STATE OF FLORIDA DEPARTMENT OF HEALTH

DEPARTMENT OF HEALTH, PETITIONER,

v. CASE NO.: 2008 18046

WENDY L. FLYNN, D.C.,

RESPONDENT.

·· -- · ADMlNISTRATI-VE COMPLA-IN=f -··· ·

COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Wendy L. Flynn, D.C., and in support thereof alleges:

1. Petitioner is the state department charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florjda Statutes; and Chapter 460, Florida Statutes.

• 2. At all times material to this · Complaint, Respondent was a licensed chiropractic physician within the State .of Florida, having been issued license number CH 5692 on or about August 6, 1987.

  J:\PSU\ Medical\Tobey \ C AS E S\Flynn, Wendy D.C\A.C. Flynn.records.doc 1

  Filed September 16, 2011 9:45 AM Division of Administrative Hearings

  
  

  3. . Respondent's address of record is 3810 S, Florida Avenue, Suite A1 Lakeland, Florida 33813.

  . 4. At all times relevant to this complaint, Respondent was the owner of Flynn Clinic, Inc., and provided care directly to patients. Flynn Clinic had two locations: one at 4120 U.S. Highway North, Suite 200, Lakeland, Florida 33809, and one at 3180 South Florida Avenue, Suite A, Lakeland, Florida 33813.

  1. On or about October 30, 2006, patient JP presented to the

     
     

     Flynn Clinic, Inc., with complaints of neck and back pain radiating in her limbs.

  2. Patient JP was examined by another chiropractor who worked at Flynn Clinic, Inc., who recommended treatments 3 times per week for 12 to 14 weeks with a reevaluation within 4 weeks or 12 to 14 visits.

  3. On or about October 30, 2006, patient JP entered into a care agreement for 26 visits wherein Flynn Chiropractic, Inc., agreed to treat the patient JP for $250 to be paid by patient JP at $30 a week plus the 60% her insurance would cover once her deductible was met.

  4. The agreement further provided that any special financial or hardship agreement made, such as the one contained in patient JP's care

     
     

     agreement, would be voided if the first treatment plan recommended by her doctor was not followed as directed.

  5. Patient JP returned to Flynn Chiropractic, Inc., to receive treatment on the following dates: November 1, 2, 6, 8, 9, 13, 15, 16, 20, 21, 22, 27, 29, 30; December 5, 7, 11, 13, 18, 21, 27, 29, 2006; January 3, 4, 10, 11, 17, 18, 24, 25, 31, 2007.

  6. On or about March 19, 2007, patient JP entered into a second care agreement for 26 visits wherein Flynn Chiropractic, Inc., agreed to treat patient JP for $250 to be paid by patient JP at $40 a month plus the 60% her insurance would cover once her deductible was met.

  7. The agreement further provided that any special financial or hardship agreement made, such as the one contained in patient JP's second care agreement, would be voided if the treatment plan recommend by her doctor was not followed as directed.

  8. Patient JP returned to Flynn Chiropractic, Inc., to receive

     
     

• treatment on the following dates: March 19, 22, 25, 30; April 2, 5, 9, 12,

.16, 19, 23, 30; May 14, 18, 21; July 30; August 7, 16, 22, 30; September

6, 2007.

1. Respondent billed patient JP's insurance company for the care rendered to patient JP.

2. · The daily treatment notes for patient JP often times do not identify the treating physician.

3. The medical records do not justify the types, amount and

   
   

   fr,equency of care provided to patient JP.

4. As the owner of the clinic and/or physici'an who billed patient JP's insurance company, Respondent was required to make sure the records complied with the minimum standards and justified the treatment rendered.

5. On or June 2, 2008, Respondent billed patient JP $9,999.18 for the treatment rendered which was inconsistent with and substantially higher than the terms the care agreements signed patient JP.

   Count One

   
   

6. Petitioner re-alleges and incorporates paragraphs one (1) through seventeen (17) as if fully set forth herein.

7. Section 460.413(1)(i), Florida Statutes (2006)-(2008), subjects a chiropractic physician to iscipline for failing to perform any statutory or legal obligation.

   
   

   20. Section 460.413(1)(m), Florida Statutes (2006)-(2008), 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 results, X rays, and diagnosis of a disease, condition, or injury is grounds for disciplinary action by the Board of Chiropractic Medicine.

   1. Rule 64B2-17.0065, Florida Administrative Code (''F.A.C."), sets forth the minimal recordkeeping standards as set forth below in pertinent part:

      a. · Rule 64B2-17.0065(3), F.A.C., states that the medical record shall be legibly maintained and shall contain sufficient information to identify the patient, support the diagnosis, justify the 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 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 (daily

      
      

      records) shall consist of documentation to justify care.

      b. Rule 64B2-17.0065(4), F.A.C., states

      that all patient records shall include a patient history; symptomatology and/or wellness care; examination finding(s), including X-rays when medically or clinically indicated; a diagnosis; a prognosis; assessment(s); a treatment plan; and, treatments provided.

      c. Rule 64B2-17.0065(5), F.A.C., states all entries made into the medical records shall be accurately dated. The treating physician must be readily identifiable either by signature, initials, or printed name on the record. Late entries are permitted, but must be clearly and accurately noted as late entries and dated accurately when they are entered into the record.

      d. Rule 64B2-17.0065(6), F.A.C., states

      t hat QDJ: 9_J f E_;_at rriE_;nt p l9ri i (=;St 9bli_s_QE_;d, daily records shall include: (a) Subjective complaint(s);

      (b) Objective finding(s); (c) Assessment(s); (d)

      Treatment(s)	provided,	and	(e)	Periodic
      reassessments	as indicated.

      
      

   2. As the owner of Flynn Chiropractic, Inc., and/or the physician

      
      

      -- who billed patient JP's insurance, Respondent had a legal obligation to ensure that patient JP's records complied with the standards outlined in Section 460.413(1)(m), Florida Statutes (2006)-(2008), and/or Rule 64B2- 17.0065, F.A.C.

   3. Patient JP's medical records failed to comply with Section 460.413(1)(m), Florida Statutes (2006)-(2008) and/or Rule 64B2-17.0065, F.A.C., in one or more of the following ways:

      
      

      1. By often times not identifying the treating physician by name or initials; or

      2. By failing to justify the medical necessity of the amount, types and frequency of care provided to patient JP.

   4. Based on the · foregoing, Respondent violated Section 460.413(1)(i), Florida Statutes (2006)-(2008), by failing to comply with any statutory or legal obligation.

      Count Two

      
      

   5. Petitioner re-alleges and incorporates paragraphs one (1) through seventeen (17) as if fully set forth herein.

   6. Section 460.413(1)(n), Florida Statutes (2006)-(2008), subjects a chiropractor to discipline for exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include but not be limited to, the promotion or sale of services, goods, or appliances, or drugs.

   7. Rule 64282-17.005(1), F.A.C., states that the overutilization of chiropractic services or practice by exercising influence on a patient in such a manner as to exploit the patient for financial gain of a licensee or a third party is prohibited by Section 460.413(1)(n), Florida Statutes.

      
      

   8. Overutilization of chiropractic services or practice is defined as services or practices rendered, or goods or appliances sold by a chiropractic physician to a patient for financial gain of the chiropractic physician or a third party which are excessive in quality or quantity to the justified needs of the patient.

   9. Rule 64B2-17.005(3)(a), F.A.C., states that overutilization

      
      

      occurs when the written chiropractic records, required to be 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.

   10. Respondent violated Section 460.413(1)(n), Florida Statutes, through one or more of the following actions:

       1. By utilizing contractual terms which required patient JP to complete all recommended care or face substantial higher bills;

       2. By billing patient JP in higher amounts that were inconsistent with and higher than the terms of her care agreements; or,

          
          

       3. By billing patient JP's insurance company for amounts, types and frequency of care that was not justified by the medical records.

   11. Based on the foregoing, Respondent has violated Section 460.413(1)(n), Florida Statutes (2006)-(2008).

WHEREFORE, 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.

SIGNED this l Z '1"1,, day of   14_0<_,=

  ,, 2009.

Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon General

FILED DEPARTMENT OF HEALTH

DEPUTY CLERK

3

CLERK 'f<_cufuil,13 vook-1'

DATE '\2-=0 9'

PCP: 3/10/09 Kirby & Mathesie

TobeySchtz

Assistant General . unsel DOH Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 0542131

(850) 245-4640 ext. 8176

(850) 245-4684 FAX

NOTICE OF RIGHTS

Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 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.

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 discipline imposed.

Docket for Case No: 11-004671PL