STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0777
)
NORMAN J. CLEMENT, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, this cause came on for formal hearing on April 10-11, 1990 in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Janine A. Bamping, Esquire
Department of Professional Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
For Respondent: No Appearance
STATEMENT OF THE ISSUE
Respondent dentist was charged in a twenty-eight count administrative complaint with violations of Subsections 466.028 (1)(c), (1)(j), (1)(l), (1)(n), (1)(u), and (1)(bb) F.S. with regard to twenty-six patients.
PRELIMINARY STATEMENT
Wherever appropriate and to the degree provided by law, the identity of bona fide patients and the confidentiality of their medical records has been protected, even to the substitution of initials for names when necessary.
The extensive prehearing discovery and motion practice which preceded formal hearing is adequately documented by pleadings and orders of record.
At formal hearing, Petitioner appeared through counsel and presented the oral testimony of G.J., Robert E. Youngblood, C.M.C., Frances Smith Davis,
G.W.W. Les Smith, R.J.G., V.W., M.A., Gary Watson, Joseph Cooper, Charles Thomas Kekich, and Tom Arnold. Petitioner had 34 exhibits admitted in evidence.
At Petitioner's request, official recognition has been taken of the Recommended and Final Orders in HRS v. Clement, DOAH Case No. 86-3023 (Recommended Order entered. May 7, 1987; Final Order entered May 19, 1987) and of the Final Judgment in State v. Clement, Leon County Circuit Court Case No. 86-2519.
Respondent did not appear at formal hearing. However, Respondent telephoned the office of the undersigned before formal hearing was convened so as to advise the undersigned that he would not be appearing. Immediately prior to formal hearing, Respondent also filed a "Unilateral Prehearing Statement and Request." This pleading was essentially an exculpatory statement combined with a motion to admit voluminous but mostly unspecified documents on Respondent's behalf at formal hearing. Petitioner orally moved to strike. Petitioner's oral motion to strike was, however, denied. Respondent's pleading was therefore permitted to stand, but subsequent to oral argument (TR 170-173), Respondent's pleading was denied upon its merits. Accordingly, Respondent did not appear and presented no case.
The transcript herein was filed on April 26, 1990. Petitioner had requested
30 days for filing post-hearing proposals, and each party was granted 20 days, to and until May 16, 1990, yet neither party availed himself of the opportunity to file proposed findings of fact and conclusions of law.
FINDINGS OF FACT
Although there is evidence (P-12) that Respondent's professional license expired on December 31, 1989, the superior and more credible Exhibit P- 11, which shows that Respondent is currently actively licensed through December 31, 1991 is accepted as fact. Upon the foregoing and all other relevant testimony and exhibits, it is found that Respondent is and has been at all times material hereto, a licensed dentist in the state of Florida, having been issued license number DN 0009810. Respondent's last known Florida address is 1617 Physician's Drive, Tallahassee, Florida 32368. At all times material to the Administrative Complaint, Respondent was an approved Medicaid provider, subject to that program's rules and contracts. Effective May 19, 1987, pursuant to the Recommended and Final Orders in HRS v. Clement, DOAH Case No. 86-3023, Respondent was terminated from the Medicaid program for inappropriate billing in nine identified areas, which areas all fall in the categories of excessive billing or billings which conflicted with HRS claims provisions.
Count I (M.C.)
C.M.C. is the mother of M.C. (DOB 2/18/81) and A.S. A.S. was treated by the Respondent but M.C. was never provided any dental services by the Respondent. On March 27, 1986, a search warrant was served on Respondent by the State Attorney, who was accompanied by an investigator from the office of the Auditor General, Fraud Control Unit, Mr. Robert E.. Youngblood. At that time, no dental records for M.C. were found. Hearsay materials gathered by Mr. Youngblood, who testified, and by his deputy investigators and by DPR investigators, who did not testify, suggest that Respondent had claimed on March 21, 1985 for $140.00 worth of dental services allegedly rendered to M.C. on February 11, 1985, for which Medicaid's processing agent remitted to Respondent
$75.00 for services which were never performed. However, no representative of the processing agent or its successor in interest was able to authenticate documentation that such claims were, in fact, made by Respondents and the supporting documentation for the investigators' summaries was likewise insufficiently authenticated, was uncorroborated, was presented without adequate
predicate, and is partly illegible. Therefore, it is found that the investigators' summaries of unauthenticated documents or documents without appropriate predicate to render them at least reasonably reliable by ordinary persons do not constitute such hearsay as will support a finding of fraudulent claim being filed by Respondent for dental services which were never rendered by Respondent to M.C. (See, P-1; TR 31, 44-46, 133-147, 156-160)
Counts II (T.S. #1) and III (T.S. #2)
M.S. is the mother or caregiver of several children, among them T.S. #1 (DOB 8/3/70) and T.S. #2 (DOB 3/14/67)
Respondent billed Medicaid for $185.00 and received $154.00 for dental work allegedly performed on T.S. #1 on December 13, 1984 and May 1, 1985. On March 27, 1986, a search warrant was served on Respondent by the State Attorney, who was accompanied by Mr. Youngblood. At that time no dental records for T.S. #1 were found. Respondent is required to provide dental records for each Medicaid patient, pursuant to the terms of his Medicaid contract. (P-2, P-3; TR 28-32, 59, 138-1.47, 156-160)
Respondent billed on January 10, 198.5 and was subsequently paid $80.00 by Medicaid on January 23, 1985 for services allegedly rendered to T.S. #2 on December 13, 1984.
Petitioner had admitted in evidence written statements of M.S. to the effect that neither T.S. #1 nor T.S. #2 was ever treated by Respondent, but neither M.S., T.S. #1, nor T.S. #2 appeared to testify, and the written hearsay statements are the only evidence of non-treatment. They corroborate, explain, or supplement no direct evidence of non-treatment and are therefore insufficient, pursuant to Section 120.58(1) F.S., to support a finding of fact that treatment of T.S. #1 and T.S. #2 by Respondent did not occur as claimed by the Respondent.
Count IV (V.W.)
[See also Counts XXV and XXVI]
M.A. is the grandmother of several children, including V.W. (male, DOB 10/15/73). Roberta J.G. is V.W.'s sister. The oral testimony of M.A. is clear that V.W. was not seen by Respondent before February 21, 1986. Roberta J.G. testified that she thought V.W. had his teeth cleaned by Respondent in October 1986, and V.W. testified that he thought this was done in February of an unknown year. By a validly served search warrant, V.W.'s dental record was seized from Respondent. This seized dental record shows the first date Respondent provided dental services to V.W. was on February 21, 1986. Petitioner's Medicaid processor witness, Mr. Joseph Cooper, was unable to authenticate other materials assembled by the investigators, which exhibits purport to show that Respondent billed Medicaid for $230.00 and received payment in the amount of $101.00 for services he allegedly rendered V.W. on October 30, 1985, four months before the Respondent's office record shows the services were actually performed upon V.W. (P-4; TR 133-147, 156-160) Absent authentication of the claims/remittances, the premature or fraudulent filing of a claim for V.W. has not been proven.
Counts V (M.T.) and VI (M.W.)
A.V. is the mother of two boys, Marcus T. (DOB 2/29/80) and Martalius
W. (DOB 4/6/67). A.V. testified by deposition (P-31) that Respondent pulled two of her teeth but never rendered any services to either of her children.
More specifically, A.V.'s unrefuted testimony was that Respondent did not treat Marcus T. on December 6, 1984 or do gum surgery on Martalius W. on December 15, 1984.
Due to the failure to authenticate the Medicaid records offered in support of the charges brought against Respondent under Count V for his alleged claims and receipt of Medicaid payments on behalf of Marcus T., those charges were not proven.
However, the competent, credible evidence of record supports a finding that on January 10, 1985 Respondent claimed and on January 23, 1985 Medicaid paid Respondent $80.00 for treatment of Martalius W.`s gums (gingival curettage), when, in fact, such a service had not been rendered by Respondent. Although the claim was made by the Respondent for treatment of "Martel" W., not "Martalius W.," it is found that they are one and the same person. It is also clear that on March 27, 1986, no required dental record for Martalius W. was found by investigators. Respondent's file for Martalius W. which was found contained a variety of records for a girl [first name: Matesha; last name same as Martalius W.; DOB 8/1/78]. Apparently that female child was treated by Respondent on February 1, 1985 and February 4, 1985 by two bite wing x-rays and by cleaning and fluoriding, respectively, not for gum disease. (P-5, P-6, P-31; TR 36-42, 133-147, 156-160)
Count VII (C.T.)
C.T. (DOB February 15, 1968) is the son of J.A.T. Although J.A.T. signed a statement for the DPR investigators, neither she nor C.T. testified. Therefore, there is only uncorroborated hearsay that Respondent never treated this child. The bills, claims, and payments allegedly made or received by Respondent were not authenticated at formal hearing by appropriate custodians of those documents and therefore fraud has not been proven. (P-7, TR 133-147, 156-
160) There is also no credible, competent evidence to support the allegation that the Respondent failed to keep medical records for this patient. (TR 42-43)
Counts VIII (D.L.) and IX (S.W.)
E.P. is the mother of D.L. (DOB 3/2/82) and S.W. (DOB 4/1/77). None of these persons testified. Therefore, there is no direct evidence of the allegations in Count VIII that D.L. and S.W. have never been seen by Respondent or of the allegation in Count IX that S.W. has not been seen by Respondent.
Credible, competent evidence of record does support a finding that Respondent was subsequently paid $77.00 by Medicaid, pursuant to Respondent's claim for $120.00 for dental services he asserted he had provided to D.L. on June 10, 1986 and that Respondent was paid $490.00 by Medicaid pursuant to Respondent's series of claims totalling $1,165.00 that he had rendered dental services to S.W. on August 3, 1985.
Mr. Youngblood testified that Respondent produced no medical records for S.W. upon DPR's "request" of January 29, 1986 (TR 49) and that none were found pursuant to a search warrant validly served on March 27, 1986.
Among the treatments of S.W. for which Medicaid paid Respondent was installation of six stainless steel crowns/caps at tooth sites A, B, I, J, K, and L on June 18, 1985 and July 4, 1985 when S.W. would have been approximately eight years old. As part of the Medicaid investigation, a consulting dentist
examined S.W. and found that stainless steel crowns/caps had, in fact, been installed on her teeth as indicated in the claim and payment records.
Upon the testimony of Frances Davis, an assistant to Dr. Sheppard, another local dentist, it is found that Dr. Sheppard installed six stainless steel crowns/caps on an "S.W." with the identical name and birth date but living at a different address from the "S.W." who is the subject patient of Count IX of the Administrative Complaint herein. The undersigned infers that both S.W.'s are one in the same. Dr. Sheppard installed crowns at S.W.'s teeth T, S, I, J, A, and B in 1981.
Dr. Kekich, who was accepted as an expert in dentistry, testified that it was his expert opinion that stainless steel crowns/caps installed in 1981 in a four-year-old child would not require replacing in 1985. (TR 148-151)
Upon the foregoing, it is found that Respondent did not install either new crowns/caps or replacement crowns/caps on S.W.'s A, B, I, and J teeth in 1985 but made a fraudulent claim for work associated therewith in a minimum amount of $440.00 for which Medicaid actually paid Respondent $172.00.
Counts X (T.J.), XI (A.J.), XII (C.J.), XIII (K.J.), and XIV (W.J.)
G.J. is the mother of T.J. (male, DOB 10/11/70), A.J. (male, DOB 8/19/73), C.J. (male, DOB 11/27/74), K.J. (female, DOB 9/1/77), and W.J. (male, DOB 6/25/72). According to G.J.'s unrefuted testimony, Respondent never provided any dental services to any of these children. (TR 15-17) With regard to A.J., there is credible, competent evidence to establish that Respondent claimed/billed for $165.00 and was subsequently paid $92.00 by Medicaid for dental services allegedly rendered to A.J. on June 6, 1985, which services were in fact never rendered by Respondent. With regard to C.J., there is credible, competent evidence to establish that Respondent claimed/billed for $105.00 and was subsequently paid $62.00 by Medicaid for dental services allegedly rendered to C.J. on June 6, 1985 which services were in fact never rendered by Respondent. With regard to K.J., there is credible, competent evidence to establish that Respondent claimed/billed for $105.00 and was subsequently paid
$62.00 by Medicaid for dental services allegedly rendered to K.J. on June 6, 1985, which services were in fact never rendered by Respondent. (P-15, P-16, P- 17; TR 142-146). With regard to W.J., the evidence supports a finding that Respondent made a claim for $105.00 in Medicaid monies, and it may be inferred that Medicaid paid $62.00 to Respondent for the nonexistent treatment. (P-18; TR 142-147, 156-160)
Lack of proper authentication of the Medicaid records offered in support of the allegations that Respondent fraudulently claimed and collected for dental work he never performed on T.J. renders those exhibits uncorroborated hearsay incapable of sustaining a finding of fraud as fact. (TR 142-147, 156- 160)
No competent evidence was presented to support the allegations contained in Count X paragraph 58, Count XI paragraph 64, Count XII paragraph 70, Count XIII paragraph 76, or Count XIV paragraph 82 which pertain to Respondent's inability to produce records for each of the foregoing five children.
Count XV (C.C.)
Respondent billed and was subsequently paid by Medicaid for dental services allegedly rendered to C.C. (adult, DOB 12/7/55) on or about September 14, 1985. There is no direct, credible, competent evidence of record to prove that C.C. did not receive dental services from the Respondent or that Respondent was requested to produce or failed to produce dental records for C.C. as alleged in the Administrative Complaint. (P-19; TR 137-148, 156-160)
Count XVI (L.S.)
Respondent billed and was subsequently paid by Medicaid for dental services allegedly rendered to L.S. (adult, DOB 9/28/51) on or about September 11, 1985. There is no direct, credible, competent evidence of record to prove that L.S. did not receive dental services from the Respondent or that Respondent failed to produce a dental record in response to a request from an investigator. In fact, the evidence of Mr. Youngblood, sketchy as it is, suggests that at some unspecified point in time, checks and some dental records were produced to some other investigator by the Respondent's wife, acting as Respondent's office manager. (P-20; TR 69-71, 137-147, 156-160)
Count XVII (C.F. Jr.)
D.D. is the mother of C.F. Jr. (DOB 5/24/82). Respondent billed and was subsequently paid by Medicaid for dental services allegedly rendered to C.F. Jr. There is no direct, credible, competent evidence of record to prove that
C.F. Jr. did not receive dental services from Respondent or that Respondent was requested to produce or failed to produce dental records for C.F. Jr. as alleged in the Administrative Complaint. (P-21; TR 137-147, 156-160)
Counts XVIII (D.W.) and XIX (G.W.)
G.W., a/k/a G.W.W., (DOB 9/10/58) is the mother of D.W. (male, DOB 1/5/84). Pursuant to G.W.'s unrefuted testimony, neither she nor her son, D.W., was ever treated by Respondent. At formal hearing, Joseph Cooper testified to authenticate Exhibit P-22, the records purporting to refer to D.W. Mr. Cooper based his testimony upon his prior certification and signature appearing on Exhibit P-22 in red. (TR 22) However, no such signed certification by Mr. Cooper actually appears on any paper within that file except for one claim therein. Concomitantly, Mr. Cooper could not orally authenticate as Medicaid business records those documents which purported to refer to G.W. (P-23), presumably because they bore no such prior red certification stamp executed by him (TR 142-147, 156-160), and yet Exhibit P-23 actually bears Mr. Cooper's prior certification in all material respects. Despite the tenuous predicate for the admissibility of these records/exhibits, the undersigned infers that in his testimony, Mr. Cooper really meant to identify Exhibit P-23, and, accordingly, Exhibit P-23 as to G.W. is found to establish that Respondent billed $55.00 and was subsequently paid $21.85 by Medicaid for dental services allegedly rendered to G.W. on June 20, 1985 and June 24, 1985, which services were in fact never rendered by Respondent, but finds the evidence insufficient to establish any of the remaining allegations of Counts XVIII and XIX.
Counts XX (T.R.), XXI (S.R.), and XXII (D.R.)
M.R. is the mother of T.R. (DOB 12/20/77), S.R. (DOB 1/7/75), and D.R. (DOB 2/16/72). It was Petitioner's contention that Respondent claimed and collected for dental work on all three of the children when such work could not
have occurred because they had moved to Tampa. Investigator Youngblood found the family living in Tampa, Florida, but only uncorroborated hearsay exists within this record to suggest on what date the family moved away from Tallahassee, Florida, and away from Respondent's dental care. There is no direct, credible, competent evidence of record to prove that claims were made or monies were received by Respondent with respect to T.R. and S.R.; however, clear and convincing direct evidence of record shows that Respondent billed $305.00 and was subsequently paid $152.00 by Medicaid for dental services allegedly rendered to D.R. on July 2, 1985. Mr. Youngblood testified that his investigative files contained dental charts/records on each of the children and that these charts/records showed the last treatment rendered to D.R. by Respondent had occurred on September 20, 1984, but it was not demonstrated how Investigator Youngblood got these charts. Nor could it be shown that there were not other charts which would justify the later treatment. While it is not necessary for Petitioner to prove a negative-positive premise, there is still an insufficient nexus to establish a fraudulent claim here.
Count XXIII (M.H.)
P.H. is the mother' of M.H. (DOB 12/23/84). Although the undersigned can deduce from the competent, credible evidence as a whole that M.H. wad approximately one year old on December 12, 1985, since neither P.H. nor M.H. testified, there is no direct evidence to support the allegation that M.H. did not receive services from Respondent on December 12, 1985 due to her tender year(s). Lack of authentication of the Medicaid records offered in support of the allegations rendered those exhibits uncorroborated hearsay incapable of sustaining a finding of fraud in billing/claiming/receiving Medicaid monies for services not rendered as fact. On March 27, 1986 in the course of executing a valid search warrant, investigators found no records for this child in Respondent's office. (P-27; TR 85-87, 146, 156-160)
Count XXIV (T.M.)
V.F. is the mother of T.M. (DOB 6/23/69). Neither of these persons testified, so there is no direct evidence of the allegation that T.M. had not been rendered dental services by the Respondent. There is, however, competent, credible evidence to establish that Respondent billed and was subsequently paid by Medicaid for dental services allegedly rendered to T.M. on May 5, 1985 and May 10, 1985. No evidence was presented to support the allegations which pertain to Respondent's inability to produce a dental record for T.M. (P-28; TR 88, 146, 156-160).
Count XXV (R.G.)
Count XXV of the Administrative Complaint put Respondent on notice of charges involving one R.G., without specifying R.G.'s gender or birth date. That count of the Administrative Complaint reads in toto as follows:
Petitioner realleges and incorporates by reference those allegations contained in the foregoing paragraphs.
Respondent billed and was subsequently paid by Medicaid foil dental services allegedly rendered to R.G. on or about November 25, 1985 and December 6, 1985.
On or about March 1986, a request for dental records of R.G. was issued to the
Respondent by the Medicaid Fraud Control Unit. The Respondent produced a dental record for R.G. which showed the first date of service was on or about February 21, 1986.
The Respondent billed Medicaid for
$185.00 and received $128.00 This resulted in the overpayment by Medicaid of $128.00 for services not rendered.
Based on the foregoing, Respondent has violated the following statutory provisions:
Section 466.028(1)(j), Florida Statutes (1985), by filing a report which the licensee knows to be false;
Section 466.028(1)(l), Florida Statues (1985), by making deceptive, untrue, or fraudulent representations in the practice of dentistry;
Section 466.028(1)(n), Florida Statutes (1985), by exploiting the patient for the financial gain of the licensee; and
Section 466.028(1)(u), Florida Statutes (1985), by being guilty of fraud, deceit or misconduct in the practice of dentistry.
At formal hearing, Investigator Youngblood testified from materials which in part referred to a male "Robert G." His testimony attempted to draw the inference there from that Respondent had billed Medicaid for services performed on November 25, 1985 and December 6, 1985 on a male "Robert G.," but had submitted the bill/claim under the Medicaid number registered for "Roberta G." (female, DOB 11/11/70), a/k/a "Roberta J.G.," that Respondent's dental records which Mr. Youngblood seized by search warrant on March 27, 1986 referred to the specified female as "Roberta J.G." but not to any male "Robert G." and that Respondent's records further showed Respondent's Medicaid claim form dated February 21, 1986 related Respondent's first date of service to "Roberta J.G." as January 21, 1986, several months after Respondent made his claim. (TR 89-90)
M.A. is the grandmother of Roberta G., a/k/a Roberta J.G., (female, DOB 11/11/70) and of V.W. (male, DOB 10/15/73). See, Count IV, FOF 7, supra. The oral testimony of M.A. is that Roberta J.G., a/k/a Roberta G., first saw Respondent professionally on February 21, 1986. Roberta J.G., a/k/a Roberta G., testified that she thought she had her teeth cleaned by the Respondent in October 1986 and had never seen him before that date. Petitioner's Medicaid processor witness was unable to authenticate the Medicaid claim and payment materials in Mr. Youngblood's investigative file for "Robert G." submitted and paid under "Roberta J.G.'s" Medicaid number (P-30), and absent such authentication, the fraudulent or even the premature filing of a claim by Respondent has not been proved. (TR 137-147, 156-160)
Count XXVI (K.A.)
M.A., the grandmother of V.W. [see, Count IV] and Roberta J.G. [see, Count XXV] is also the mother of K.A. This is not to suggest that K.A. (female, DOB 11/17/65), who is the subject of this Count, gave birth to either V.W. when
K.A. was eight years old or to Roberta J.G. when K.A. was five years old. This is a "blended" family of several generations which sometimes lives together and
sometimes does not. At all material times, K.A. lived with M.A. The oral testimony of M.A. (TR 125-129) and the testimony by deposition of K.A. (female, DOB 11/17/65) (P-34) is unequivocal and unrefuted that K.A. has never been treated by Respondent. The contents of the investigator's file (P-29) containing claims and payment records was not authenticated by the Medicaid processor witness, and therefore the allegations of fraudulent claim and collection of Medicaid payments by Respondent have not been proved by direct, credible, competent evidence. (TR 137-147, 156-160)
Count XXVII
Pursuant to the foregoing, Petitioner has shown repeated violations of Chapter 466 F.S. so as to discipline under Section 466.028(1)(bb) F.S., but there is no clear and convincing evidence that Respondent failed to comply with a lawfully issued subpoena of the Board of Dentistry or the Department of Professional Regulation.
Count XXVIII
On October 6, 1987, the Respondent pled nolo contendere to the third degree felony "medicaid fraud," pursuant to Section 409.325 F.S. and to "grand theft," pursuant to Section 812.014 F.S. He was adjudicated guilty in State v. Clement, Leon County Circuit Court Case No. 86-2519, of the foregoing crimes and fined. Costs were assessed. However, Respondent's sentence was stayed and withheld pending successful completion of five years' probation on each count to run concurrently. His probation included paying restitution of $2,498.55. Although DPR counsel acknowledged that an appeal of his conviction had been filed by Respondent, there is no evidence of record that the foregoing judgment has been reversed, remanded, or otherwise altered
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
The burden of proof in this type of proceeding which DPR must meet is "by clear and convincing evidence." Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
The operative statutes provide as follows:
Grounds foil disciplinary action; action by the board.--
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. And plea of nolo contendere shall be considered a finding of guilt for purposes of this chapter.
* *. *
(j) Making or filing a report which the licensee knows to be false, failing to file a report or record required by state or federal
law, knowingly 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.
* * *
(l) Making deceptive, untrue, or fraudulent representations in the practice of dentistry.
* * *
(n) Exercising influence on the patient or client in such a manner as to exploit the patient or client for the financial gain of the licensee or of a third party, which includes, but is not limited to, the promotion or sale of services, goods, appliances, or drugs and the promoting or advertising on any prescription form of a community pharmacy unless the form also states: "This prescription may be filled at any pharmacy of your choice." Paying or receiving any commission, bonus, kickback, or rebate; or engaging in any split-fee arrangement in any form whatsoever with a dentist, organization, agency, or person, either directly or indirectly,
referred to providers of health (are goods and services, including, but not limited to, dentists, hospitals, nursing homes, clinical
laboratories, ambulatory surgical center's, or pharmacies. The provisions of this paragraph shall not be construed to prevent a dentist from receiving a fee for professional consultation services.
* * *
(u) Fraud, deceit, or misconduct in the practice of dentistry or dental hygiene.
* * *
(bb) The violation or the repeated violation of this, chapter 455, or
any rule promulgated pursuant to chapter 455 or this chapter; the violation of a lawful order of the board or department previously entered in a disciplinary hearing; or failure to comply with a lawfully issued subpoena of the board or department.
Considering the evidence adduced at formal hearing, it might have been more prudent for DPR to have included in its Administrative Complaint charges under Section 466.028(1)(m) F.S. governing failure to keep adequate written dental records and medical history records, but even so, most of the evidence on the issue of absence of supporting medical records was flawed in that testimony showed only that the State Attorney and/or a DPR investigator and/or an HRS investigator and/or an investigator for the Auditor General failed to find certain records when they searched Respondent's premises, pursuant to a criminal search warrant on a single day. With regard to proving a violation of "failure to comply with a lawfully issued subpoena of the board or department," an
unsuccessful search by a State Attorney and the Auditor General's investigator presents an entirely different legal procedure and physical process than that contemplated by Section 466.028(1)(bb), which refers to a lawfully issued subpoena of the Board of Dentistry or the Department of Professional Regulation. [Emphasis supplied] A "request," occasionally testified to by Mr. Youngblood, is not even cognizable under this statute. Nonetheless, Respondent's other repeated violations of the Chapter have established a violation of Section 466.028(1)(bb) F.S..
The prosecution's and principal witness' demeanor at formal hearing suggested that each of them believed all elements of the violations charged could be proven simply by Mr. Youngblood's reading summaries of his own and other persons' collected papers, or that anything bearing the Respondent's name or provider number constituted an "admission" of the Respondent. These concepts, if they existed, are simply wrong, as is the prosecution's apparent belief that unsworn or sworn statements obtained from persons who never appeared to testify could somehow be utilized under Section 120.58(1) F.S. to establish a material fact necessary to "prove up" an allegation of that same material fact without any other direct evidence. There are specific preliminary procedures by which the agency can establish the authenticity of underlying documents and the admissibility of summaries derived therefrom. See, 90.956 F.S. DPR did not follow that procedure here, and as related in the findings of fact, supra., often no underlying documentation was presented or the underlying documents were not authenticated by direct testimony of an appropriate witness. If all the Medicaid documents could have been authenticated as a business record of the HRS Medicaid processor or if there had been clear and convincing evidence that most of these documents were seized from, or provided by, the Respondent under some theory that might uphold admissibility of an "admission," the findings of fact and conclusions of law of this recommended order might be significantly different. However, where none of the foregoing routes was fully accomplished so as to permit consideration of hearsay materials arriving through the conduit of an agency investigator, they could not be utilized for further or different findings of fact than those found supra.
Under the circumstances of this case, the contractual obligation and the special position of the Respondent to know the truth or falsity of his claims permits the conclusion of fraudulent intent. See, 27 Fla. Jur. 2d Section 48. False claims constitute "false reports" under Section 466.028(1)(j)
F.S. See, DPR (Bd. of Dentistry) v. Swain, DOAH Case No. 88-2961 (Recommended Order entered February 24, 1989). Medicaid fraud has been found to fall within the purview of the statutory phrase "in the practice of dentistry." See, DPR Bd. of Dentistry) v. Swain, supra., and, by analogy, DPR (Board of Medicine) v. Hooshmand, DOAH Case No. 88-2270 (Recommended Order entered March 3, 1989). However, fraudulent claims against Medicaid are more akin to "exploiting the insurer" than they are to "exploitation of the patient" as defined in Section 466.028(1)(n) F.S. Also, in this instant case, it has not always been clear whether patients', patients' children's, or non-patients' Medicaid entitlement has been exploited for Respondent's financial gain. Therefore, despite the holding in DPR (Bd. of Dentistry) v. Swain, supra., it cannot be concluded here that Respondent has exploited patients. That case is distinguished from the instant one in part because in Swain the Respondent was falsely claiming against the Medicaid provider while illicitly receiving
co-payments from patients.
Accordingly, Petitioner has proven by clear and convincing evidence, the Respondent's violation of the following statutory prohibitions, by Count:
Count VI (M.W.): Section 466.028(1)(j), filing a report which the licensee knows to be false; Section 466.C28(1)(1), making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(u), fraud, deceit or misconduct in the practice of dentistry.
Count IX (S.W.): Section 466.0128(1)(j), (1)(l), (1)(u)
Count XI (A.J.): Section 466.028(1)(j), (1)(l), (1)(u).
Count XII (C.J.): Section 466.028(1)(j), (1)(l), (1)(u)
Count XIII (K.J.): Section 466.028(1)(j), (1)(l), (1)(u)
Count XIV (W.J.): Section 466.028(1)(j), (1)(l) , (1) (u)
Count XIX (G.W.): Section 466.028(1)(j), (1)(l) , (1)(u)
Count XXVII: Section 466.028(1)(bb), repeated violations of Chapter- 466 F.S.
Count XXVIII: Section 466.028(1)(c), being convicted or found guilty, regardless of adjudication, of a crime which relates to the practice of dentistry.
Petitioner has failed to prove a violation of Section 466.028(1)(n), exploitation of the patient, for Counts VI (M.W.), IX (S.W.), XI (A.J.), XII (C.J.), XIII (K.J.), XIV (W.J.), and XIX (G.W.).
Petitioner has failed to prove the following violations charged, by Count: Counts I (MC.), II (T.S. #1), III (T.S. #2), IV (V.W.), V (M.T.), VII (C.T.) VIII (D.L.), X (T.J.), XV (C.C.), XVI (L.S.), XVII (C.F. Jr.), XVIII (D.W.), XX (T.R.), XXI (S.R.), XXII (D.R.), XXIII (M.H.), XXIV (T.M.), XXV (R.G.), XXVI (K.A.).
In assessing a penalty only for the charges proven by clear and convincing evidence, the undersigned is less impressed by the amount of money obtained by Respondent through fraud and misrepresentation than by the pattern of wrongdoing established against him. Clearly, Respondent billed for work he had not performed. Beyond that, how each scam was conceived must be speculative due to the fragmented presentation of the prosecution's case, but it appears that having once copied a family head's Medicaid card, which provided Respondent with the name of each child in a family, he sometimes submitted bills/claims for all the children instead of just for the ones he actually treated. "To err is human." To repeatedly take money that has not been earned is outright theft.
The theft here is
more heinous because it is against all of society--principally the taxpayers who ultimately support the Medicaid Program.
Petitioner has made no post-hearing recommendation of penalty. However, the undersigned has reviewed Rule 21G-13.005 F.A.C., which establishes penalty guidelines for discipline of dentists, and having given great weight to the circumstance that no evidence of mitigation has been shown in this cause, that similar violations have not resulted in permanent revocation for other violators, and that Subsections (3)(d), (o), (x), and (4) of the penalty rule speak directly to the types of violations proven in this case, it is concluded
that an appropriate penalty is a $9,000.00 fine and two year license suspension, reinstatement of license to be conditioned pursuant to the Board's expertise as expressed in its Final Order.
Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a Final Order which
Dismisses all Counts and/or paragraphs of the Administrative Complaint listed in Conclusions of Law paragraphs 8 and 9, supra.
Finds Respondent has violated all charges listed in Conclusions of Law paragraph 7, supra, and
Assesses a penalty of $9,000.00 and two year suspension of Respondent's license to practice dentistry in Florida, subject to reinstatement terms to be determined by the Board in its expertise and set forth in its Final Order.
DONE and ENTERED this 3 day of July, 1990, at Tallahassee, Florida.
ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this
day of July, 1990.
COPIES FURNISHED:
Nancy M. Snurkowski, Senior Attorney Department of Professional
Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
Norman J. Clement, D.D.S. 20060 Santa Barbara
Detroit, Michigan 48221
William Buckhalt, Executive Director Board of Dentistry
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Kenneth E. Easley, General Counsel Department of Professional
Regulation Suite 60
1940 North Monroe Street Tallahassee, Florida 32399-0792
| Issue Date | Proceedings |
|---|---|
| Jul. 03, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 15, 1990 | Agency Final Order | |
| Jul. 03, 1990 | Recommended Order | Dentist with missing, flawed and fraudulent medicaid records and/or reports found guilty of some charges and not guilty on others; evidence discussed. |
