STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )
)
Petitioner, )
)
vs. )
) ADOLFO DE CESPEDES, D.D.S., )
)
Respondent. )
Case No. 00-3826PL
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this matter before Diane Cleavinger, a designated Administrative Law Judge of the Division of Administrative Hearings, on January 16, 2001; February 26 through 28, 2001; April 2 and 3, 2001; and
July 27, 2001, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Tracy J. Sumner, Esquire
Agency for Health Care Administration Post Office Box 14229
Mail Stop 39
Tallahassee, Florida 32317-4229,
For Respondent: Douglas L. Stowell, Esquire
Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302
STATEMENT OF THE ISSUE
Whether Respondent's dental license should be disciplined and, if so, what penalties should be imposed.
PRELIMINARY STATEMENT
An Emergency Suspension Order was filed on July 21, 2000, suspending Respondent, Adolfo de Cespedes, D.D.S., from practicing dentistry. On August 14, 2000, the Department of Health, Board of Dentistry, filed an Administrative Complaint against Respondent charging him with violations of Chapters 466 and 455, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent's dental license should be disciplined for: (1) violating Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry and billing Medicaid for services and treatments not rendered to Respondent's patients; (2) violating Section 466.028(1)(t), Florida Statutes, by engaging in fraud, deceit, or misconduct in the practice of dentistry and billing Medicaid for services and treatments not rendered to Respondent's patients; (3) violating Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false, failing to file a report required by state or federal law, and knowingly impeding or obstructing such filing or inducing another person to do so and by billing Medicaid for services and treatments not rendered to Respondent's patients; (4) violating Section 455.624(1)(n), Florida Statutes (1999), by exercising influence on patients for financial gain by promising and providing free transportation to
his dental clinic; (5) violating Section 466.028(l), Florida Statutes, for advertising specialty services in violation of Section 466.0282, Florida Statutes; and (6) violating Section 466.028(1)(x), Florida Statutes, for incompetence or negligence by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance.
An Amended Administrative Complaint was filed on August 25, 2000, that included the allegations referenced above but added incidents of Medicaid fraud on nine other patients. Respondent disputed the allegations contained in the Amended Administrative Complaint and requested a hearing. The matter was referred to the Division of Administrative Hearings.
A final hearing was scheduled in this matter for three days in November 2000. However, due to the extensive discovery issues involved in this case, the hearing was continued and
re-scheduled for January 16 through January 19, 2001. The hearing began on January 16, 2001, but was continued to February 26 through 28, 2001. The hearing did not conclude on February 28, 2001, and was continued to April 2 and 3, 2001, and
July 27, 2001.
Prior to the hearing, Petitioner and Respondent entered into an amended prehearing stipulation.
The stipulated exhibits were as follows:
Licensure package of Dr. de Cespedes;
Consultec records for the 21 listed patients in the Amended Administrative Complaint;
Patient records, including X-rays of Dr. de Cespedes for the 21 listed patients in the Amended Administrative Complaint;
Patient records of Dr. Loveless, except for references to Medicaid billing, of all patients examined;
Patient records of Dr. Sheppard including X-rays and slides;
Patient records of Dr. Shields including X-rays and slides;
Deposition of Dr. Carey;
Both depositions of Dr. de Cespedes;
Thrifty Nickel advertisement, Yellow Pages advertisement, flyer and expense records for said advertisements;
Respondent's employment and payment, and expense records for Lillie Harvey;
Sworn Statement of Lillie Harvey;
Deposition of Dr. Stan Sheppard;
Deposition of Dr. Tom Shields;
Deposition of Demetrie Gibson;
Deposition of Dr. Doug Loveless; and
Medicaid billing codes.
The stipulated facts were as follows:
Respondent was a licensed dentist with the State of Florida, License No. DN 9800 at all times material to the case at issue.
Respondent was the president of Medident Center, Inc.
Medident Center, Inc., is an active Florida corporation and was an active Florida corporation at all times material to the case at issue.
a. For patient S.T., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A occlusal (billing code D2380).
For patient S.T., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J occlusal (billing code D2380).
For patient S.T., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J lingual (billing code D2380).
For patient S.T., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
19 occlusal (billing code D2385).
For patient S.T., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
19 facial (billing code D2385).
a. For patient T.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth 8 mesial facial (billing code D2335).
For patient T.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth 8 distal facial (billing code D2335).
For patient T.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
14 lingual (billing code D2385).
For patient T.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 lingual (billing code D2385).
a. For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth 3 occlusal (billing code D2385).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 3 lingual (billing code D2385).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
14 occlusal (billing code D2385).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
14 lingual (billing code D2385).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A occlusal (billing code D2380).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A lingual (billing code D2380).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth B occlusal (billing code D2380).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth I occlusal (billing code D2380).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth K occlusal (billing code D2380).
For patient K.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth K buccal (billing code D2380).
a. For patient J.G., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A occlusal (billing code D2380).
For patient J.G., Respondent's patient records reflect that he billed for tooth A lingual (billing code 2380--a code which allows payment of
$31.00), and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A lingual.
For patient J.G., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J occlusal (billing code D2380).
For patient J.G., Respondent's patient records reflect that he billed for tooth J lingual (billing code 2380--a code which allows payment of
$31.00), and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J lingual.
a. For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 3 lingual (billing code D2385).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 3 buccal (billing code D2385).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
14 lingual (billing code D2385).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
14 buccal (billing code D2385).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A occlusal (billing code D2380).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A lingual (billing code D2380).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A buccal (billing code D2380).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth C mesial buccal (billing code D2335).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth C distal buccal (billing code D2335).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $72.00 for tooth D mesial buccal (billing code D2335).
For patient C.W., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D distal buccal (billing code D2335).
For patient L.C., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth L lingual (billing code D2380).
a. For patient L.B., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 30 occlusal (billing code D2385).
b. For patient L.B., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 lingual (billing code D2385).
a. For patient S.C. #1, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $13.00 for tooth 2 sealant (billing code D1351).
For patient S.C. #1, Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth 3 buccal (billing code D2385).
For patient S.C. #1, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
buccal (billing code D2385).
For patient S.C. #1, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $13.00 for tooth
sealant (billing code D1351).
For patient S.C. #1, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
19 lingual (billing code D2385).
For patient S.C. #1, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 lingual (billing code D2385).
a. For patient S.C. #2, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
19 lingual (billing code D2385).
For patient S.C. #2, Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
occlusal (billing code D2385).
For patient S.C. #2, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
lingual (billing code D2385).
For patient S.C. #2, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T lingual (billing code D2380).
a. For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A occlusal (billing code D2380).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth B buccal (billing code D2380).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D distal buccal (billing code D2335).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth D mesial buccal (billing code D2335).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth G distal buccal (billing code D2335).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth G mesial buccal (billing code D2335).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth I buccal (billing code D2380).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J buccal (billing code D2380).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J lingual (billing code D2380).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth K lingual (billing code D2380).
For patient S.C. #3, Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth L buccal (billing code D2380).
a. For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth C distal facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth C mesial facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D distal facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D mesial facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $72.00 for tooth G distal facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth G mesial facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth H distal facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth H mesial facial (billing code D2335).
For patient M.J., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J lingual (billing code D2380).
a. For patient R.P., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $13.00 for tooth
sealant (billing code D1351).
For patient R.P., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $72.00 for tooth 6 distal buccal (billing code D2335).
For patient R.P., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth 8 mesial buccal (billing code D2335).
For patient R.P., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth 6 mesial buccal (billing code D2335).
For patient R.P., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth 7 mesial buccal (billing code D2335).
For patient R.P., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth 8 distal buccal (billing code D2335).
a. For patient A.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
lingual (billing code D2385).
For patient A.S., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
30 lingual (billing code D2385).
For patient A.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
19 occlusal (billing code D2385).
For patient A.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
14 lingual (billing code D2385).
a. For patient J.A., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T occlusal (billing code D2380).
For patient J.A., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T buccal (billing code D2380).
For patient J.A., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth S occlusal (billing code D2380).
a. For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $72.00 for tooth E distal buccal (billing code D2380).
For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth F distal buccal (billing code D2335).
For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D distal buccal (billing code D2335).
For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth E mesial buccal (billing code D2335).
For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth G distal buccal (billing code D2335).
For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D mesial buccal (billing code D2335).
For patient R.M., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $72.00 for tooth F mesial buccal (billing code D2335).
a. For patient E.I., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth F mesial buccal (billing code D2335).
For patient E.I., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth F distal buccal (billing code D2335).
For patient E.I., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth C distal buccal (billing code D2335).
For patient E.I., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth C mesial buccal (billing code D2335).
For patient E.I., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $72.00 for tooth D mesial buccal (billing code D2335).
a. For patient S.G., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth S buccal (billing code D2380).
For patient S.G., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T occlusal (billing code D2380).
For patient S.G., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T buccal (billing code D2380).
For patient S.G., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth S occlusal (billing code D2380).
a. For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T occlusal (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth A occlusal (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth S occlusal (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J occlusal (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T buccal (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth J lingual (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth K buccal (billing code D2380).
For patient S.L., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth T lingual (billing code D2380).
a. For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth 4 occlusal (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 2 buccal (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
19 lingual (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 occlusal (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 3 buccal (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 3 lingual (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
18 occlusal (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 buccal (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 2 lingual (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
15 lingual (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 lingual (billing code D2385).
For patient P.F., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
15 occlusal (billing code D2385).
a. For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth 3 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
15 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
30 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
13 occlusal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
31 buccal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
buccal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
buccal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
19 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
occlusal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 3 buccal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth 2 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
occlusal (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect
that Respondent billed and was paid $31.00 for tooth
15 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
31 lingual (billing code D2385).
For patient L.S., Respondent's patient records and the Consultec Medicaid records reflect that Respondent billed and was paid $31.00 for tooth
18 occlusal (billing code D2385).
a. For patient N.J., the Consultec Medicaid records reflect that billing was submitted using Respondent's provider number for tooth 30 buccal (billing code D2385) and Respondent was paid $31.00 for tooth 30 buccal (billing code D2385).
For patient N.J., the Consultec Medicaid records reflect that billing was submitted using Respondent's provider number for tooth 3 lingual (billing code D2385) and Respondent was paid $31.00 for tooth 3 lingual (billing code D2385).
For patient N.J., the Consultec Medicaid records reflect that billing was submitted using Respondent's provider number for tooth 30 occlusal
(billing code D2385) and Respondent's was paid $31.00 for tooth 30 occlusal (billing code D2385).
Respondent's records reflect the information on the Consultec billing records and that payment was made for the items billed to Respondent's provider number 0717282.
At the hearing, Petitioner presented the testimony of eight witnesses, four expert witnesses, and entered two exhibits into evidence. Respondent testified in his own behalf and offered the deposition testimony of one expert witness who had seen some of the patients listed in the Administrative Complaint.
Additionally, Respondent entered two exhibits into evidence.
After the hearing, a Transcript of the hearing, consisting of seven volumes, was filed on August 3, 2001. Petitioner filed a Proposed Recommended Order on September 17, 2001. In Petitioner's Proposed Recommended Order, Petitioner dismissed the allegations of the Administrative Complaint involving illegal advertising by Respondent; therefore, those allegations are dismissed. Respondent did not file a proposed recommended
order.
FINDINGS OF FACT
Respondent is a licensed dentist with the State of Florida, holding License No. DN 9800.
In 1999, Respondent decided to move his practice from South Florida to Tallahassee, Florida. In preparation for the move, Respondent investigated the need for Medicaid dental services in the Tallahassee area. Respondent discovered that Medicaid recipients were a significantly under-served population in the Tallahassee area for the availability of general dental services. Respondent concluded that the number of Medicaid recipients in need of dental services would support a dental office in Tallahassee.
Medicaid is a federal program which funnels money to the states for payment of the cost of health care to the needy. In order to obtain the federal money, a state must establish a Medicaid Program which meets federal requirements. Florida has established such a program. It is administered by the Department of Health.
Around September 1999, Respondent located appropriate office space in Tallahassee. Over the next few months, Respondent remodeled the office space on the weekends while maintaining his dental practice in South Florida. Eventually, Respondent sold his practice in South Florida.
In January 2000, Respondent opened his office, Medident Center, Inc. (Medident), in Tallahassee. Respondent was the president and owner of Medident.
In an effort to let the public, medical and dental community know that his office was open and would primarily serve Medicaid recipients, Respondent contacted local pediatricians, local medical and dental associations, public health and welfare agencies, and local housing authorities. Respondent also advertised in the Thrifty Nickel advertising publication.
After opening his office, Respondent hired a van driver to go to local housing neighborhoods and contact people in those areas in regards to Respondent's dental practice. Respondent got the information of where to send the van from an elderly woman who was part of the local housing authority and wanted to help Respondent supply this service. This elderly woman often road in the van with the driver to the local housing neighborhoods.
Transportation was offered to the people needing such service. The driver of the van would distribute a flyer to residents or persons she found in the housing project. The flyers advertised free transportation for groups of eight to ten patients or groups of neighbors and asked that the person call for information. In the flyers, Respondent stated he provided dental services to children (3 to 20 years old). The flyer also welcomed Medicaid and private patients, indicating no other insurance would be accepted. The advertisement stated:
FREE
TRANSPORTATION FOR FAMILIES OF 8 TO 10 PATIENTS OR GROUP OF NEIGHBORS.
CALL FOR INFORMATION ADOLFO R DE CESPEDES DDS MEDIDENT CENTER INC.
WELCOME MEDICAID NEW PATIENTS AND PRIVATE PATIENTS (NO OTHER INSURANCE ACCEPTED)
1391 TIMBERLANE RD #101 TALLAHASSEE FL 32312 (BETWEEN GILCREST SCHOOL AND MARKET SQUARE) EXIT 30 GO NORTH ON THOMASVILLE, FIRST LIGHT LEFT. (850) 894-5044 (850) 894-5642
Respondent, through Medident, provided general dental services to Medicaid recipients for which Medicaid paid. Respondent's Medicaid provider number was 0717282.
In essence, the Medicaid program establishes a flat rate of compensation for delivery of various medical services, in this case, dental services to a Medicaid qualified patient. The rate of compensation is generally a flat fee for a certain type of dental service or category of treatment, that is, fillings involving one tooth surface; fillings involving two or more tooth surfaces; surgical extractions; and, application of sealants to the teeth, etc.
A Medicaid provider bills Medicaid for dental services by a system of billing codes. These codes classify each dental service and establish a price for that service.
As a general rule, a Medicaid provider is entitled to be paid after dental services are rendered or delivered.
The average Medicaid dental patient has gross decay when compared to the general dental population. The Medicaid population often requires more dental treatment than the general dental population.
Beginning in February 2000, Respondent was the subject of an investigation by the Medicaid Fraud Control Unit of the Attorney General's Office. The investigation stemmed from a complaint by a parent whose child had been one of Respondent's patients in South Florida and two inquiries from investigators from AHCA involving the advertisements used by Respondent to advertise his dental practice and solicit Medicaid recipients. The complaining parent in South Florida could not be located. However, four other patient names were supplied to the Medicaid Fraud Investigation Unit by AHCA. These patients were C.W., C.T., K.M. and T.F. These patients were examined by Dr. Douglas
W. Loveless, D.D.S., a dental consultant and dental expert for the Department. The examinations took place under good conditions at the local health department dental facility on March 15, 2000.
After the initial group of four patients, 15 patients' names were supplied by AHCA to the Medicaid Fraud Investigation Unit. They were examined by Dr. Loveless on May 4, 2000, in a
room at Riley Elementary School. The examination conditions at the school were good.
Later, ten other patients' names were supplied by AHCA to the Medicaid Fraud Investigation Unit. These patients were examined by Dr. Loveless under good conditions at the local health department dental facility on June 20, 2000.
In general, Dr. Loveless' exams revealed that
Dr. de Cespedes billed Medicaid for dental work which was not performed.
The Department also had Dr. Thomas Eugene Shields, II, D.D.S., and Dr. Stanley Sheppard, D.D.S., clinically examine the patients examined by Dr. Loveless. These examinations occurred under good conditions in Dr. Sheppard's dental office. In general, the Shield and Sheppard examinations corroborated the results of the Loveless examinations.
Respondent asked Dr. Fish, D.D.S., to conduct a separate independent examination of some of the patients included in the Amended Administrative Complaint.
Dr. Fish clinically examined some of the patients that Dr. Loveless examined. The patients were examined in a dental office. In general, Dr. Fish's examinations disagreed with the other three expert examinations. However, the specific details of Dr. Fish's examinations could not be determined because
Dr. Fish refused to attend the hearing in Tallahassee falsely
indicating that he could not book a flight to Tallahassee after the hearing had been continued one time for the same reason to enable Dr. Fish to book such a flight. In lieu of live testimony, Respondent was forced to introduce the deposition of Dr. Fish which had been taken by the Department. Upon analysis, Dr. Fish's deposition proved to be of little use due to the importance of viewing X-rays and pictures in this case and referring to specific areas on those X-rays and pictures. From the deposition, it was impossible to determine which areas of the X-rays or pictures Dr. Fish referred to as showing the dental work Respondent claimed to have performed since
Dr. Fish's referring gestures could not be seen, and the description of the area was inadequate to isolate the areas to which his gestures referred. Therefore, Dr. Fish's deposition is not supportive of Respondent's claim, which claim was not demonstrated by the evidence that he performed the work for which he had billed Medicaid, and that the fillings were hard to locate since they were generally pinpoint, one-surface fillings which could not be readily found or seen on an X-ray or picture. Respondent had no independent recollection of the services he allegedly rendered to the patients involved in this case but relies on his records of treatment for each patient.
It is simplest to visualize the surfaces of a tooth by visualizing a closed box. It has a top with four sides. These
"surfaces" connect to an adjoining surface at some point or plane. A particular surface is referred to by that surface's location inside the mouth. The surfaces are occlusal, mesial, distal, buccal, and lingual.
The Department's doctors reported their exam findings on a form developed for such a purpose. Common notations used by each dentist were as follows: (a) the letter "O" was used to signify the occlusal surface of a tooth which is top of the tooth; (b) the letter "M" was used to signify the mesial surface of a tooth which is the part of the tooth that faces the front;
(c) the letter "D" was used to signify the distal surface of a tooth which is the part of the tooth that faces the back of the mouth; (d) the letter "B" was used to signify the buccal or facial surface of a tooth which is the side of the tooth facing the cheek or face; and, (e) the letter "L" was used to signify the lingual surface of a tooth which is the side of the tooth that faces the tongue. Each doctor also referenced a particular tooth according to a standard numbering or lettering system where each tooth is given a number or letter. Baby teeth are lettered and adult teeth are numbered. A diagram showing this numbering/lettering system is contained in Appendix I to this Recommended Order.
As indicated earlier, the Amended Administrative Complaint involves 21 separate patients. For purposes of
clarity the facts and circumstances surrounding each patient, the counts related to that patient and any violations related to that patient will be discussed individually. No alleged violations of Chapter 466, Florida Statutes, were established by the evidence unless it is specifically noted below.
PATIENT S.T.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of one-surface resin restorations on the occlusal surface of
teeth A, J and 19, the lingual surface of tooth J, and the buccal surface of tooth 19.
Respondent's record of treatment on Patient S.T. reflects that on January 26, 2000, Respondent allegedly restored the occlusal surface of teeth A, J, and 19; the lingual surface of tooth J; and the buccal surface of tooth 19. All the restorations were one-surface composite resin restorations. Respondent was paid $155.00 or $31.00 apiece for these restorations by Medicaid.
Examinations by the Department's three experts revealed that there were no restorations present on any of the surfaces claimed to have been restored by Respondent. Moreover,
comparison of the pre- and post-examination X-rays of Patient S.T.'s teeth showed decay still present on the mesial-occlusal surface of tooth J, further indicating no restoration had been performed by the Respondent. All three experts found only a sealant had been placed on tooth 19. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient S.T., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT T.F.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the mesial-buccal surface of tooth 8; the restoration of the distal-buccal surface of tooth 8; the restoration of the lingual surface of tooth 14; and the restoration of the lingual surface of tooth 30.
Respondent's record of treatment on Patient T.F. reflects that on January 27, 2000, Respondent allegedly restored the mesial-buccal surface of tooth 8; the distal-buccal surface of tooth 8; the lingual surface of tooth 14; and the lingual surface of tooth 30. The restorations were variously one- and
two-surface composite resin restorations. Respondent received
$206.00 for these restorations.
Examinations by the Department's three dental experts revealed no restorations had been performed on teeth 8, 14, and 30. Moreover, T.F.'s mother was present when the work claimed by Respondent was allegedly performed. She only saw Respondent clean T.F.'s teeth during the first visit and pull one of T.F.'s baby teeth during the second visit. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient T.F., filed false reports of service to Medicaid, and gained financially when Respondent was paid for services he did not perform.
PATIENT K.M.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment for the restoration of the occlusal surface of teeth 3, 14, A, B, I and K; the restoration of the lingual surface of teeth 3, 14 and A; and the restoration of the buccal surface of tooth K.
Respondent's record of treatment on patient K.M. reflects that on February 3, 2000, Respondent allegedly restored the occlusal surface of teeth 3, 14, A, B, I and K; the lingual
surface of teeth 3, 14 and A; and the buccal surface of tooth K. Respondent was paid $310.00 for these services.
Examinations by the Department's three dental experts found that no restorations as described above had been performed. Tooth B had an existing amalgam restoration. Tooth B had untreated decay. Tooth I also had untreated decay on the mesial and occlusal surface. Such untreated decay indicates no restorations were performed to the decayed surfaces of these teeth. Tooth K had a sealant only, indicating that no restoration was performed. Additionally, the evidence showed that Respondent did not use a drill during Patient K.M.'s dental visit. Respondent fraudulently billed and was paid for services not rendered to Patient K.M., filed false reports of service to Medicaid, and gained financially when he was paid for services he did not perform.
PATIENT J.G.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the occlusal surface of teeth A and J; and the restoration of the lingual surface of teeth A and J.
Respondent's record of treatment on Patient J.G. reflects that on February 3, 2000, Respondent allegedly restored the occlusal surface of teeth A and J, and the lingual surface of teeth A and J. All of the restorations were one-surface composite resin restorations. Medicaid paid Respondent $124.00 for these procedures.
Examinations by the Department's experts found that no restorations had been performed. Moreover, tooth A and J had only sealants on their occlusal surfaces. Respondent fraudulently billed and was paid for services not rendered to Patient J.G., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT C.W.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the lingual surface of teeth 3, 14 and A; the restoration of the buccal surface of teeth 3, 14 and A; the restoration of the occlusal surface of tooth A; the restoration of the mesial-buccal surface of teeth C and D; and the restoration of the distal-buccal surface of teeth C and D.
Respondent's record of treatment on patient C.W. reflects that on February 8, 2000, Respondent allegedly restored the lingual surface of teeth 3, 14 and A; the buccal surface of teeth 3, 14 and A; the occlusal surface of tooth A; the mesial- buccal surface of teeth C and D; and the distal-buccal surface of teeth C and D. All of the alleged restorations were one- or two-surface composite resin restorations. Respondent was paid
$505.00 by Medicaid for the restorations.
Examinations by the Department's experts showed that no restorations had been performed. Additionally, post- procedure radiographs indicated decay present on tooth C. Finally, tooth A, a baby tooth, was ready to exfoliate at the time Respondent billed for the work performed on tooth A. By the time of the follow up examination by the Department's experts on March 2, 2000, the post-operative radiograph showed complete re-absorption of the root of tooth A with only the shell of the clinical crown remaining. Medicaid policy prohibits restoration of a deciduous (baby) tooth if it is likely to exfoliate within six months. Tooth A was likely to exfoliate within six months when Respondent treated Patient C.W. In any event, Respondent fraudulently billed and was paid for services not rendered to Patient C.W., filed false reports of service to Medicaid and gained financially when he was paid for services Respondent did not perform.
PATIENT L.C.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the lingual surface of tooth L.
Respondent's record of treatment on Patient L.C. reflects that on March 9, 2000, Respondent allegedly restored the lingual surface of tooth L with a composite resin filling. Respondent received $31.00 in payment from Medicaid for the alleged restoration of tooth L.
Examinations by the Department's experts showed no restoration present on tooth L. For Patient L.C., Respondent fraudulently billed and was paid for services not rendered to Patient L.C., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT L.B.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the
restoration of the occlusal surface of tooth 30 and the restoration of the lingual surface of tooth 30.
Respondent's record of treatment on Patient L.B. reflects that on March 10, 2000, Respondent allegedly restored the occlusal surface of tooth 30 and the lingual surface of tooth 30 with one-surface composite resin fillings. Respondent was paid $62.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations were present. For Patient L.B., Respondent fraudulently billed for services not rendered to Patient L.B., filed false reports of service to Medicaid and gained financially when Respondent was paid for services he did not perform.
PATIENT S.C. #1
Count I of the Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of placing a sealant on teeth 2 and 15, the restoration of the buccal surface of teeth 3 and 14, and the restoration of the lingual surface of teeth 19 and 30.
Respondent's record of treatment on Patient S.C. #1 reflects that on March 10, 2000, Respondent allegedly placed a
sealant on teeth 2 and 15, restored the buccal surface of teeth 3 and 14, and the lingual surface of teeth 19 and 30. Respondent was paid $150.00 by Medicaid for these services.
Examinations by the Department's experts revealed no restorations or sealants were present on the surfaces declared by Respondent. However, tooth 3 had some sealant material on it, indicating some dental work had been done on S.C. #1's teeth. On the other hand, tooth 15 had occlusal decay indicating no sealant had been placed on the tooth. The clear and convincing evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient
S.C. #1, filed false reports of service to Medicaid and gained financially when he was paid for services Respondent did not perform.
PATIENT S.C. #2
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 19, 30, and T; and the restoration of the occlusal surface of tooth 29.
Respondent's record of treatment on Patient S.C. #2 reflects that on March 10, 2000, Respondent allegedly restored
the lingual surface of teeth 19, 30, and T and the occlusal surface of tooth 29. Respondent was paid $124.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations, as claimed, were present. Importantly, tooth T is the baby tooth that is replaced by tooth 29. Conceivably, tooth T and permanent tooth 29 could be present at the same time with the permanent tooth coming in over or under the baby tooth. It is unclear whether tooth 29 had erupted. However, tooth T was likely to exfoliate within 6 months of the time the patient was seen by Respondent. Therefore, tooth T should not have been treated by Respondent since the tooth would likely be gone within six months. The clear and convincing evidence showed Respondent fraudulently billed and was paid for services not rendered to Patient S.C. #2, filed false reports of service to Medicaid and gained financially when he was paid for services Respondent did not perform.
PATIENT S.C. #3
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the occlusal surface of tooth A; the
restoration of the buccal surface of teeth B, I, J and L; the restoration of the distal-buccal surface of teeth D and G; the restoration of the mesial-buccal surface of teeth D and G; and, the restoration of the lingual surface of teeth J and K.
Respondent's record of treatment on Patient S.C. #3 reflects that on March 10, 2000, Respondent allegedly restored the occlusal surface of tooth A; the buccal surface of teeth B, I, J and L; the distal-buccal surface of teeth D and G; the mesial-buccal surface of teeth D and G; and, the lingual surface of teeth J and K. Respondent was paid $505.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations were present. Tooth A had a sealant present over either decay or an amalgam. Tooth D showed evidence of a wear pattern which indicated no restoration had been performed on the tooth since such restoration would have interrupted the tooth's wear pattern. Tooth J had extensive decay with no evidence of any restorations. Tooth K had only a sealant on it with decay that had been sealed over on the occlusal side of the tooth. Likewise, tooth L had only a sealant on it. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient S.C. #3, filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT M.J
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the distal-buccal surface of teeth C, D, G and H; the restoration of the mesial-buccal surface of teeth C, D, G and H; and, the restoration of the lingual surface of tooth J.
Respondent's record of treatment on Patient M.J. reflects that on March 17, 2000, Respondent allegedly restored the distal-buccal surface of teeth C, D, G and H; the mesial- buccal surface of teeth C, D, G and H; and the lingual surface of tooth J. All of the restorations were either a multi-surface or one-surface composite resin. Respondent was paid $607.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations were present. Teeth D and G appeared ready to exfoliate at time of examination since their roots were not present. Therefore, there was no justifiable reason to restore either tooth D or G. Finally, tooth J had decay present, indicating no restoration had been performed. Clearly, Respondent fraudulently billed and was paid for services not
rendered to Patient M.J., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT R.P.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of placing a sealant on tooth 18; the restoration of the distal- buccal surface of teeth 6 and 8; and the restoration of the mesial-buccal surface of teeth 6, 7 and 8.
Respondent's record of treatment on Patient R.P. reflects that on February 23, 2000, Respondent allegedly placed a sealant on tooth 18; restored the distal-buccal surface of teeth 6 and 8; and the mesial-buccal surface of teeth 6, 7
and 8. Respondent was paid $373.00 by Medicaid for these procedures.
Examinations by the Department's experts revealed no restorations or sealants were present. There was no indication of any four surface preparation on R.P.'s teeth. However, R.P. testified that something was placed on her teeth which material started coming out of her mouth 10 to 15 minutes after she left the Respondent's office and over the next few days thereafter.
The clear and convincing evidence indicates that this material was the sealant material used by Respondent. The total loss of this material so soon after placement shows Respondent fell below the standard of care in placing a sealant on R.P.'s teeth. The evidence as to the restorations shows Respondent fraudulently billed and was paid for services not rendered to Patient R.P., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT A.S.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 14, 19 and 30, and the restoration of the occlusal surface of tooth 19.
Respondent's record of treatment on Patient A.S. reflects that on March 3, 2000, Respondent allegedly restored the lingual surface of teeth 14, 19 and 30, and the occlusal surface of tooth 19. Respondent was paid $155.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations were present. Tooth 30 had multiple areas which
indicated the presence of untreated decay around an older resin filling on the occlusal surface. Tooth 19 had untreated decay. None of the teeth treated by Respondent showed evidence of any preparation for restoration. Given these facts, Respondent fraudulently billed and was paid for services not rendered to Patient A.S., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT J.A.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the occlusal surface of teeth T and S, and restoration of the buccal surface of tooth T.
Respondent's record of treatment on Patient J.A. reflects that on March 23, 2000, Respondent allegedly restored the occlusal surface of teeth T and S, and the buccal surface of tooth T. Respondent was paid $93.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations were present. Moreover, no preparation of the tooth's surface was done on either tooth T or S. For Patient
J.A., Respondent fraudulently billed and was paid for services not rendered to Patient J.A., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT R.M.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the distal-buccal surface of teeth D, E, F and G, and the restoration of the mesial-buccal surface of
teeth D, E and F.
Respondent's record of treatment on Patient R.M. reflects that on March 25, 2000, Respondent allegedly restored the distal-buccal surface of teeth D, E, F and G, and the mesial-buccal surface of tooth D, E and F. Respondent was paid
$504.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations or preparations for such were present. However, the first expert examination of the patient revealed a small amount of composite material on the buccal and lingual surface of tooth D. By the second examination no composite material was present on tooth D, indicating that Respondent failed to
competently practice dentistry in regards to tooth D. Finally, the evidence showed that this patient had rampant decay and should have been treated with stainless steel crowns, again indicating incompetence or malpractice. As to the other teeth and restorations, the evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient R.M., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT E.I.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the mesial-buccal surface of teeth C, D
and F, and the restoration of the distal-buccal surface of teeth C and F.
Respondent's record of treatment on Patient E.I. reflects that on April 5 and 19, 2000, Respondent allegedly restored the mesial-buccal surface of teeth C, D and F and the distal-buccal surface of teeth C and F. Respondent was paid
$360.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations were present as billed for by Respondent. Additionally, the patient's lower cuspid makes contact on the mesial corner of tooth C and the incisal tip of the lower cuspid almost touches the gingival mesial area of tooth C. This overlapping of teeth relative to tooth C makes it impossible for a mesial restoration to be retained without adequate preparation being done on the mesial of tooth C. There was no four-surface preparation on tooth C. Finally, tooth D had evidence of a remnant of filling material on the mesial surface of the tooth. However, no decay was evident in the intact line angle of tooth D and no preparation was done on the mesial of tooth D, indicating no restorations were present on the mesial or distal surface of the tooth. All of these facts show that Respondent fraudulently billed and was paid for services not rendered to patient E.I., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT S.G.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of
the restoration of the buccal surface of teeth S and T, and the restoration of the occlusal surface of teeth S and T.
Respondent's record of treatment on Patient S.G. reflects that on April 21, 2000, Respondent allegedly restored the buccal surface of teeth S and T and the occlusal surface of teeth S and T. Respondent was paid $124.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations or preparations were present. Both teeth had deep unfilled occlusal grooves indicating no restorations were performed. However, S.G. was an uncontrolled behavior management problem during these examinations. S.G. would not let the Department's experts examine her teeth in a clinical fashion but only afforded these experts a quick look at her teeth or would not let the expert look at all. Therefore, these examination results are of limited value. On the other hand, testimony of a previous treating dentist showed that when he saw the patient two weeks prior to the Respondent treating the patient, the only teeth in need of treatment were teeth I and S. No other decay was visible in the patient's mouth. The Respondent had noted decay on ten other teeth in S.G.'s mouth.
Finally, the parent of S.G. testified that S.G. was only treated by the Respondent for approximately ten minutes, but that the tooth that was hurting S.G. and had prompted the
visit to the dentist was fixed. Ten minutes is not generally a long enough period of time for the procedures and examination allegedly performed on the patient. However, given this testimony, the evidence was neither clear nor convincing that Respondent fraudulently billed and was paid for services not rendered to Patient S.G., or otherwise was guilty of any of the other alleged violations relating to his treatment of S.G. PATIENT S.L.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the occlusal surface of teeth A, J, K, S
and T; the restoration of the lingual surface of teeth J and T; and the restoration of the buccal surface of teeth K and T.
Respondent's record of treatment on Patient S.L. reflects that on April 25, 2000, Respondent allegedly restored the occlusal surface of teeth A, J, K, S and T; the lingual surface of teeth J and T; and the buccal surface of teeth K and
T. Respondent was paid $279.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed that, except for the lingual surface of tooth K, no restorations
were present. Tooth J had decay. The evidence was not clear whether tooth K had a poor restoration or a sealant on it.
Tooth K had decay indicating no restorations had been performed by Respondent. On the whole, the clear and convincing evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient S.L., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT P.F.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 2, 3, 15, 19 and 30; the restoration of the buccal surface of teeth 2, 3
and 30; and the restoration of the occlusal surface of teeth 4, 15, 18 and 30.
Respondent's record of treatment on Patient P.F. reflects that on May 4, 2000, Respondent allegedly restored the lingual surface of teeth 2, 3, 15, 19 and 30; the buccal surface of teeth 2, 3 and 30; and the occlusal surface of teeth 4, 15,
18 and 30. Respondent was paid $372.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed no restorations or preparations were present as billed by the Respondent. Tooth 3 showed untreated decay. Tooth 19 and 30 had amalgam fillings which were in place prior to Respondent's treatment.
Finally, the parent of Patient P.F. testified that Patient P.F. told her that no fillings were done to his teeth. Given these facts, Respondent fraudulently billed and was paid for services not rendered to Patient P.F., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT L.S.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 2, 3, 15, 19, 30 and 31; the restoration of the buccal surface of teeth 3, 18, 19 and 31; and the restoration of the occlusal surface of teeth 13, 14, 15 and 18.
Respondent's record of treatment on Patient L.S. reflects that on May 8, 2000, Respondent allegedly restored the lingual surface of teeth 2, 3, 15, 19, 30 and 31; the buccal
surface of teeth 3, 18,19 and 31; and the occlusal surface of teeth 13, 14, 15 and 18. Respondent was paid $465.00 for these procedures by Medicaid.
Examinations by the Department's experts revealed that, other than noted below, no restorations or preparations were present. Teeth 14 and 15 had some restoration material present in the distal-occlusal pit. The resin in the distal- occlusal pit on tooth 15 was loose and came out easily when scraped with the exploring point. There was no preparation evident on the occlusal surface of tooth 15. Tooth 30 had some restorative material on the buccal and occlusal surface. The buccal resin was poorly formed. Teeth 30 and 18 showed untreated decay on the occlusal surface. There was some resin material on the mesial-occlusal surface of teeth 2 and 3. However, the evidence showed that the unusual amounts of alleged lingual restorations on this patient were improbable since the tongue is a natural cleaner of the lingual area on these teeth.
Finally, the parent of Patient L.S. testified that no drill was used on Patient L.S.'s teeth and that Respondent did not discuss the treatment with the parent. Given these facts, the evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient L.S., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform.
PATIENT N.J.
The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of tooth 3; the buccal surface of tooth 30; and the occlusal surface of tooth 30. Respondent was paid $93.00 for these procedures by Medicaid.
Respondent had no record of treatment on Patient N.J. and had no personal recollection of Patient N.J. Without such records Respondent cannot adequately formulate a defense to the charges related to his treatment of Patient N.J., determine the pre-treatment state of Patient N.J.'s teeth, or determine the results of his examination of Patient N.J.
Examinations by the Department's experts revealed no restorations were present. However, without the patient records for Patient N.J., it cannot be determined whether Respondent is guilty of any violations of Chapter 466, Florida Statutes.
Petitioner's experts saw the above patients between one and nine months from the date that Respondent allegedly treated them. Such a lapse of time would not generally produce the degree of untreated decay or the loss or lack of restorations observed in these patients. Preparations for
filling cavities is generally permanent. Most of these patients showed no preparation of the surface of the tooth for restoration.
With the exception of Patients S.G. and N.J., Respondent's treatment of these patients was below the standard of care since in most instances, no treatment was rendered to these patients where needed. Respondent acted fraudulently when he represented that services were performed when such services had not been performed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.569 and Section 120.57(1), Florida Statutes.
License revocation proceedings are penal in nature.
The burden of proof is on Petitioner to establish by clear and convincing evidence the truthfulness of the allegations in the Administrative Complaint. Department of Banking and Finance,
Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Respondent is charged with violating Section 455.624(1)(n), Florida Statutes (1999), for exercising influences on patients for financial gain of the licensee and
Section 466.028, Florida Statutes, which provides in pertinent part:
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 or records shall include only those which are signed in the capacity as a licensee;
* * *
(t) For engaging in fraud, deceit, or misconduct in the practice of dentistry for billing Medicaid for services and treatments not rendered to the patient;
* * *
(x) For 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 not limited to, the undertaking of a diagnosis and treatment for which the dentist is not qualified by training or experience or being guilty of dental malpractice;
Penalty
When the board finds any applicant or licensee guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:
* * *
Revocation or suspension of a license.
Imposition of an administrative fine not to exceed $3,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the licensee on probation for a period of time and subject to such conditions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate competency through a written or practical examination or to work under the supervision of another licensee.
Restricting the authorized scope of practice.
In this case, Petitioner has demonstrated by clear and convincing evidence that the Respondent violated Section 455.624(1)(n), Florida Statutes, when he sent out a driver to gather up patients, not treating those patients, and billing and being paid for services not rendered to those patients. Further, in 127 separate occurrences, Respondent violated Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry when he billed Medicaid for services he did not render; violated Section 466.028(1)(t), Florida Statutes, by engaging in fraud, deceit, or misconduct in the practice of dentistry when he billed Medicaid for services and treatments not rendered to patients; and violated
Section 466.028(1)(j), Florida Statutes, by filing false reports when he billed Medicaid for services or treatment not rendered to patients. Finally, Petitioner demonstrated that Respondent failed to properly treat and diagnose these 19 patients in violation of Section 466.028(1)(x), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standards of performance when he fraudulently treated these patients.
Petitioner has promulgated rules addressing the penalty for violations of the dentistry practice act. The disciplinary guidelines are found at Rule 64B5-13.005, Florida Administrative Code. For violations of Sections 466.028(1)(l), (j), (t), and (x), Florida Statutes, and a violation of Section 455.624(1)(n), Florida Statutes, the
penalty provided by the rule ranges from probation to revocation of license. Additionally, for a licensee committing violations enumerated in Section 466.028, Florida Statutes, the rule requires a reprimand and an administrative fine not exceeding
$3,000.00 per count or offense to be imposed unless mitigating factors are demonstrated. The minimum fine for 127 separate violations is $381,000.00.
Finally, in accordance with the disciplinary guidelines, several aggravating factors should be considered, including but not limited to the severity of the offense, the
number of repetitions of the offenses, the actual physical damage, and the actual knowledge of the licensee pertaining to the violations. In this case, there were no mitigating factors. Moreover, the multiple and knowing violations constituting fraud warrant revocation of Respondent's license and an increase in the amount of the fine.
Law,
Based on the foregoing Findings of Fact and Conclusions of
It is RECOMMENDED that the Respondent's license be revoked
and that he pay a penalty of $500,000.
DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida.
DIANE CLEAVINGER
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 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2001.
COPIES FURNISHED:
Douglas L. Stowell, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302
Tracy J. Sumner, Esquire
Agency for Health Care Administration Post Office Box 14229
Mail Stop 39
Tallahassee, Florida 32317-4229
William H. Buckhalt, Executive Director Board of Dentistry
Department of Health
4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 12, 2002 | Agency Final Order | |
| Dec. 04, 2001 | Recommended Order | Evidence demonstrated dentist did not perform treatments (fillings) he had billed Medicaid; recommend revocation and fine. |
