STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 97-5001

)

MOUNIR ALBERT, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on February 5, 1998, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Thomas E. Wright, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32319-4229

For Respondent: Max Price, Esquire

6701 Sunset Drive, Suite 104

Miami, Florida 33143 STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On September 2, 1997, Petitioner issued an Administrative

Complaint against Respondent which read as follows:

COMES NOW the Petitioner, the Department of Health hereinafter referred to as "Petitioner", and files this Administrative Complaint before the Board of Dentistry, against MOUNIR ALBERT, hereinafter referred to as "Respondent", and alleges:

1. Effective, July 1, 1997, Petitioner is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes (Supp. 1996); Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. Pursuant to the authority of Section 20.43(3)(f), Florida Statutes, the Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate.

2. Respondent is, and has been at all

   times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0010217,. Respondent's last known address is 2200 North Dixie Hwy., Boca Raton, Florida 33431.

3. Between or about April 6, 1995 and May 19, 1995, the Respondent provided dental services to Patient M.W.

4. In a letter dated October 13, 1995, Patient M.W. requested the Respondent provide Patient M.W.'s dental records.

5. On or about October 16, 1995 Patient

   M.W. contacted the Respondent telephonically and requested Patient M.W.'s dental records.

6. In a letter dated October 25, 1995, Patient M.W. once again requested the Respondent provide Patient M.W.'s dental records.

7. On or about February 21, 1996, Agency Investigator Stephen J. Holderman hand delivered a subpoena dated February 20, 1995 [sic], to the Respondent requesting all of M.W.'s dental records.

8. On or about March 8, 1996, the Respondent informed Investigator Holderman of his change of legal representation to Dental- Legal Advisors, Inc., Joel M. Berger, D.D.S.,

   J.D. At such time, Investigator Holderman faxed a copy of the aforementioned subpoena to the office of Dental-Legal Advisors, Inc.

9. On or about April 15, 1996, Investigator Holderman contacted Joel Berger regarding the subpoena for Patient M.W.'s dental records. Joel Berger alleged he failed to receive a copy of the letter of complaint which initiated the investigation of the Respondent.

10. Subsequent to the aforementioned conversation, Investigator Holderman faxed a copy of the Uniform Complaint Form, letters of complaint, letter of notification and the subpoena dated February 20, 1995 [sic] to Joel Berger.

11. As of June 9, 1997, the Subpoena dated February 20, 1995 [sic], for Patient M.W.'s dental records has not been complied with.

12. Based on the foregoing, Respondent is subject to discipline pursuant to Section 466.028(1)(aa), Florida Statutes [1995], for the violation of Section 455.241(1), Florida Statutes [1995], requiring any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment.

WHEREFORE, Petitioner respectfully requests

the Board of Dentistry to enter an order imposing one or more of the following penalties: revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate.

Respondent filed an election of rights which disputed the factual allegations in paragraphs 4, 5, 6, 7, 10, and 12 of the complaint. Thereafter, the matter was referred to the Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a formal hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

At hearing, Petitioner called the Patient, M. W., and Stephen J. Holderman, as witnesses. Petitioner's Exhibits A, B, C, D, and G were received into evidence.1 Respondent testified on his own behalf, and Respondent's Exhibits 1 through 10 were received into evidence.

On February 27, 1998, a telephone conference was held, at which time Petitioner announced that notwithstanding the offer of proof at hearing regarding the allegations of the Administrative Complaint that Respondent did not comply with the subpoena served on him for the patient's medical records (See paragraphs 7 through 11 of the Administrative Complaint), it was not pursuing any such charge. The announced reason for such decision was the failure of paragraph 12 of the Administrative Complaint to seek disciplinary action based on such allegations, as well as the Petitioner's failure to seek enforcement of the subpoena in circuit court, which is a condition precedent to a charge under Section 466.028(aa), Florida Statutes (1995), for "failure to comply with a lawfully issued subpoena of the board or department." Carrow v. Department of Professional Regulation,

453 So. 2d 842 (Fla. 1st DCA 1984). Consequently, if a change based on those factual allegations was an initial component of the complaint it has been abandoned, and it is unnecessary to make any findings or otherwise address such matters. (See

Petitioner's proposed recommended order, proposed findings of fact, paragraph 11).

The transcript of hearing was filed February 20, 1998, and the parties were accorded ten days from that date to file proposed recommended orders. The parties elected to file such

proposals, and they have been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Health (Department), is a state agency charged, inter alia, with the duty and responsibility of regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 120, 455, and 466, Florida Statutes.

2. At all times material hereto, Respondent, Mounir Albert, was licensed as a dentist by the State of Florida, having been issued license number DN 0010217. At the time, Respondent maintained his professional practice at 2200 North Dixie Highway, Boca Raton, Florida.

3. On April 6, 1995, M. W., the Patient, presented for his first appointment at Respondent's office. During that visit, Respondent performed an initial examination, took x-rays (two bite wings), and, noting decay, recommended corrective action (drilling and filling of the decayed areas) on a number of teeth. To begin the treatment plan, an appointment was made for

   9:00 a.m., May 19, 1995.

   
   

4. The Patient presented between 9:00 a.m. and 9:05 a.m., May 19, 1995, but, inexplicably, was not seated until approximately 9:50 a.m., and was not seen by Respondent until shortly after 10:00 a.m. At that time, Respondent administered a substance to numb the Patient's mouth, and left the treatment

   room.

5. When Respondent had not returned in approximately one- half hour, the Patient inquired of Respondent's staff, and was directed to speak directly with Respondent. When located, Respondent offered no explanation for the delay, but did offer to immediately begin treatment. The Patient, having waited over one and one-half hours by that time, declined and left the office with an unpleasant opinion of Respondent's office practice.

6. In August 1995, the Patient, still displeased with his treatment on the morning of May 19, 1995, and perceiving that Respondent's treatment proposal was unwarranted, filed a complaint with the Department of Business and Professional Regulation, Bureau of Investigative and Consumer Services (Petitioner's predecessor). Thereafter, by letter of October 13, 1995, the patient requested that Respondent provide him with a copy of his dental records, and also forward a copy to the Department.

7. In response to the Patient's request, Respondent, by letter of October 15, 1995, advised him as follows:

   To enable this office to release your records, please sign the enclosed Authorization to Release Dental Records and remit $35.00 to cover the costs of duplication. Then, please call our office to make an appointment to come in and pick up the records.

   
   

   The Patient did not return an executed authorization to release medical records or remit any money to pay for the cost of duplication. Consequently, Respondent did not copy the records

   as requested.

8. On October 16, 1995, the Patient and Respondent spoke telephonically, and the Patient again requested copies of his records. Respondent reminded the Patient that there was a charge for the duplication, which reminder was not warmly received by the Patient. In response, the Patient told Respondent to send him the records and a bill for their duplication. Respondent, reasonably believing that the Patient had no intention of paying for the cost of duplication, did not copy the Patient's records.2

9. The Patient made a final written request for his records by letter of October 25, 1995, but again failed to remit the money requested to cover the cost of duplication. Respondent again did not comply with the Patient's request.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

11. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be

    established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation,

    458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of Subsection 455.241(1), Florida Statutes, and, therefore, Subsection 466.028(1)(aa), Florida Statutes (1995), as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). Accord, Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992), and Holmberg v. Department of Natural Resources, 503 So. 2d 944 (Fla. 1st DCA 1987).

12. Pertinent to this case, Section 466.028(1), Florida Statutes (1995),3 provides that the Board of Dentistry may take disciplinary action against a licensee when it is shown that the licensee is guilty of:

    (aa) The violation or the repeated violation of this chapter, chapter 455, or

    any rule promulgated pursuant to chapter 455 or this chapter. . .

    
    

13. Here, as the predicate for the claimed violation of subsection 466.028(1)(aa), the Department charges Respondent

    violated the provisions of Subsection 455.241(1), Florida Statutes (1995).4 That subsection provides in pertinent part, as follows:

    1. Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. . . .

       Notably, and also pertinent to this case, subsection 455.241(4)5 provides:

       (4) A health care practitioner furnishing copies of reports or records pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board.

       
       

14. In determining whether Respondent violated the provisions of subsection 466.028(1)(aa), by violation of subsection 455.241(1), as alleged, one must bear in mind that it is, in effect, a penal statute. "As such, it must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Department of Professional Regulation,

    592 So. 2d 1136, 1143 (Fla. 1st DCA 1992). Accord, Holmberg v. Department of Natural Resources, 503 So. 2d 944 (Fla. 1st DCA 1987), and Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).

15. Reading the provisions of section 455.241 consistent

with the foregoing standard, compels the conclusion that the Department has failed to demonstrate a violation of subsection 455.241(1) that would support a basis for discipline under subsection 466.028(1)(aa). In so concluding, it is observed that while subsection 455.241(1) obligates the health care provider to provide, upon request, copies of a patient's medical records, subsection 455.241(4) also authorizes the health care provider to charge, for such service, the cost of duplication. Reading the provisions in pari materi, it is reasonable to conclude that, absent payment of the cost of duplication, a health care provider is under no obligation to provide a patient with copies of his records. Such being the circumstances in the instant case, the Department has failed to demonstrate a violation of subsection 455.241(1) that would provide a basis for disciplinary action under subsection 466.028(1)(aa).6

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 9th day of March, 1998, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1998.

ENDNOTES

1/ Petitioner did not present, for identification or otherwise, any item to be offered as Petitioner's Exhibit F. Petitioner's Exhibit E for identification was withdrawn during the telephone conference of February 27, 1998, and remains in Respondent's possession.

2/ In response to Respondent's bill for services rendered on April 6, 1995, the Patient respondent by letter of July 17, 1995, as follows:

As you may recall, my office visit experiences of April were marred with disorder and deprived of organization. In fact, at that time I lost all hope of receiving a professional level of treatment at the office of Mounir Albert, D.D.S. PA.

The final insult arrived with your first bill dated July 7, 1995 in which you threaten to report the unpaid balance. Please review and revise the due date such that it does not coincide with the billing date.

Enclosed please find partial payment of

$5.00. Payments will follow in concurrence with the ensuing investigations by the Gardian and the BPR.

I am looking forward to completing this disclosure. Thank you.

It is evident from the tenor of the letter, as well as the Patient's testimony at hearing, that the Patient was miffed at Respondent, and would not make further payment on the bill. Given the circumstances, Respondent reasonably concluded that unless he received payment in advance, the Patient would not pay the costs of duplication. Indeed, the Patient steadfastly failed to tender the costs of duplication, as requested by Respondent's letter of October 15, 1995.

3/ The provisions of Subsection 466.028(1)(aa), Florida Statutes (1995), are still codified at Subsection 466.018(1)(aa), Florida Statutes (1997).

4/ The provisions of Subsection 455.241(1), Florida Statutes (1995), are now codified at Subsection 455.667(4), Florida Statutes (1997).

5/ The provisions of Subsection 455.241(4), Florida Statutes (1995), are currently codified at Subsection 455.667(16), Florida Statutes (1997).

6/ Petitioner's proposed findings of fact suggest that the Patient "requested his dental records." See Petitioner's Proposed Recommended Order, Proposed Findings of Fact, paragraphs 8-10.

The Patient requested copies of his records, but not his actual (original) records, as Petitioner's proposal implies.

Petitioner's proposed findings of fact also suggest that "Respondent had no statutory authority to charge a fee for delivery of patient records submitted to him by the patient's previous dentist." Petitioner's Proposed Recommended Order, Proposed Findings of Fact, paragraph 13. Again, the Patient requested copies of his records, but not his actual records, as Petitioner's proposal implies. Respondent is authorized to charge for duplication. Subsection 455.241(4), Florida Statutes (1993). For Respondent to have delivered Patient's actual records, as opposed to copies, would have required more formality. See, e.g., Section 466.018(4), Florida Statutes (1995).

COPIES FURNISHED:

Thomas E. Wright, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32319-4229

Joel M. Berger

Dental-Legal Advisors, Inc.

7737 North University Drive, Suite 100 Fort Lauderdale, Florida 33321-2968

Max Price, Esquire

6701 Sunset Drive, Suite 104

Miami, Florida 33143

Mounir Albert, D.D.S. 2200 North Dixie Highway

Boca Raton, Florida 33431

William Buckhalt, Executive Director Board of Dentistry

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard, Building Six Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-005001

Orders for Case No: 97-005001