STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW R. ALTMAN, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 92-4034F

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 23, 1992, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

One North Dale Mabry Suite 1010 Tampa, Florida 33609-2759

For Respondent: Mark Henderson, Esquire

Department of Health and Rehabilitative Services

Building 6 Room 234

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue presented is whether Petitioner is entitled to be reimbursed for costs and attorney's fees incurred by him, pursuant to the Florida Equal Access to Justice Act.

PRELIMINARY STATEMENT

In early 1991, the Department issued its Emergency Termination Order, which terminated Petitioner from participation as a medical provider in the Florida Medicaid Program. After issuance of its Emergency Termination Order, the Department issued an Administrative Complaint, the Petitioner requested a formal hearing regarding the Department's allegations, and the matter was transferred to the Division of Administrative Hearings where it was assigned DOAH Case No.

91-3487. That administrative proceeding resulted in a Recommended Order entered April 20, 1992, recommending that a final order be entered finding Dr. Altman not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. On May 13, 1992, a Final Order was entered finding that the Department had failed to prove its

allegations, finding Dr. Altman not guilty of the alleged violations, and dismissing the Administrative Complaint filed against him.

Thereafter, Petitioner initiated this proceeding, seeking reimbursement for costs and attorney's fees incurred by him in defending the underlying action.

Prior to the final hearing in this cause, the parties stipulated that Petitioner Andrew R. Altman, M.D., is a prevailing small business party as those terms are defined in the Florida Equal Access to Justice Act. The parties further stipulated that Petitioner is entitled to receive the statutory maximum of

$15,000 if he prevails in this action. The only remaining issue herein, therefore, is whether the Department was substantially justified in issuing its Emergency Termination Order and Administrative Complaint against Petitioner.

The Department presented the testimony of Phyllis Stiver, and the six- volume transcript from the underlying proceeding was admitted as Joint Exhibit numbered 1. Petitioner's request for official recognition of the file of the Division of Administrative Hearings in DOAH Case No. 91-3487, together with the exhibits admitted in evidence during that proceeding, was granted.

Both parties submitted post-hearing proposed findings of fact in the form of proposed final orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Final Order.

FINDINGS OF FACT

1. The allegations against Petitioner in the underlying proceeding were all connected with his use of Grenz Ray therapy, a safe, rapid, and painless procedure for the patient. It has been used for the treatment of benign skin diseases for more than sixty years.

   
   

2. The National Academy of Sciences in 1980 affirmed the safety factor inherent in the use of Grenz Rays and strongly endorsed the concept that it remained the prerogative of the physician to use any form of therapy in which the benefits accruing to the patient from its use are considered to outweigh the risks inherent in its use. The American Academy of Dermatology at its 1991 annual meeting offered lectures and a symposium on the beneficial use of Grenz Ray therapy.

   
   

3. Medical schools have taught dermatologists the beneficial use of Grenz Ray therapy for many decades. Many doctors use Grenz Ray therapy as a modality of treatment.

   
   

4. Until the underlying proceeding arose, Dr. Altman's use of Grenz Ray therapy had never been questioned by any federal or state regulatory agency. Until the underlying proceeding arose, no claim for Grenz Ray therapy rendered by Dr. Altman had ever been declined by any third-party payor, and all claims submitted by him to the Department for Grenz Ray therapy had been paid for the two years that Dr. Altman had been participating as a provider in the Florida Medicaid Program prior to the Department's Emergency Termination Order.

   
   

5. There is no statute or rule on either the federal or the state level which prohibits the use of Grenz Ray therapy. Moreover, the Department has no policy against the use of Grenz Ray therapy.

   
   

6. Grenz Ray therapy as utilized by Dr. Altman is conservative. The Department offered no evidence in the underlying proceeding that Grenz Ray therapy as utilized by Dr. Altman is similar to utilizing the drug Thalidomide

   or causing exposure to asbestos, as alleged in the Department's Administrative Complaint.

   
   

7. No patient has complained regarding the treatment provided to that patient by Dr. Altman. The investigation into Dr. Altman's use of Grenz Ray therapy was triggered by a computer search. The matter was then assigned to an investigator who had been employed by the Department for approximately one year who held herself out to have special training in radiation therapy as a certified oncology nurse.

   
   

8. She based her investigation upon experts that began with the use of an expert personally known to her--her own dermatologist who also uses Grenz Ray therapy. Thereafter, one expert recommended another.

   
   

9. At about the same time, she was investigating the use of Grenz Ray therapy by another dermatologist in the Broward County area, the same area in which Petitioner practices. Related to that investigation, the investigator was presented with articles strongly advocating the use of Grenz Ray therapy authored by yet another dermatologist utilizing Grenz Ray therapy in the Broward County area. At the same time, the investigator was also provided with information showing that training in Grenz Ray therapy was a requirement for completing a medical residency in dermatology.

   
   

10. The investigator ignored those articles presented to her and failed to even speak to the author of the articles. On the other hand, the scientific studies, medical textbook chapters, and other medical articles relied upon by the investigator to show that Dr. Altman's use of Grenz Ray therapy was excessive, inferior, or inappropriate did not support that conclusion, but rather supported the opposite conclusion. The investigator did not understand that some of the articles she was reading related to higher levels of ionizing radiation than the ultra-soft Grenz Rays.

    
    

11. Prior to initiating the Emergency Termination Order and the Administrative Complaint, the investigator never spoke to Dr. Altman concerning the services that he was providing. Instead, she went to Dr. Altman's office, advised him that Grenz Ray therapy was an outdated and antiquated modality, and picked up his medical records for the patients in question so that she could make copies of them to have them reviewed by her experts.

    
    

12. Although she had no preconceived list of experts when she started her investigation, the investigator spoke to no practitioner who used Grenz Ray therapy on children and contacted no professional dermatologist associations regarding the use of Grenz Ray therapy by their members. Similarly, although her own dermatologist uses Grenz Ray therapy, the investigator "built a case" which alleged, essentially, that when Dr. Altman utilized Grenz Ray therapy, it was inappropriate.

    
    

13. The investigator specifically made no attempt to contact any expert who would be favorable to Petitioner's use of Grenz Ray therapy.

    
    

14. The investigator formed a mental impression that Petitioner's use of Grenz Ray therapy was inappropriate for children and excessive for adults when she reviewed the computer report of Dr. Altman's claims which had, up to that moment, been paid by the Department without question. Her investigation was thereafter dictated by her personal beliefs, and she ignored all evidence to the contrary. Based upon her investigation, the Department determined that it would take action. Although it could have simply terminated its contract with

    Petitioner without cause, it did not do so. Similarly, the Department did not request that Petitioner reimburse the Department for claims already paid by the Department. Rather, the Department issued an Emergency Termination Order followed by an Administrative Complaint seeking to terminate Dr. Altman from the Medicaid Program for five years and seeking to fine him the amount of $20,000.

    
    

15. Although the Department was justified in conducting its investigation, it was not substantially justified at the time that the underlying action was initiated by the issuance of its Emergency Termination Order and Administrative Complaint.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

17. Once the parties stipulated that Dr. Altman was a prevailing small business party in the underlying proceeding, the burden of proof shifted to the Department to show that it was substantially justified in initiating the underlying action against Petitioner at the time that it was initiated. Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989). Section 57.111(3)(e), Florida Statutes, provides that "A proceeding is 'substantially justified' if it had a reasonable basis in law and fact at the time it was initiated by a state agency."

    
    

18. There was no reasonable basis in law and fact for initiating the underlying proceeding since there is no federal or state statute or rule or Department policy prohibiting the use of Grenz Ray therapy either for adults or for children. Further, the investigator ignored evidence contrary to her own position and announced her conclusion prior to obtaining the medical records from Dr. Altman so they could be reviewed by the experts she consulted.

    
    

19. The Department argues that it is not responsible to Petitioner for attorney's fees and costs since the underlying proceeding turned on the credibility of the witnesses. The Department relies on well-settled case law for that proposition. However, the Department's reliance on those cases is misplaced. The underlying proceeding was based upon an irresponsible and one- sided investigation which is reminiscent of the investigation conducted by the Department in the case of Department of Health and Rehabilitative Services vs. S.G., So.2d (Slip opinion 2/19/93, Fla. 1st DCA). In this case, as in that one, the investigation excluded all witnesses and documents favorable to the Respondent's position. The investigation was conducted, not for the purpose of gathering facts, but for the purpose of building a case to support the investigator's personal opinion formulated before the investigation occurred.

    
    

20. At the time that the underlying proceeding was initiated by issuance of the Emergency Termination Order followed by the Administrative Complaint, the Department was not substantially justified in law and in fact, and the Department has failed to carry its burden of proof.

    
    

21. Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

ORDERED that the Department shall pay to Petitioner Andrew R. Altman, M.D., the statutory maximum of $15,000 within 30 days after the date that this Order becomes final.

DONE and ORDERED this 11th day of March, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

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 11th day of March, 1993.

APPENDIX TO FINAL ORDER DOAH CASE NO. 92-4034F

1. Petitioner's proposed findings of fact numbered 8-24 have been adopted either verbatim or in substance in this Final Order.

2. Petitioner's proposed findings of fact numbered 1-5 and 7 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

3. Petitioner's proposed finding of fact numbered 6 has been rejected as being unnecessary to the issues involved herein.

4. Respondent's proposed findings of fact numbered 3, 5, 6, 11, 15, and 19 have been adopted either verbatim or in substance in this Final Order.

5. Respondent's proposed findings of fact numbered 2, 4, 8, and 9 have been rejected as being unnecessary to the issues involved herein.

6. Respondent's proposed findings of fact numbered 1 and 20-22 are rejected as being irrelevant to the issues under consideration in this cause.

7. Respondent's proposed findings of fact numbered 7, 10, 12-14, 16-18, and 23 are rejected as not being supported by the weight of the credible, competent evidence in this cause.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Suite 1010

One North Dale Mabry Tampa, Florida 33609-2759

Mark Henderson, Esquire Department of Health and

Rehabilitative Services Building 6 Room 234

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Robert B. Williams, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68. Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 92-004034F

Orders for Case No: 92-004034F