Jun 5 2009 13:26 Jun § 2009 13:23 P.O5 wo STATE OF FLORIDA | DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, | PETITIONER, | v. CASE NO. 2005-70555 SCOTT WITTMER, D.C. | : | RESPONDENT, | ADMINISTRATIVE COMPLAINT : Petitioner, Department of Health, by and through Its undersigned counsel, files this Administrative Compiaint before the Board of Chiropractic Medicine against Respondent, Scott Wittmer, D.C. In support Petitioner alleges: | 1. Petitioner is the state department charged with regulating the practice of Chiropractic Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2, At all times material to this Complaint, Respondent was a chiropractic physician within the State of Florida, having been Issued license number CH 4079 on or about May 27, 1982. , mas, 20-72-G Jun 5 2009 13:26 Jun § 2009 13:23 P. O06 ~ \w/ 3. Respondent’s address of record is 5435 Lake Howell Road, Winter Park, Florida 32792. ! 4. Respondent is the owner of Wittmer Chiropractic Clinic, located in Bradenton, Florida. kL ALLE 5. Respondent was the clinical director and manager for the Complete Wellness Centers (CWC) of Winter Park from on or about 1997 to on or about 2000, | 6. Respondent terminated his contract with Complete Wellness Centers on or about 2001 and formed Complete Wellness Medical Center of Winter Park (CWMC), which he owned. | 7, Respondent is also the owner of Rehabilitation Center in Winter Park, Florida. | 8. Respondent employed Sarah Tracey Rhodes, M.D, as an employee of Complete Wellness Centers and subsequently as an employee of Complete Wellness Medical Center of Winter Park from on or about 1997 until on or about 2003. 9. During the time that Respondent was the owner of Wittmer Chiropractic Clinic, Respondent self-referred patients from Wittmer Chiropractic Clinic to Complete Wellness Centers (CWC) and to Complete J:\PSU\Allied Heaith\Cecelia\Chiropractic Cases\wittmer, Scott\wittmer AC,doc Pe Pee Jun 5 2009 13:26 Jun § 2009 13:23 P.O? ~ be 3. Respondent's address of record is 5435 Lake Howell Road, Winter Park, Florida 32792. 4. Respondent is the owner of Wittmer Chiropractic Clinic, located in Bradenton, Florida. __..... 5... Respondent was the clinical director and manager for the Complete Wellness Centers (CWC) of Winter Park from on or about 1997 to on or about 2000. | , 6. Respondent terminated his contract with Complete Wellness Centers on or about 2001 and formed Complete Wellness Medical Center of Winter Park (CWMC), which he owned. : 7. Respondent is also the owner of Rehabilitation Center in Winter Park, Florida. | 8. Respondent employed Sarah Tracey Rhodes, M.D, as an | employee of Complete Wellness Centers and subsequently as an employee of Complete Wellness Medical Center of Winter Park from on or about 1997 UNtIT OF: OF ABOU 2003: = emer | 9. During the time that Respondent was the owner of Wittmer Chiropractic Clinic, Respondent self-referred patients from Wittmer Chiropractic Clinic to Complete Wellness Centers (CWC) and to Complete J:\PSU\Allied Health\Cecella\Cases\wittmer, Seott\wittmer AC.doc 2 | | : | | ; Jun 5 2009 13:26 Jun § 2009 13:24 P. 08 bd Ne Weliness Medical Center of Winter Park (CWMC), for treatment without : : i disclosing that he had an interest in elther of the clinics. 10. Respondent referred patients to a medical doctor that was employed by the clinic Respondent owned. 11. These referrals to his personal owned ‘clinic were for financial gain, and not for the benefit of the patients. 12. Once Respondent referred.patients.to the medical. doctor at the clinic he owned for further treatment, Respondent continued treating the patients by providing manual therapy. 13. During the time Respondent provided manual therapy, Respondent falled to document in his medical records the treatment progress for patients LB, JM, and/or JS. 14. Respondents medical records are substandard an do not support the_amount of treatment or diagnostic evaluation conducted by Respondent for any of the patients when he provided manual therepy. 15.. Respondent's. records do not contain the, sig ature of Respondent as the treating chiropractic physician, nor do the records have his name or the clinic's name, address, or other identifying information on them, J:\PSU\Aliied Mealth\Cecelia\Cases\wittmer, Scott\wittmer AC.doc Jun 3 2009 13:27 Jun § 2009 13:24 P.09 ~ ow] 15. Respondent's records do not contain any SOAP notes (Subjective Objective Assessment Plan) that justify the evaluation, progress, or treatment plan for any of the patients he treated when serving as a technician. 16. Respondent performed chiropractic services as: if he were a technician, then billed for the services under Medical billing CPT codes ---99201.and-97140. ..... -- .- : 17. Current Procedural Terminology codes, or CPT codes, are a listing of descriptive terms and identifying codes for reporting medical services and procedures. The purpose of CPT is to provide a uniform language that accurately describes medical, surgical, and diagnostic services, and thereby serves as an effective means for reliable nationwide ~—eonimunication among physicians and other healthcare providers, patients, and third parties. CPT is the most widely accepted medical nomenclature ~-ysed-to-report-medical procedures-and-services-under-public and private health. insurance programs. | : oo === [18=—"Resperident should have billed for the services he provided under chiropractic billing code 98941. | | 19. Medical billing codes 99211 and 97140 pay $90, $30 more than the chiropractic billing code 98941 that should have been used. J:\PSU\Allied Health\Cecelia\Cases\wittmer, Scott\wittmer AC.doc i | 4 Jun 3 2009 13:27 Jun § 2009 13:24 P.10 ~ Nl FACTS RELATING TO PATIENT LB 20 =‘ Patient LB was seen by the Respondent for an Initial visit on or about January 20, 2000 for treatment of neck and back pain after LB sustalned injuries in a motor vehicle accident on or about December 13, 1999, | __21, Respondent referred patient LB to the Complete Wellness Medical Center.on-or-about-March.14, 2000... 22.0 0. 22. . Patient LB was being treated by Sarah Tracey Rhodes, MD, an émployee of Complete Wellness Medical Center. 23. Respondent failed to -disclose to. patient LB that he had an ownership interest in Complete Wellness Medical Center 24, During the time patient LB was being treated by Dr Rhodes, patient LB was prescribed rehabilitation therapy three times weekly “for eight. weeks,..massage therapy one-time weekly; and joint mobilization - -—-—precedures two-to three-times-a-week-with passive therapy-to-follow. : | ..25,...Patient LB was treated by Dr. Rhodes from on or about March —=54;-2000-UNGI-6n OF about AUgUsE 27,2003, ——— oe. | 26. During this time, patient LB was seen approximately 50 times for treatment at Complete Wellness Center. 2:\PSU\Allied Health\Cecelia\Cases\Wittmer, Scott\Wittmer AC.doc Jun 5 2009 13:27 Jun 5 2009 13:25 Pld - Nal 27. During these visits, check off style notes were used to document patient LB’s visits. 28. No SOAP notes were used to documents LB’s visits. | 29. ‘The check-off sheets that correspond to the dates of billing for patient LB under Complete Wellness Center were kept in the files of | __Wittmer Chiropractic Clinic, 0, The. services provided to patient LB were billed under Complete Wellness Center's billing ledger as though a technician performed the services. a | 31... In reality, Respondent performed the manual therapy techniques to patient LB, 32. Respondent billed for the services he provided to patent LB andere auspces ofthe medica doctor's prescptions: ———— _33.__ The billing used under the medical doctor's prescriptions paid + —merethan the biling-normallyused-for- chiropractic biling---~ - 4 — 34....When Complete Wellness Center closed, patent LB was transferred-back-te-Raspondent-at-Wittmer: Chiropractc-Cinic. na 35. There was no disclosure to patient LB during these treatments and transfers that Respondent had ownership rights and interests in both —hicc——_ i = JAPSU\Allied Hesith\Cecelia\Cases\wittmer, Seott\Wittmer AC.doc | 6° Jun 3 2009 13:27 Jun § 2009 13:26 P.12 baal Neel 36. The medical records for patient LB do not accurately and completely document the course of treatment utilized in the’ care of patient B. : FACTS RELATING TO JM | 37. Patient JM was seen by Respondent at Wittmer Chiropractic Clinic on or about June 3, 2003. 38, During, the_Initial_ visit, Respondent determined that the patient had a diagnostic differential that Included 19 different diagnoses, | 39.’ ‘Patient JM's treatment plan included inferential current therapy for 15 minutes to the cervical and lumbar spine and diathermy to the thoracic spine for a minimum of two weeks. A luribar support and lumbar MRI wére also ordered with contrast. oe 49 —Patient-3M-was-referred- tothe Complete Welles" Center specifically to see Dr. Rhodes because there were medical concerns that I | i -—heeded-to-be-addressed-per patient JM's request — ot _41. .Respondent’s. notes. Indicated. that the referral was being made _from-Wittmer:Chiropractic-Clinic-to-Dr.-Rhodes, specifically. | - 42. Respondent falled-to disclose in: writing-to patient-JM that he had an ownership interest in Complete Wellness Center. JAPSUVAllied Health\Cecelia\Cases\wittmer, Seott\wittmer AC.doc : 7 Jun 3 2009 13:28 Jun § 2009 13:26 P.13 ~ Ne 43. Once patient was referred to Dr. Rhodes, the only records kept regarding patient JM's visits were check-off records, There were no SOAP notes kept with regards to JM’s treatments. . | 44. Patient JM was seen by Dr, Rhodes at Complete Wellness Center on or about June 4, 2003. Patient JM was given a treatment plan of passive physical therapy including electrical muscle stimulation, diathermy, and..joint. -mobilization_.procedures..three.. times -a_week,. in addition to prescriptions for Celebrex, Skelaxin, and Percocet. 45, Patient JM had an MRI performed on or about June 9, 2003 that was ordered by Respondent but reviewed with patient JM on or about June 17, 2003, by Dr. Rhodes. 46. According to check-off sheets, Patient JM was seen approximately 28 tities between on or about October 6, 2003 and on or about February 3, 2005. . : “4 Except forthe -cheek-off-sheets;—there—are no! biling records from.Wittmer Chiropractic Clinic or Complete Wellness Center to show how - =the eaten patient received was-bited ———— = | 48. “Despite the lack of records, Wittmer Chiropractic’ Clinic was paid $6,602.00. and Complete Wellness Center was paid $7,314 for services “provided to patient JM. J:\PSU\Allied Health\Cecetia\Caces\Wittmer, Scott\Wittmer AC.doc 4 g lun s 3008 13:28 Pl1d4 New el 49, The medical records for patient LB do not. accurately and completely document the course of treatment utilized in the care of patient JB. FACTS RELA TING TO PATIENT LS 50, Patient LS was first seen by Wittmer Chiropractic Clinic on or about February 26, 2003 as a result of injuries sustained inva mo vehicle - accident.on_oraboutJuly8,2002, =... : 51. At her initial visit, patient LS was seen for die pain on the left, ‘lower-back and jeg pain-on the left; sensory tingling"of the entire left _ Side of her body; and problems sleeping due to. pain.and- numbness on the left side of her body, a 52. After the initial examination, Respondent prescribed a treatment ~plarr that inctaded physicat therapy that would include: interferentiat current therapy to the cervical and lumbar spine, diathermy to the thoracic spine, ~ —hormetee-therapy-of 45 minutes intervals-on;-45 minute intervals off. _53, There is an additional note.on or about February 27, 2003, that cludesanipulations=of:the sacrum, lumbar, cervical and-thoracic spine-—-- = PUT me men ce gerne core | 7 54. On or about March 4, 2003, there is another treatment plan for LS outlined in Respondent's notes. This plan outlines a treatment visit J:\PSUMAllled Health\Cecelia\Cases\Wittmer, Soott\wittmer AC.doc 9 Jun 3 2009 13:28 Jun § 2009 13:26 P.15 i oe | frequency of three times a week until re-examination, though there is no notation as to when the re-examination willbe. | 55. There are no billings made to patient LS for or the Wittmer Chiropractic Clinic after on or about March 4, 2003." | 56. The first billings for patient LS from the Complete Weliness Clinic begin on or about. March 5, 2003, though there is nothing in the -.--Notes.of patient_LS that show.a_referral-to the Complete. Wellness.Clinic. 57. The records for patient LS from Complete Wellness Center times a-week until-on or-about-April-29, 2003, 58. Between on or about March 5, 2003 and on or about April 29, 2003, patient LS was treated with manual therapy technique approximately — ~ 20 times at Compiete wellness Center: 59. During these treatments, Respondent acted as a technician and billec-for-manual-therapy treatment-under-CPT-code-97140,--—~ : 60. ...Rach time. Respondent billed under CPT code 97140, the charge | i Te QUINONE om | 61. Petitioner realleges paragraphs one (1) through suty (60) as though fully-set-forth herein. J:\PSU\Aled Health\Cecelia\Cases\wittmer, Scott\Wittmer AC. dec Jun 3 2009 13:29 Jun 6 2009 13:26 P.16 ‘ee! Sea | 62. Section 460.413 (1m), Florida Statutes (2000)-(2006), provides that failing to keep legibly written chiropractic medical records that identify clearly by name and credentials the licensed chiropractic physician rendering, ordering, supervising, or billing for each examination or treatment procedure and that justify the course of treatment of the patient, including but not limited to patient histories, examination of results, test . Sesuits, X rays, and diagnosis of a disease, condition, or injury subjects a chiropractor to discipline. 637 Rule 6482-17,0065; Florida Administrative” Cod;—(F.A:C), sets forth the.minimal recordkeeping standards as-set-forth below in pertinent part: , | a. — Rule 64B2-17,0065(2) (b), RA.C., states that medical records ——areused-to-farnishr documentary evidence of-the-course of the patent’ medical evaluation, treatment, and change in condition. | ~——_--b-- —Rule- 64B2-17,6065(3),FA:C;; statesthatthe-medical record shall. be. -legibly..maintained_.and.shall. contain. sufficient . Information to “Identify the-=patient— Supper —the Crags — justify —te=treatment—and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of “drugs dispensed --or administered; -reports—of- consultations -and 2:\PSU\Allied Health\Cecelia\Casee\wittmer, Scott\Wittmer AC.doc Jun 3 2009 13:29 Jun § 2009 13:26 PL? ‘tt’ ; | qn hospitalizations; and copies of records or reports or other: documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. Initial and follow-up services (dally records) shall consist of documentation to justify care. c. “Rule 64B2-17.0065(6), FA.C, states that once a treatment plan __Js-established, dally_records. shall. include. subjective complaints, objective findings, assessments, treatments provided, and periodic réassessments as ndiedteds ae -64,-—Respondent -violated Section 460.413(1)(m) in the following ways: | | a) by failing to keep legible written medical records that justify the ~~ Srriount of treatment or the amount of diagnostic evaluation conducted by the Respondent for patients LB, JM, or LS; anny failing to—keep written “documentation com the treatment provided. patients LB, JM,-or LS; - €}— by—fallingte record SOAP notes that justify ‘the evaluation, progress, or treatment plan for patients LB, JM, or LS; t | d) failing to maintain records that contain the signature of the ~ctreating-chiropractic physician; | i | | i J:\PSU\allied Health \Cecelia\Cases\Wittmer, Scott\wittmer AC,doc 1 iad hott |i Jun 3 2009 13:29 Jun 6 2009 13:26 P.18 ew | aw, ! | e) failing to maintain records that contain the name of the treating chiropractic physician or the chiropractic clinic's name, address, or other identifying information; or a | f) failing to adequately detail the services and treatments provided to patients LB, JM, or LS. ___ 460.413(1)(m), Florida Statutes, (2000)-(2006).__.-... -. COUNT TWO : -66:~— Petitioner Feall@ges paragraphs one (1) ‘through ‘skxty"(60) as -though-fully-set-forth-herein--- — ~- | 67, Section 460.413(1)(n),Florida Statutes,(2005)-(2006), subjects a chiropractic physician to discipline for exercising Influence on the patient or-tent in such a manner as to exploit the patient or citent for firarrcial gain of the licensee or of a third party which shall include, but not be limited:-to;-the promotion-orsale-of services;-goods-or-appliances;-or-drugs. oe ee 68.,-Rule ...64B2217,005, —-F.A.C.,.--states - ‘that. . overutilization of "SS ehIFOpraetie Services goods, OF FaSeng constitutes exploktation-of-2 patient for financial gain. 69. According to Rule 64B2-17.005,F,A.C,,\ overutilization occurs --when;-among- other things; the-written: chiropractic-records-required to be i \ 2:\PSU\Alied Health\Cecelia\Cases\Withmer, Scott\Wittmer AG.doc - . B i 4: i i [ fi Jun 3008 13:27 . P.1g ‘ew! ed kept by subsection 460.413(1)(m), Florida Statutes, do not justify or substantiate the quantity or number of. chiropractic services, practices rendered, or goods or appliances sold by a chiropractic physician to a | patient. | 70, Respondent violated Section 460. 413(4)(n), Florida Statutes (2000)-2006), by; oe one). Keeping: medical records that _do_not justify or substantiate the quantity or.the number of chiropractic services rendered to patients LB, JM, ‘or-LS; -b) . referring. patients to Complete. Wellness: Center for |treatment then continuing to treat them as the technician instead of the chiropractor so that he could bill a higher CPT code for his services; or 7) for documenting anc-bitting patients t8;IM; or t$-as though the Dr. Sarah Tracey Rhodes, M.D. was performing services when Respondent an was actually-performing-services-as-a technician. ~#1,....Based.on..the foregoing, Respondent has violated Section 460, S13 ese Stats 2000) (200) o-epotng pert JM, or LS for financial gain. EEE GOUNT THREE J:\PSU\Allied Health\Cacelis\Casas\Withmer, Scott\Wittmer AC.doc BG : i 14 Jun 3 2009 13:30 Jun § 2009 13:27 ~ . ~ P. 20 72. Petitioner realleges: paragraphs one @) through sry (60) as though fully set forth herein. 73. Section 460.413(1)(k), Florida Statutes (2000)-(2006), subjects a@ chiropractic physician to discipline for making misleading, deceptive, untrue, or fraudulent representations in the practice of chiropractic medicine. = ----—-74.._Respondent_billed for_manual. therapy treatments for patients LB, JM, or LS, after he had referred each patient ito Complete Center— ee neue - Adee eetmmmenee ce tie ene ae Wellness 75,---Further Respondent billed the services provided to patients LB,: JM, or LS as if he was a technician employed by Dr Sarah Tracy Rhodes at Complete Wellness Center. 77. Based on the foregoing, Respondent has vleted Section ~A6OAIBE Ee Fords Statutes, (2000) —(2006)-—— . —=-COUNT. FOUR. ... _ —- ~~though fully set forth herein, 79. Section 460.413(1)(ff), Florida Statutes, (2000)-(2006), ~~ Subjects—e—ticensed “chirepractic—physician—to~discipline--for-violating any J:\PSU\Alied Heaith\Cecelia\Cases\witemer, Scatt\wittmer AC.doc i i} \ | 1 Jun 3 2009 13:30 Jun § 2009 13:27 P. 21 al Ned 79. Section 460.413(1)(ff), Florida Statutes, (2000)-(2006), subjects a licensed chiropractic physician to discipline for violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto. | 80, Section 456.053(5)(a), Florida Statutes (2000) - (2006) states that a health care provider may not refer a patient for the provision of designated-health-services-to-an-entityin-which the health-care provider is “an investor or has an investment interest. | 81. Section 456.053(5)(b), Florida Statutes, (2000) | = (2006) states; ~ That a health care provider may not refer a patient for the provision of any other health care item-or service to an entity in which the health care provider is an investor 1. The provider's investment interest is in registered securities purchased on. a national exchange or over- the-counter market and issued by a Publicly held “corporation: 4, Whose. shares. are_traded on a. national exchange or on the over-the-counter market; and | an | Whose total assets at the end of. the corporation's most recent fiscal quarter exceeded $50 million; or 2. With respect to an entity other than:a’ publicly held corporation described in subparagraph: 1, and a referring provider's investment interest | in: ‘such entity, each of the following requirements are met: | | JAPSU\Allled Héalth\Cecelia\Chirogractic Casas\Wittmer, Scott\Wittmer AC.doc { | : | 16 Jun 3 2009 13:30 Jun § 2009 13:28 P. 22 wl ‘wad a. No more than 50 percent of the’ value of the investment interests are held by investors who are in a position to make referrals to the entity. . - offered to an investor who is in a position to. mak referrals to the entity are no different from the term offered to investors who are not ina pasion to make such referrals. : b. The terms under which an investment interest = c. The terms under which an investment interest is offered to an investor who is in a position to: make referrals to the entity are not related to the previous or ~——expected volume of teferrais- from-that-investor to” the entity. d. There is no requirement that an ‘investor make referrals or be in a position to make referrals to thi entity as a condition for becoming or F remaining an ~investor, 9 ~----- 3. With respect to either such entity ¢ or, publicly held - corporation: | a. The entity or corporation does not loan funds to or guarantee a loan for an investor who isin a position to make referrals to the entity or corporation if the investor uses any part of such loan to obtain the Investment interest. | er The-amount-distributed-to-an-investor representing a return on the investment interest is directly proportional - to the amount of the capital investment, including the fair market value of any preoperational services == créndered, invested-in-the-entity or corporation-by-that——-—- investor, 82, Further, Section 456.053(5)(j), Florida Statutes, (2000) - {2006}: requires-that a health care provider who-meets the-requirements of i i J:\PSU\Allied Health\Cecelia\Chiropractic Cases\Wwittmer, Scott\Wittmet AC.doc Jun 3 2009 13:30 Jun § 2009 13:28 PL 23 New ) | Paragraphs (b) and (i) must disclose his or her investment interest to his or her patients as provided in s. 456,052. | 83. Respondent has referred patients LM, JB, or ‘Ls t Complete Wellness Center without disclosing that he is an investor’ or owner of the clinic. | , | ...84, Based on the foregoing, Respondent. has violated Section » ~460.413C) (fF), Florida. -Statutes,. .-(2000)-(2006),by-- violating. -Section 456.053(5)(a)(b)(j), Florida Statutes (2000) ~(2008), | WHEREFORE, the Petitioner respectfully requests that the Board-of Chiropractic Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of-fees-billed or collected, remedial education and/or any other relief that the Board deems appropriate. L, . SIGNED this 30°’ day of es | __, 2008. wee teen pete vevueeute eee . | Ana M. Viamonte Ros M. dD, MPH x \PSU\Allied Mali \Ceceta\Chropratc Cases\Wittmer, Scott\Wittmer ‘AC.doc Jun 3 2009 13:31 Jun § 2009 13:28 \w/ ww State Surgeon General Cecelia D, Florida Bar No. (0007609 Assistant General Counsel DOH Prosecution Services 4052 ' Bald Cypress Way, Bin DEPARTMENT OF HEALTH Tallahassee, FL: 32399-3265 mt liiedet—— (850) 245-4640 ext 8167_ omens tet cS (850) 246-4682 FAX Pep: 3/:/3{ 0% tere +LaKurse | J:\PSU\Allied Health\Cecelia\Chiropractic Cases\Wittmer, Scott\Wittmer AC,doc PL 2d it “65 Jun 3 2009 13:31 Jun § 2009 13:28 P. 25 nn wi! | NOTICE OF RIGHTS: | | Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 an 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing /is requested. see ee ee es wie sa ae . - vine : . | ___ NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and Prosecution of this matter. ~ Pursuant to Section 456,072(4), Florida Statutes, the Board shall assess costs related to the investigation and Prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other iscipline imposed, J:\PSU\Allied Health\Cecelia\Chiropractic Cases\Wittmer, Scott\Wittmer AC.dac 20

Docket for Case No: 09-003038PL