STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3391

)

MICHAEL FREEDMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on November 29, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Natalie Duguid, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399

For Respondent: Michael Freedman, Pro Se

421 Lakeview Drive, Number 201 Fort Lauderdale, Florida 33326

STATEMENT OF THE ISSUES

Whether Respondent violated Sections 466.028(1)(j), (l), (m), (n), (u), and (y), Florida Statutes (1988 Supp.), and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 25, 1993, Petitioner, Agency for Health Care Administration, Board of Dentistry (formerly Department of Business and Professional Regulation), filed a three count administrative complaint against Respondent, Michael Freedman, alleging that he had violated Sections 466.028(1)(j), (l), (m), (n), (u), and (y), Florida Statutes (1988 Supp). Respondent

requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings on July 5, 1995, for assignment to a Hearing Officer. The case was originally assigned to Hearing Officer Stuart M. Lerner, but was transferred to Hearing Officer Susan B. Kirkland to conduct the final hearing.

The final hearing was scheduled for September 19, 1995. On September 13, 1995, Petitioner filed a Motion for Continuance, which was granted. The case was rescheduled for final hearing on November 29, 1995.

At the final hearing, Petitioner dismissed the portions of the Administrative Complaint which related to a violation of Section 466.028(1)(n), Florida Statutes.

At the final hearing, Petitioner called Aurelia Dapra and Dr. Robert Williams as witnesses. Petitioner's Exhibits 1-11 were admitted in evidence. Respondent testified in his own behalf and called Louis Manzo, Carola Novoa, and Dr. Martin Bayloff as witnesses. Respondent's Exhibits 1-20 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within 15 days from the date of the filing of the transcript. The transcript was filed on January 5, 1996. On January 17, 1996, Petitioner filed a Motion for Extension of Time to file proposed recommended orders. The motion was granted and the time for filing proposed recommended orders was extended to January 29, 1996. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.165 and Chapters 455 and 466, Florida Statutes.

   
   

2. Respondent, Michael Freedman (Dr. Freedman), is and has been at all times material to this proceeding a licensed dentist in the state of Florida, having been issued license number DN0010221.

   
   

3. From June, 1988 through February, 1989, Dr. Freedman billed Medicare and received compensation for dental treatment of three elderly patients, L.S., E.K., and K.K., who resided in a nursing home, Meadowbrook Manor of Boca Cove (Meadowbrook).

   Patient L.S.

   
   

4. At all material times to this proceeding, L.S. was a 93- year-old female who suffered from Alzheimer's disease.

   
   

5. At the time of Dr. Freedman's treatment of L.S., Ms. Aurelia DaPra acted as L.S.'s legal guardian. She was also L.S.'s close personal friend and visited L.S. on a daily basis. During these visits Ms. DaPra would attend to L.S.'s personal needs.

   
   

6. On or about July 7, 1988, patient L.S. was presented to Dr. Freedman for a consultation at the nursing home where L.S. resided. Dr. Freedman's examination revealed edentulism and/or prosthetic related problems. His recommendations included further diagnostic investigations, surgical procedures, and rehabilitative measures.

   
   

7. Dr. Freedman billed $173.00 and was subsequently paid

   $107.84 by Medicare for services rendered.

   
   

8. The "Next Patient Appointment/Service Record" contained in Dr. Freedman's records indicate that dental X-rays were taken of L.S. on July 25, 1988.

   
   

9. On July 25, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S.

   
   

10. On August 8, 1988, Dr. Freedman gave telephone orders to the staff at Meadowbrook to premedicate L.S. prior to Dr. Freedman's visit on the next day.

    
    

11. On August 9, 1988, Dr. Freedman visited L.S. Other than rendering an X-ray report, the records do not indicate any other service performed by Dr. Freedman on that date.

    
    

12. On August 9, 1988, Dr. Freedman billed $225.00 and was subsequently paid $108.80 by Medicare for X-rays and supplies for L.S. The Medicare category under which supplies are billed is entitled "supplies/prosthesis." Dr. Freedman's customary practice was to make the X-rays at the nursing home using a mobile X-ray machine and to develop the films in his office the next day. He rendered an X-ray report on the dental X-rays of

    L.S. on August 9, 1988.

    
    

13. On August 17, 1988, Dr. Freedman visited L.S. and did a behavior adjustment evaluation. Premedication was given to L.S. on site.

14. On August 17, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S.

    
    

15. On August 26, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for L.S. The dental records of L.S. do not indicate that any service was provided to L.S. on August 26, 1988. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on August 26, 1988.

    
    

16. Dr. Freedman billed $70.00 for office services on September 2, 1988, and was subsequently paid $34.88 by Medicare for such services. The records of Dr. Freedman include a draft letter to Dr. Janotta, L.S.'s physician, stating that L.S. needed to have intrabony lesions removed and would require premedication to facilitate the procedure. Notes in his records indicate that by September 18, 1988, Dr. Freedman had not heard from Dr. Janotta.

    
    

17. Dr. Freedman billed $72.70 for supplies for L.S. on November 1, 1988, and was subsequently paid $43.88 by Medicare.

    
    

18. On November 1, 1988, Dr. Freedman billed $374.00 and was subsequently paid $160.00 by Medicare for surgery on L.S.

    
    

19. On November 1, 1988, Dr. Freedman performed a debridement procedure on L.S., which was surgical in nature and was not a routine cleaning of the teeth. Another behavior management evaluation was done on L.S. on November 1, 1988.

    
    

20. On January 13, 1989, Dr. Freedman billed $133.00 and was subsequently paid $69.60 by Medicare for X-rays and supplies for L.S. Dr. Freedman's records did not indicate that any services were provided to L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were provided to L.S. by Dr. Freedman on January 13, 1989.

    
    

21. Dr. Janotta's progress notes concerning L.S. indicate that he was contacted by Dr. Freedman on February 5, 1989. On the same date, Dr. Janotta ordered that L.S.'s legal guardian be contacted to get L.S.'s private dentist to look at L.S.'s dental problems.

    
    

22. After Ms. DaPra was informed that Dr. Janotta had left orders that L.S. should see a dentist, she told the nurse that she did not want Dr. Freedman to be used as the dentist.

    
    

23. On January 26, 1989, Dr. Freedman's office called Dr. Janotta's office and stated that Dr. Freedman intended to do some

    minor dental work on L.S. and inquired whether the dental work should be done and whether L.S. should be premedicated.

    
    

24. On February 10, 1989, Dr. Freedman billed $52.00 and was subsequently paid $22.72 by Medicare for office services for

    L.S. Dr. Freedman's records do not indicate that any services were performed for L.S. on that date. Based on the unrebutted evidence presented at the final hearing, no services were performed for L.S. by Dr. Freedman on February 10, 1989.

    
    

25. On February 13, 1989, Dr. Hagquist, a dentist, did an oral exam of L.S. and concluded that several of her teeth needed to be extracted. On February 28, 1989, Dr. Hagquist extracted six of L.S.'s teeth.

    
    

26. On December 13, 1990, L.S. was examined by Dr. Robert

    W. Williams, Petitioner's dental expert. Dr. Williams' examination revealed a completely mutilated dentition with serious carious breakdown and several teeth in poor repair. He further discovered gross calcus and debris present with chronic gingival irritation, inflammation, and periodontal breakdown.

    
    

27. No evidence was presented as to what dental care L.S. received from February 14, 1989 to December 13, 1990.

    
    

    Patient E.K.

    
    

28. At all times material to this proceeding, E.K. was an 84-year-old female who suffered from Alzheimer's disease.

    
    

29. On June 6, 1988, patient E.K. was presented to Dr. Freedman for consultation at the nursing home where she resided.

    
    

30. Dr. Freedman billed $173.00 and was subsequently paid

    $107.84 by Medicare for services rendered on June 6, 1988.

    
    

31. On July 12, 1988, Dr. Freedman made dental X-rays of

    E.K. The dental records do not contain either the x-rays or a report on the findings of the x-rays.

    
    

32. On July 12, 1988, Dr. Freedman billed $238.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient E.K.

    
    

33. Dr. Freedman's records indicate that on August 9, 1988, Dr. Freedman gave some medication as part of a procedure performed on E.K. in the maxilla area. The records do not indicate exactly what the procedure was; however based on the testimony of Dr. Bayloff, Respondent's expert witness, the procedure was not a routine cleaning.

34. On August 9, 1988, Dr. Freedman billed $33.75 and was subsequently paid $10.72 by Medicare for supplies for patient E.K.

    
    

35. According to Dr. Freedman's "Tissue Repair/Debridement/ Treatment Report", on November 1, 1988, Dr. Freedman performed the following on E.K. in the mandible area: "brush", "dentifrice," and "dentition." No evidence was presented to establish whether this procedure would not qualify as surgery for purposes of payment from Medicare.

    
    

36. On November 1, 1988, Dr. Freedman billed $33.75 and was subsequently paid $14.00 by Medicare for supplies for patient

    E.K. The procedure performed on November 1 did require the use of some supplies.

    
    

37. On November 1, 1988, Dr. Freedman billed $200.00 and was subsequently paid $80.00 by Medicare for surgery on patient E.K.

    
    

    Patient K.K.

    
    

38. K.K. is an 85-year-old male who has been described as mentally alert, physically impaired as to sight, and well aware of his surroundings.

    
    

39. On June 13, 1988, patient K.K. was presented to Dr. Freedman for a consultation at the nursing home where K.K. resided. Dr. Freedman made a preliminary evaluation.

    
    

40. Dr. Freedman billed $173.00 and was subsequently paid

    $107.84 by Medicare for consultation services rendered to K.K. on August 13, 1988. It appears that the date which appeared on the Medicare payment report was a scrivener's error and should have read June 13, 1988.

    
    

41. On June 20, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for K.K. This billing was for a trip by one of Dr. Freedman's staff to Meadowbrook to copy parts of K.K.'s records.

    
    

42. On July 12, 1988, Dr. Freedman made dental X-rays of

    K.K. and rendered an X-ray report.

    
    

43. On July 12, 1988, Dr. Freedman billed $283.00 and was subsequently paid $134.08 by Medicare for X-rays and supplies for patient K.K.

44. On July 29, 1988, Dr. Freedman billed $70.00 and was subsequently paid $34.88 by Medicare for office services for patient K.K. Dr. Freedman's records indicate that his staff called Dr. McKay to inquire whether K.K. needed to have premedication prior to minor oral surgery and if so, what medication would be needed.

    
    

    MITIGATION

    
    

45. Dr. Freedman had practiced dentistry at other nursing homes in the area and had not received any complaints concerning the services that he provided.

    
    

46. Between 1985 and 1989, Dr. Freedman developed and maintained a practice exclusively limited to patients requiring special care. The majority of his patients resided in nursing homes or ACLF's and were frail and elderly. He was the Dental Director for 23 long-term care facilities and served 50 other facilities on a more limited basis. At any given time he was serving between 1000 to 2000 patients in a 150 mile area.

    
    

    CONCLUSIONS OF LAW

    
    

47. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

48. Petitioner must establish by clear and convincing evidence that Dr. Freedman has violated Sections 466.028(1)(j), (l), (m), (u), and (y), Florida Statutes (1988 Supp.). Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987).

    
    

49. The portions of the Administrative Complaint alleging a violation of Section 466.028(1)(n), Florida Statutes, were dismissed by Petitioner at the final hearing.

    
    

    50. Sections 466.028(1)(j), (l), (m), (u), and (y), Florida Statutes (1988 Supp.), provide:

    
    

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

* * *

(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 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.

2. Failing to keep written dental records and medical history records justifying the course of treatment of the patient including, but not limited to, patient histories, examination results, test results, and X rays, if taken.

* * *

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

* * *

(y) Being guilty of incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, including but limited to, the undertaking of diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice. For purposes of this paragraph, it shall be legally presumed that a dentist is not guilty

of incompetence or negligence by declining to treat an individual if, in the dentist's profes- sional judgment, the dentist or a member of his clinical staff is not qualified by training and experience, or the dentist's treatment facility is not clinically satisfactory or properly equipped to treat the unique characteristics and health status of the dental patient, provided the dentist refers the patient to a qualified dentist

or facility for appropriate treatment. As used in this paragraph, 'dental malpractice' includes, but is not limited to, three or more claims within the previous 5-year period which resulted in indemnity being paid, or any single indemnity paid in excess of $5,000 in a judgment or settlement, as a result of negligent conduct on the part of the dentist.

1. In Count I of the Administrative Complaint, Petitioner alleges that on July 12, August 9, and November 1, 1988, Dr. Freedman billed Medicare for services or supplies which were never provided to patient E.K. The evidence established that Dr. Freedman did make dental X-rays of E.K. on July 12, 1988, and that he billed for those services and was paid by Medicare. The evidence established that Dr. Freedman performed some type of procedure on E.K. on August 9, 1988, which included giving her some types of medications and using some supplies. The procedure was not a routine cleaning. He billed for the supplies provided and was paid by Medicare for those supplies. The evidence

   demonstrated that on November 1, 1988, Dr. Freedman provided a treatment to E.K. Whether this treatment for E.K. amounted to a surgical procedure under that Medicare category was not established by the record. Dr. Freedman billed for services rendered and supplies used for E.K. on November 1, 1988, and was paid by Medicare. Petitioner has failed to establish by clear and convincing evidence that Dr. Freedman violated Sections 466.028(1)(j), (l), and (u), Florida Statutes as alleged in Count I of the Administrative Complaint.

   
   

2. As to the alleged violation of Section 466.028(1)(m), Florida Statutes, in Count I, Petitioner has established by clear and convincing evidence that Dr. Freedman failed to keep written dental records and medical history records justifying the course of treatment to E.K. as it related to the X-rays taken of E.K. The files for E.K. did not contain either the X-rays or a report on the X-rays. In his proposed recommended order, Dr. Freedman argued that the files must have been in his office from which he had been denied access by his landlord. The explanation is not reasonable given that Dr. Freedman was able to produce the other records for the patients at issue.

   
   

3. As to Count II of the Administrative Complaint, Petitioner has failed to establish by clear and convincing evidence that Dr. Freedman violated Sections 466.028(1)(l) and (u), Florida Statutes, as alleged in Count II. Although Dr. Freedman did not actually see K.K. on June 20, 1988 and July 29, 1988, the evidence presented did not establish that the services that were performed, copying patient records and calling the patient's personal physician, were not services that should not be billed to Medicare.

   
   

4. In Count III of the Administrative Complaint, Petitioner alleged that on July 25, August 9, August 17, August 26, September 2, and November 1, 1988, and January 13 and February 10, 1989, that Dr. Freedman billed for services or supplies which were never provided to patient L.S. The evidence established that X-rays were taken on July 25 and evaluated in a report dated August 9, 1988. The record is not clear what the office services were on July 25 if they were not the taking of the X-rays or what the supplies were that were provided on August

1. Although Dr. Freedman argues in his Recommended Order that the charges for July 25 were for the transporting of the mobile

   X-ray machine, the record does not establish that was the service which was billed. However, the record is clear that on July 25 and August 9 there was some contact between L.S. and Dr. Freedman concerning the taking and evaluating of the patient's dental X- rays. I cannot conclude that no service was provided to L.S. on either July 25 or August 9, 1988. A behavior adjustment evaluation was performed on L.S. on August 17, 1988. Based on

   the evidence presented, no service was provided to L.S. on August 26, 1988. The evidence established that Dr. Freedman wrote a letter to Dr. Janotta on September 2, 1988, stating that L.S. needed some dental surgery. The record is silent as to whether this is a service which should be billed to Medicare. On November 1, 1988, Dr. Freedman did perform a debridement procedure on L.S. The dental records do not indicate that any services were provided to L.S. on January 13 or February 10, 1989, by Dr. Freedman, and there was no testimony from either Dr. Freedman or his expert to the contrary. Petitioner did establish by clear and convincing evidence that no services were provided to L.S. on August 26, 1988, and January 13 and February 10, 1989, and that Dr. Freedman billed Medicare and received payment for services which were not provided on those dates. Petitioner has established by clear and convincing evidence that Dr. Freedman violated Sections 466.028(1)(j) and (l), Florida Statutes.

   
   

   1. In Count III of the Administrative Complaint, Petitioner alleges that Dr. Freedman failed to meet the minimum standard of performance in diagnosis and treatment of L.S. in that he failed to properly diagnose and provide for L.S.'s dental needs and failed to provide L.S. with a proper dental examination, treatment plan, record of treatment, and results of examination and X-rays. Petitioner has failed to prove these allegations by clear and convincing evidence. The evidence established that Dr. Freedman did make a diagnosis after his examination and consultation and that he did prepare a treatment plan for L.S. Dr. Freedman communicated to L.S.'s physician the need for treatment and was trying to get authorization for such treatment from the physician. The physician did not respond to Dr. Freedman's request. Dr. Freedman did perform a surgical procedure on L.S. in November to clean out the infection. Evidence was presented that in early 1989, that Dr. Freedman had again tried to contact L.S.'s physician at least twice concerning dental surgery for L.S. On February 5, 1989, there was a response to the situation by L.S.'s physician. Dr. Janotta entered an order that L.S. needed to see a dentist to have her dental problems resolved. The evidence does establish that Dr. Freedman had made a proper examination, diagnosis, and treatment plan and that he was attempting to get the authorization from Dr. Janotta to carry out the treatment plan. While he was waiting to hear from Dr. Janotta, he did treat L.S.'s problems through a debridement procedure. Petitioner has failed to establish a violation of Section 466.028(1)(y), Florida Statutes.

   2. In Count III of the Administrative Complaint, Petitioner alleges that Dr. Freedman violated Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records, including a proper clinical examination, diagnosis, treatment rendered, treatment plan, X-rays, and

results of same. The evidence established that Dr. Freedman had written dental records on his examination and diagnosis of L.S. His records contained an X-ray report of the X-rays which were taken on July 25, 1988. Dr. Freedman did have a written treatment plan and records of the treatment which was provided. Petitioner has failed to establish by clear and convincing evidence that Dr. Freedman violated Section 466.028(1)(m), Florida Statutes, as set forth in Count III of the Administrative Complaint.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding that Dr.

Freedman did not violate Sections 466.028(1)(j)(l) and (u), Florida Statutes as alleged in Count I, finding that Dr. Freedman did violate Section 466.028(1)(m), Florida Statutes (1988 Supp.), in Count I as it related to the X-rays, dismissing Count II of the Administrative Complaint, dismissing the portions of Counts I and III alleging a violation of Section 466.028(1)(n), Florida Statutes (1988 Supp.), finding that Dr. Freedman did not violate Sections 466.028(1)(m) and (y), Florida Statutes (1988 Supp.), as alleged in Count III, finding that Dr. Freedman violated Section 466.028(1)(j) and (l), Florida Statutes (1988 Supp.), as alleged in Count III, imposing a $750 administrative fine and placing Dr. Freedman on probation for one year under the terms and conditions to be set forth by the Board of Dentistry.

DONE AND ENTERED this 28th day of February, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 28th day of February, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3391

To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-10: Accepted.

2. Paragraph 11: Accepted except as to a prosthesis. The evidence showed that the Medicare category was supplies/prosthesis. Dr. Freedman was billing for supplies not for a prosthesis.

3. Paragraph 12: Accepted.

4. Paragraph 13: Rejected as to the amount billed. The evidence showed that Dr. Freedman billed $70.00. The remainder is accepted.

5. Paragraph 14: Rejected that he billed for supplies and prosthesis. The records indicate that he billed for office services.

6. Paragraph 15: Rejected that Dr. Freedman billed for a prosthesis. The remainder is accepted.

7. Paragraph 16: Accepted.

8. Paragraphs 17-18: Rejected as subordinate to the facts found.

9. Paragraph 19: Rejected as subordinate to the facts found. There was no evidence presented to link the blank X-ray with the X-rays that were taken on July 25, 1988.

10. Paragraphs 20-21: Rejected as subordinate to the facts found.

11. Paragraph 22: Rejected as to billing for a prosthesis. The remaining is accepted.

12. Paragraph 23: Accepted in substance.

13. Paragraph 24: Accepted.

14. Paragraphs 25-26: Accepted in substance.

15. Paragraph 27: Accepted.

16. Paragraphs 28-30: Rejected as unnecessary.

17. Paragraphs 31-32: Accepted in substance.

18. Paragraph 33: Rejected as subordinate to the facts found.

19. Paragraph 34: Accepted in substance.

20. Paragraph 35: Rejected. The evidence does not support such an opinion.

21. Paragraphs 36-38: Rejected as subordinate to the facts found.

22. Paragraph 39: Rejected as not supported by the evidence.

23. Paragraphs 40-41: Accepted.

24. Paragraphs 42-43: Rejected as not established by clear and convincing evidence.

25. Paragraph 44: Accepted.

26. Paragraph 45: Rejected as unnecessary.

27. Paragraphs 46-47: Accepted in substance.

28. Paragraphs 48-50: Rejected as to the prosthesis. The remainder is accepted.

29. Paragraph 51: Accepted.

30. Paragraph 52: Rejected as subordinate to the facts found.

31. Paragraph 53: Rejected. His conclusion is not supported by the evidence presented.

32. Paragraph 54: Rejected as unnecessary and repetitious.

33. Paragraph 55: Rejected as unnecessary.

34. Paragraphs 56-57: Rejected as based on hearsay.

35. Paragraph 58: Rejected as not supported by the evidence.

36. Paragraphs 59-61: Rejected as not established by clear and convincing evidence.

37. Paragraphs 62-66: Accepted.

38. Paragraph 67: Rejected as to prosthesis. The remaining is accepted.

39. Paragraph 68: Accepted.

40. Paragraph 69: Rejected. The evidence established that

    K.K. was actually seen twice by Dr. Freedman.

41. Paragraph 70: Rejected as not established by clear and convincing evidence.

Respondent's Proposed Findings of Fact.

1. Paragraph 1: The third sentence is rejected as unnecessary. The remaining sentences are rejected as constituting argument.

2. Paragraph 2: The first sentence is accepted. The remaining sentences are rejected as subordinate to the facts found.

3. Paragraphs 3-10: Rejected as subordinate to the facts found.

4. Paragraph 11: The first sentence is rejected as constituting argument. The remaining is rejected as subordinate to the facts found.

5. Paragraphs 12-13: Rejected as subordinate to the facts found.

6. Paragraph 14: The first two sentences are rejected as constituting argument. The remaining is rejected as subordinate to the facts found.

7. Paragraph 15: The third sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found.

8. There was no paragraph 16.

9. Paragraph 17: Rejected as subordinate to the facts found.

10. Paragraph 18: Rejected as constituting argument.

11. Paragraph 19: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found.

12. Paragraphs 20-22: Rejected as subordinate to the facts found.

13. Paragraph 23: The first sentence is rejected as constituting argument. The last sentence is rejected as immaterial.

14. Paragraph 24: The first two sentences and the last sentence are rejected as constituting argument. The remainder is rejected as subordinate to the facts found.

15. Paragraph 25: The first and last sentences are rejected as constituting argument.

16. Paragraph 26: Rejected as unnecessary.

17. Paragraph 27: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. Sentences 4-13 and 42 are rejected as immaterial to the issues. Sentences 14, 29, 31, 38,

    and 40 are rejected as constituting argument. Sentence

    15 is accepted in substance. Sentence 16 is rejected as not supported by the evidence presented. Sentences 17-28, 30, 32-37, 39, and 41 are rejected as subordinate to the facts found.

18. Paragraph 28: Rejected as constituting argument.

19. Paragraph 29(1): The first sentence is rejected as unnecessary. The second sentence is accepted. Sentences 3-8 are rejected as subordinate to the facts found that Dr. Williams was an expert. Sentence 9 is rejected as constituting argument. Sentences 10-13 and 15-18, are accepted in substance. Sentence

    14 is rejected as subordinate to the facts found. The remaining sentences are rejected as constituting argument.

20. Paragraph 29(2): Rejected as mere recitation of testimony.

21. Paragraph 29(3): Sentences 1-11 are rejected as mere recitation of testimony. The remaining is rejected as constituting argument.

22. Paragraph 30: Rejected as subordinate to the facts found and as constituting argument.

23. Paragraph 31: Rejected as constituting argument.

24. Paragraph 32: The last two sentences are rejected as constituting argument. The remainder is rejected as mere recitation of testimony and subordinate to the facts found.

25. Paragraph 33: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts found.

26. Paragraph 34: Rejected as constituting argument.

27. Paragraph 35: Sentences 1, 2 6, 7, 12, 13, 56 are rejected as unnecessary. Sentences 3-5, 10, 23, 24, 32, 35, 36, 37, 52, 55, 58 and 59 are rejected as subordinate to the facts found. Sentences 8, 9, 11, 28, 30, 51, 71, 72 are rejected as

    constituting argument. Sentences 14-22, 25-27, 29, 31, 33, 34,

    39-50, 53, 54, 60-63 are accepted in substance. Sentence 38 is rejected as not supported by the evidence. Sentence 57 is not a complete sentence. Sentences 64-70 are rejected as irrelevant.

28. Paragraph 29 (Keene pg. 15 of PRO): The first sentence is rejected as unnecessary. Sentence 2(1) is accepted in substance. Sentence 2(2) is rejected as based on hearsay. Sentence 2(3) is accepted in substance. Sentence 2(4) is rejected to the extent that the opinion was not supported by the evidence. Sentence 3 is rejected to the extent the opinion is not supported by the record.

29. Paragraph 30 (pg. 15 PRO): Sentences 1-3, 5, and 6 are rejected as based on hearsay. Sentences 4 and 27 are rejected as constituting argument. Sentences 7-10, 15, 23, and 24,are accepted in substance. Sentences 11-13 and 16 are rejected as subordinate to the facts found. Sentences 14, 17, 41, 42, are rejected as unnecessary. Sentences 18-22, 28-40, and 43 are accepted in substance to the extent that X-rays were made. Sentences 25 and 26 are rejected as not credible given that Dr. Freedman was able to produce the records of the patients at issue. The testimony at the hearing dealt with his inablity to produce copies of the Medicare forms that he received from Medicare.

30. Paragraph 31 (pg. 16 PRO): The first two sentences are rejected as subordinate to the facts found. The remaining is rejected as constituting argument.

31. Paragraph 32 (pg. 17 PRO): Sentences 1-10 and 17-19 are rejected as irrelevant. The remaining is accepted in substance.

32. Paragraph 33 (pg. 17 PRO): Rejected as subordinate to the facts found.

33. Paragraph 34 (pg. 18 PRO): Sentences 1-10 are accepted in substance. The remainder is rejected as subordinate to the facts found.

34. Paragraph 35 (pg. 18 PRO): The last three sentences are rejected as irrelevant. The remainder is accepted in substance to the extent that Dr. Bayloff was qualified as an expert witness.

35. Paragraphs 36 (pg. 19 PRO): Rejected as irrelevant.

36. Paragraph 37 (pg. 19 PRO): Sentences 1-2 are rejected as unnecessary. Sentences 3-7 are rejected as irrelevant. Sentences 8-10 are accepted in substance to the extent that L.S.'s file did contain adequate records. Sentences 11-14 are accepted to the extent that they apply to the records of L.S. and

    K.K. but not as to the records of E.K. as it relates to the X- rays. There were no X-rays or X-ray report in E.K.'s file.

37. Paragraph 38 (pg. 19 PRO): Sentences 1-2 are accepted in substance as it pertains to L.S. Sentences 3-4 are rejected as irrelevant. Sentences 5-6 are accepted to the extent that the expert reviewed records which were present. There were no

records for treatment of L.S. on August 26, 1988, January 13, 1989, and February 10, 1989. Dr. Bayloff did not render an opinion on whether services were provided on those dates. The remaining is rejected as constituting argument.

COPIES FURNISHED:

Natalie Duguid, Esquire

Agency For Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Michael Freedman

421 Lakeview Drive, Suite 201 Fort Lauderdale, Florida 33326

Dr. Marm Harris Executive Director

Agency For Health Care Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

Jerome W. Hoffman General Counsel

Agency For Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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

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

STATE OF FLORIDA BOARD OF DENTISTRY

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner,

vs. CASE NO.:89-00333, 89-04715 and 89-04716

MICHAEL FREEDMAN, LICENSE NO.: DN 0010221

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on April 19, 1996, in St.

Petersburg, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Agency for Health Care Administration v. Michael Freedman, DOAH Case No. 95-3391. At the hearing, Petitioner was represented by Natalie Duigood, Senior Attorney. Respondent did not appear before the Board. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record 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 adopted and are incorporated herein by reference.

   
   

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

   
   

   CONCLUSIONS OF LAW

   
   

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

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

   
   

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

   
   

   DISPOSITION

   
   

6. The Board rejects the Hearing Officer's recommendation that Respondent be fined $7S0.00 and placed on probation for a period of one year under terms and conditions set by the Board. Instead, the Board finds that as set forth in the Findings of Fact and Conclusions of Law adopted above, Respondent committed the enumerated violations on multiple occasions. Furthermore, inappropriate billing of medicare by licensed health care practitioners is extremely harmful to the public and is a serious problem affecting the provision of health care in Florida. The Board's disciplinary statute and guidelines provide for the imposition of a reprimand and an administrative fine of $3,000.00 per count or offense and for a violation of 466.028(1)(j), F.S.(1988 Supp.), probation, restriction of practice and suspension; and for a violation of 466.028 (l)and (m), F.S.(1988 Supp.), probation. The Board therefore finds it appropriate to increase the penalty recommended by the Hearing Officer in this case.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Sections 466.028(1) (l) (j) and (m), F.S. (1988 Supp.), and Respondent shall be assessed an Administrative Fine in the amount of $9,000.00 to be paid to the Executive Director of the Board of Dentistry within 30 days of the effective date of thin Final Order and Respondent shall have his license to practice dentistry in Florida REPRIMANDED and Respondent's license shall be placed on SUSPENSION for a period of one year from the effective date of this Final Order and upon reinstatement of Respondent's license said license shall be placed on PROBATION for a period of one year during which time Respondent shall be required as terms of such probation to complete 20 hours of Board approved continuing education in the area of record keeping and a college level course in ethics. These hours shall be in addition to the hours Respondent is required to complete for the biennial renewal of his dental license.

This Final Order becomes effective upon its filing with the Clerk for the Agency for Health Care Administration.

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 and by filing a filing fee and one copy of a Notice of Appeal with the District

Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE AND ORDERED this 13 day of May, 1996.

BOARD OF DENTISTRY

PETER A. KELLER, D.D.S. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by United States Mail this 21 day of May 1996, to Michael Freedman 83151 Roswell Road, #280, Atlanta, Georgia 30350, and hand delivered to Natalie Duigood, Senior Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.

Also mailed to: ll80 Southwest 18th Street, No. 5

Miami, Florida 33175

William H Buckhalt, C.P.M. Executive Director

Board of Dentistry

Docket for Case No: 95-003391

Orders for Case No: 95-003391