4. The Board hereby rejects the Hearing Officer's recommendation regarding penalty. The Board finds that the Hearing Officer's recommendation is inconsistent with the Board's disciplinary guidelines as set forth in Chapter

21G-13, Florida Administrative Code. The Board's guidelines, required by section 455.2273, Florida Statutes, to assure consistency in the imposition of discipline, provide that the Board shall impose a reprimand and an administrative fine not to exceed three thousand dollars for each count or offense. Rule 21G-13.005(1), Florida Administrative Code. Further, the guidelines provide that the Board shall impose suspension or revocation in cases of criminal conduct insurance fraud. Rule 21G-13.005(3)(d), Florida Administrative Code. Section 455.2273(3), Florida Statutes, permits the Board to depart from its guidelines only upon its specific finding of aggravating or mitigating circumstances. The record before the Board fails to reveal mitigating circumstances which would permit the Board's departure from its guidelines. Further, the record before the Board reveals circumstances upon which the Board is justified in departing from the Hearing Officer's recommendation regarding penalty. The Hearing Officer stated that [m]ore importantly, he [Respondent] provides a much needed service to the Perrine area since he is the only dentist serving Medicaid patients, and any lengthy suspension would be a deteriment to those persons in the community who need Medicaid dental services." (Recommended Order, page 9). The record reflects that the integrity of dentists treating Medicaid patients must be relied upon for the system to work, since the dentist his the only person equipped to assure that only work performed is claimed for payment. (Transcript of Formal Hearing, pages 160-161). The Hearing Officer's position that Respondent should be treated leniently because he provides dental services to Medicaid patients despite his proven lack of integrity in billing for these services in totally without merit. Respondent admitted his criminal culpability regarding some of the charges brought against him (Transcript of Formal Hearing, page 24), admitted that he had lied regarding work performed (Transcript of Formal Hearing, page 40), and stated that he had no reason to justify billing for services he had not performed (Transcript of Formal Hearing page 20). The Hearing Officer considered as mitigation Respondent's repayment of funds which he received fraudulently and his obligation to make additional substantial payments to the Florida Medicaid Program and the Medicaid Fraud Control Unit pursuant to the Court's order in Respondent's criminal case. The Hearing Officer failed to recognize the importance of the fact that investigation of Respondent's criminal conduct was limited to a random sample of his Medicaid billings resulting in examination of only seventeen patients out of approximately seven hundred Medicaid patients that he treated in 1984 and 1985. (Transcript of Formal Hearing, Pages 31, 42-43). Any doubt regarding the legitimacy of Respondent's billing was resolved in his favor during the investigation conducted by the Medicaid Fraud Control Unit. (Transcript of Formal Hearing, pages 62, 90, 92-93). During 1984 and 1985, Respondent billed approximately twelve thousand dollars to Medicaid of which approximately

$3,400.00 was the result of his overbilling. This fact was used in a formula to determine Respondent's payments to Medicaid. The amount he is obligated to pay represents a compromised figure reached by Respondent's attorney and the State Attorney's Office. (Transcript of Formal Hearing, pages 167, 176-177). Under the foregoing circumstances, Respondent's payment to Medicaid can hardly qualify as a mitigating factor.

The Hearing Officer also determined that Respondent "is sorry for his misdeeds, and appears to be fully rehabilitated." (Recommended Order, page 9). The record fails to support this statement. The only evidence relating to Respondent's rehabilitation is the testimony that he served five hundred hours of community service when only three hundred were required by the Court. (Transcript of Formal Hearing, pages 127-128). The record only reflects that the additional hours were to "finish up with all the kids from Dade and Broward

spectrum and I got to liking them very much. They were nice kids." (Transcript of Formal Hearing, page 173). This hardly constitutes evidence of rehabilitation.

As to Respondent's contrition, the record reflects this explanation for his acts: "I think I was just frustrated mentally because I wasn't paid for a lot of the services I performed." (Transcript of Formal Hearing, page 165). The only evidence of contrition is the following interchange between Respondent and his counsel:

Q. (Grossman) have you done everything that you feel was possible not only your friends and family and patients and the State of Florida know that you are sorry and apologize, have you done everything you could to rehabilitate yourself for what transpired between 1984 and 1985?

A. (Askowitz) Yes, I have.

(Transcript of Formal Hearing, page 168).

It should be noted that all other testimony which could be said to be presented in mitigation related to Respondent's reputation in the community and the quality of his dental work. Other than noted above, the record is devoid of evidence of Respondent's rehabilitation or contrition.

The Hearing Officer also considered as a mitigating circumstance that Respondent's competency as a dentist was not in issue. It can hardly be mitigation of an offense that Respondent did not commit other offenses which are not related to the charges against him. The Hearing Officer was correct in stating that competency was not in issue, but incorrect in using-that bare fact in mitigation. Based upon the foregoing, it is

ORDERED AND ADJUDGED that the Respondent violated Sections 466.028(1)(c),(j),(1),(n) and (u), Florida Statutes. Respondent is hereby REPRIMANDED and assessed an administrative fine of ten thousand dollars ($10,000.00) to be paid to the Board's Executive Director in payments of no less than two thousand dollars ($2,000.00) per year with the total amount satisfied no later than five years from the effective date of this order. Further, Respondent's license to practice dentistry is hereby SUSPENDED for a period of three months. At the conclusion of Respondent's period of suspension, he shall be placed on probation for a period of three years. As term and conditions of probation, Respondent shall not treat or undertake the treatment of patients receiving Medicaid or other public assistance in which some or all costs of treatment would be paid by any public entity. Further, Respondent shall perform fifty hours of community service by providing dental services without remuneration to indigent patients and shall successfully complete an ethics course at the university or college level which consists of 24 to 30 clock hours of instruction. This order becomes effective upon being filed with the Board Clerk.

The parties are hereby notified that they may appeal this order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty days of the date this order is filed.

DONE AND ORDERED this 5th day of July, 1988.

Robert T. Ferris, D.D.S., Ph.D. Chairman

Board of Dentistry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final order has been forwarded by Certified United States Mail this 13th day of July, 1988, to Ronald L. Askowitz, D.D.S., 9848 East Fern Street, Perrine, Florida 33157, and Rhea P. Grossman, Esquire, 2710 Douglas Road, Miami, Florida 33133-2728; and hand delivered to Nancy M. Snurkowski, Esquire, 130 North Monroe Street, Tallahassee, Florida 32399-0750.

WILLIAM H. BUCKHALT, C.P.M.

Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750

(904)488-6015

Docket for Case No: 87-000959

Orders for Case No: 87-000959