STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5477

)

JERALD M. JERVIS, D. C., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Winter Haven, Florida on July 25, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jon M. Pellett, Esquire

Agency for Health Care Administration Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Jerald M. Jervis, D.C., pro se

1100 East Lake Silver Drive, Northeast Winter Haven, Florida 33881-4155

STATEMENT OF THE ISSUES

The issue for consideration in this hearing is whether Respondent's license as a chiropractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint filed in this matter on August 11, 1994, the Agency for Health Care Administration, for the Board of Chiropractors, seeks to discipline the Respondent's license as a chiropractor in Florida alleging that he intentionally failed to file a report or record required by state or federal law for a patient, and failed to perform a statutory or legal obligation placed upon him as a licensed chiropractic physician, in violation of Section 460.413(1), Florida Statutes. Respondent requested formal hearing on the allegations and this hearing followed.

At the hearing, Petitioner presented the testimony of Norma Pinner, the Department's investigator; S.M., the patient in issue; William H. Brawler, a

special investigator for Blue Cross and Blue Shield of Florida; Vincent P. Lucido, D.C., an expert in the field of chiropractic practice; and, by deposition, Lynn Esposito, Manager, Medicare Provider Registration. Petitioner also introduced Petitioner's Exhibits 1 through 12. Respondent testified in his own behalf and presented the testimony of Jamie Miller, a former employee. He also introduced Respondent's Exhibits A through G.

A transcript of the proceedings was provided. Subsequent to the hearing, only Petitioner's counsel submitted Proposed Findings of Fact. These have been accepted and are incorporated as appropriate in this Recommended Order.

Respondent submitted a written closing statement which, though not considered as Proposed Findings of Fact and not incorporated herein, was carefully and in detail considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Board of Chiropractors, was the state agency responsible for the licensing of chiropractic physicians and the regulation of the chiropractic profession in Florida. Respondent was a licensed chiropractic physician holding license number CH-0004760, issued on January 2, 1985.

   
   

2. Shortly after beginning his licensed practice, Respondent requested a provider number under both the Medicare and the Blue Cross/Blue Shield insurance programs, and was assigned provider number 70616. Application for a Blue Cross/Blue Shield provider number does not automatically result in the issuance of a Medicare provider number. That requires a separate request. However, Blue Cross/Blue Shield is the contract manager for the Medicare Part B program in Florida and is responsible for issuing provider numbers to physicians submitting claims to either or both programs, and the number for both may be the same, modified with a PIN number for one of them.

   
   

3. On or about September 26, 1985, Respondent entered into an agreement with Medicare Part B to be a participating physician or supplier, as well as with Blue Cross/Blue Shield. A participating physician is a provider of medical services who agrees by contract to file claims directly with the carrier for the Medicare Part B program and agrees to accept no more than the Medicare approved charge for service of treatment rendered to a patient within the program.

   
   

4. The participation agreement is automatically renewed on an annual basis until the provider requests, in writing, to be disenrolled. Respondent did not submit such a request, and, therefore, from January 1, 1986 through such time in 1995 as his status was terminated, he was a participating physician under the Medicare Part B program.

   
   

5. In mid-September, 1992, S.M., a 70 year old woman, needed chiropractic treatment. Since she had just moved into the Winter Haven area, she contacted a referral service from which she obtained Respondent's name, among others. Because she knew where his office was, she called him to make an appointment, After asking her over the phone if she had Medicare and supplemental insurance coverage, (she did not ask him if he took Medicare patients), he made an appointment with her for an examination. S.M. contends that prior to providing any treatment, Respondent had her fill out a case history form which bears some notations which she did not put there. The Confidential Patient Case History form filled out by the patient on July 18, 1992, in the section entitled "Insurance Information", specifically asks for the name of the patient's

   insurance carrier and if the patient is covered by Medicare, to each of which questions the patient answered affirmatively and gave the pertinent coverage information. She also gave Respondent's staff her insurance cards for copying in support of the information noted on the form.

   
   

6. The same form also has a provision in it which states in part, just above the patient's signature line:

   
   

   .... I understand that this Chiropractic Office will prepare any necessary reports and forms to assist me in making collection

   from the insurance company and that any amount authorized to be paid directly to this Chiropractic office will be credited to my account on receipt. However, I clearly understand and agree that all services rendered me are charged directly to me and that I am personally responsible for payment.

   
   

7. Respondent took two x-rays of the patient's back and then treated her. She visited Respondent's office for treatment on at least two occasions and he wanted her to come back for further visits. However, because she felt better she did not do so. Respondent's records reflect that S.M. was treated by the Respondent with spinal adjustment or manipulation on both September 21 and September 28, 1992, and according to the Board's expert, Dr. Lucido, he also performed spinal acupressure trigger therapy on her. Spinal adjustment is covered by Medicare. Spinal acupressure trigger therapy is not. After each visit, S.M. was requested to pay in full in cash for all services provided and was given a receipt for the payments made. S.M. paid Respondent $170.00 for the first visit and paid $30.00 for each succeeding visit.

   
   

8. According to Dr. Lucido, if Respondent performed services covered by private insurance, the filling out of the form for the patient would be a courtesy. If, however, the patient were covered by Medicare for the service rendered, it would be mandatory. If a chiropractor is going to perform a therapy which, as here, is not covered by Medicare, he is required to notify the patient of this in advance. Since in this case Respondent was performing a service not covered by Medicare, he was obliged to so advise the patient prior to doing the treatment, and this advice should have been reduced to writing and acknowledged by the patient. If a non-covered service was to be the exclusive service provided, Respondent would not have been required to file for Medicare coverage for the patient unless it were necessary in order to get a denial of coverage by Medicare prior to payment by private insurance. This is the standard in the community, according to Dr. Lucido.

   
   

9. Respondent claims to recall vividly the treatment he rendered to S.M. and asserts he did only non-covered therapy which did not require him to fill out a Medicare claim form. He also claims that at the time in issue he was no longer a Medicare provider, asserting that one of the memoranda in the Blue Cross/Blue Shield personnel files relative to his status bears a signature thereon that is not his. Nonetheless, this testimony must be considered in light of Respondent's admission that he was once convicted of a crime involving dishonesty or the making of a false statement. Respondent admits signing up with Medicare early on and there is no evidence that he ever initiated his disenrollment from the program in a manner consistent with the procedure outlined by Ms. Esposito, the agency's enrollment official.

10. The testimony of Respondent's office assistant, Ms. Miller, suggests that the receipts in this case are inaccurate and based on the medical records and her mistaken supposition of what happened in the treatment room. Respondent agrees and claims that when he discovered what had happened and how S.M. had been billed, he tried to retract the incorrect receipts which Ms. Miller had mistakenly issued. Notwithstanding all the above, in Dr. Lucido's opinion, S.M. was given both covered and non-covered treatment, and in this case, he contends, Respondent was obliged to file the Medicare claims form for S.M. After an evaluation of the testimony given by both Respondent and his assistant, it is found that Dr. Lucido's analysis of the situation is more credible and is adopted here.

    
    

11. Ordinarily, S.M. would wait for the Medicare Explanation of Benefits form which she would then use to seek reimbursement from her supplemental carrier. The physician providing Medicare covered treatment is required to submit the Medicare claims form, and some physicians, as a courtesy, will prepare and submit the supplemental insurance claim form as well. After the last visit with Respondent, S.M. requested that he submit her insurance claim form to Medicare on her behalf so that she could be reimbursed for the money paid by her to him. Respondent told her he didn't go to school for five years to learn to fill out forms, but if she would get the forms, he would help her fill them out.

    
    

12. When she went to the Social Security office to get the forms, at first she could not get them. S.M. was told it was up to the doctor to obtain and fill them out. However, she finally prevailed and got the forms which she filled out as best she could, except for the diagnosis. She then took them to Respondent. He not only refused to file the claim form with Medicare for S.M., he also refused to complete the diagnosis portion of the form. As a result,

    S.M. was required to submit the claims forms to Medicare herself, but payment for the services rendered her was denied by Medicare because the claims forms were not filed by Respondent directly with the carrier. When S.M. called Respondent's office to report that, he was not in and she left word for him to call back. He has never done so.

    
    

13. Respondent's assistant, Ms. Miller, claims that on none of the three visits did S.M. indicate she was on Medicare nor did she ever present a Medicare card. Her testimony is not considered reliable, however, and S.M.'s account of the relationship is more credible.

    
    

14. Federal law, at 42 U.S.C. 1395 provides that for services rendered after September 1, 1990, and within one year after the date on which the service is rendered for which payment is sought, a physician or provider:

    
    

    1. ... shall complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of a beneficiary, and

    2. ...may not impose any charge relating to completing and submitting such a form.

       
       

       CONCLUSIONS OF LAW

       
       

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

16. Petitioner seeks to discipline the Respondent's license as a chiropractor in Florida on the alleged bases that Respondent intentionally failed to file a report or record required by state of federal law and failed to perform a statutory or legal obligation placed upon a licensed chiropractic physician, in violation of Sections 460.413(1)(j) and (i), Florida Statutes, respectively.

    
    

17. Petitioner carries the burden of establishing the violations alleged in the Administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Though Respondent claims he was not a Medicare provider at the time he treated S.M.; that the treatment he provided her was not covered by Medicare; and that, therefore, he was not required to prepare and submit the Medicare claims form for this patient, the better weight of the evidence indicates to the contrary.

    
    

18. Respondent may not have desired to remain enrolled in the Medicare program because of his disagreement with the way the program related to chiropractors, but he made no reasonable effort to disenroll himself from it as he could have done each year at enrollment time. Therefore, the evidence is clear and convincing he was a Medicare provider, albeit he may not have felt he was participating. Further, the evidence regarding his medical treatment of S.M., including the medical records, as evaluated by the Hearing Officer and the Board's expert, Dr. Lucido, clearly establishes that the services he provided were, at least in part, procedures covered under Medicare, and this placed on him an obligation to complete the Medicare forms for the patient. This is so, notwithstanding the attempt by Ms. Miller to assume the responsibility for a "mistaken" characterization of what was done, and notwithstanding that his Patient Case History form, at the Insurance section, notes that all services performed are to be charged directly to the patient. As contained in unremarkable small print on a form calling for insurance information, which a patient might well assume is being solicited so that the physician may be sure of being reimbursed, it does not serve as a reasonable notice to switch the responsibility for filing claims to the patient.

    
    

19. Section 460.413(2), Florida Statutes, provides the penalties available to the Board for proven violations of the statute authorizing discipline. They extend from a reprimand to revocation of the license. The Department's rule suggesting discipline guidelines, Rule 21D-16.002(3)(1)(r), F.A.C., provides that for a first violation of Section 460.413(1)(j), the penalty range from a minimum of a three month suspension, followed by six months of probation, to revocation of the license. For a violation of Section 460.413(1()(i), the suggested penalty may range from a minimum of a six month suspension of the license to a six month probation.

    
    

20. In applying these suggestions, Rule 21D-16.003(2), F.A.C. allows consideration of factors in aggravation and mitigation of the established offenses. Here, there is little evidence of either aggravation or mitigation, except that there is no evidence of prior disciplinary action related to the Respondent's license. It is also noted that the violation is not one which relates to the treatment rendered. Consequently, the Board's suggested penalty, including a suspension of the license for three months, probation following for six months, an administrative fine and a reprimand, appears somewhat excessive for a first time offense of the nature involved here. Probation, a more modest fine and a reprimand appear to be more appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Board of Chiropractic enter a Final Order in this case placing Respondent, Jerald M. Jervis', license to practice chiropracty in Florida on probation for six months, assessing an administrative fine of

$500.00, and issuing a reprimand.

RECOMMENDED this 7th day of September, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 7th day of September, 1995.

COPIES FURNISHED:

Jon M. Pellett, Esquire Agency for Health Care

Administration Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerald M. Jervis, D.C.

1100 East Lake Silver Drive, N.E. Winter Haven, Florida 33881-4155

Sam Power Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32309

Diane Orcutt Executive Director

Board of Chiropractors 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

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

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF CHIROPRACTIC

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. CASE NO.: 93-03191

DOAH CASE NO.: 94-05477

JERALD M. JERVIS, D.C., LICENSE NO.: CH 0004760

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Chiropractic (hereinafter referred to as the "Board") pursuant to Section 120.57(i)(b)(9).Florida Statutes, on November 30,1995, in Orlando, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference). The Petitioner was represented by Jon Pellett, Esquire. The Respondent was present and was not represented by counsel at the Board meeting.

Upon consideration of the Hearing Officer's Recommended Order, and the arguments of the parties and after a review of the complete record in this matter, including the exceptions filed, the Board makes the following:

PRELIMINARY MATTERS

The Respondent's request for a continuance is denied as this proceeding is not a novo hearing, nor is it an appeal. There is no showing that there is any prejudice to the Respondent by hearing this matter at this time. There is also no affirmative obligation to provide a transcript to the Respondent without payment of the costs therefore. Finally, the Respondent chose to proceed pro se and cannot now complain that his choice of legal representation was in error.

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are hereby approved and adopted in toto. The Respondent's exceptions are denied as they constitute attempts to reweigh the credibility of witnesses and for the reasons stated in the Petitioner's Response to the Respondent's Exceptions.

   
   

2. There is competent, substantial evidence to support the Hearing Officer's Findings of Fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Section 120.57(1), and Chapter 460, Florida Statutes.

   
   

2. The Hearing Officer's Conclusions of Law are hereby approved and adopted in toto.

   
   

3. Respondent is guilty of violating Chapter 460, Florida Statutes.

   
   

4. The penalty recommended by the Hearing Officer is hereby rejected as the violation did not endanger the public and was not severe in nature.

   
   

5. There is competent, substantial evidence to support the Board's findings and conclusions.

THEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

The Respondent's license is placed on probation for six (6) months.

Pursuant to Section 120.59, Florida Statutes, the Parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within thirty (30) days of the effective date of this Order.

This Order shall become effective upon filing with the clerk of the Agency for Health Care Administration.

DONE AND ORDERED this 13th day of February, 1996.

DR. RANDY GLISSON, CHAIRMAN

Board of Chiropractic

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to JERALD M. JERVIS, D.C., 1100 E. Lake Silver Drive NE, Winter Haven, Florida 33881-4155, and by hand delivery/United States Mail to the Board Clerk, Agency for Health Care Administration and its Counsel, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, on or before 5:00 P.M., this 14th day of February, 1996.

Shawn Grant

Docket for Case No: 94-005477

Orders for Case No: 94-005477