v. CASE NO.: 2008-21377
WENDY L. FLYNN, D.C., RESPONDENT.
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:
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.
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.
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Filed September 16, 2011 9:55 AM Division of Administrative Hearings
Respondent's address of record is 3810 S. Florida Avenue, Suite A, Lakeland, Florida 33813.
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.
On or about April 25, 2007, patient LG. presented to the Flynn Clinic, Inc., with complaints of law back pain radiating down her left leg.
Patient LG. was examined by another chiropractor who worked at Flynn Clinic, Inc., who recommended treatments 3 times per week for 12 to 14 visits with a reevaluation within 1 month or 12 to 14 visits.
Patient LG. was diagnosed with the following: cervical intervertebral disc disorder with myelopathy, thoracic intervertebral disc disorder with myelopathy, lumbar disc disorder with myelopathy, myofascitis at the cervical, thoracic and lumber, cervicocranial syndrome, sciatic neuritis.
The diagnoses to Patient L.G.'s cervical and thoracic areas are not justified.
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Patient LG. returned to Flynn Chiropractic, Inc., to receive treatment on the following dates: May 2, 3, 6, 17, 18, 21, 23, 25, 29, 30, 2007.
Patient LG. was treated by Respondent on the following dates: May 17, 18, 23, 25, 29, and 30, 2007. On all other dates of service Patient LG. was treated by another chiropractic physician that worked in Respondent's office.
Respondent and/or Respondent's clinic billed Patient LG.'s third party-payor and/or Patient LG. for the care rendered to Patient LG.
Treatment for each date of service generally consisted of the following: a chiropractic adjustment to 3 to 4 spinal regions, an extremity adjustment, lumbar and cervical interferential treatment, full spine myofascial release, trigger point therapy, and full spine mechanical.traction. Treatment also sometimes included manual traction as well.
Treatments for myofascial release and trigger point therapy are considered duplicative and are not necessary on the same treatment date.
Treatments for both manual traction and mechanical traction are considered duplicative and are not necessary on the same treatment date.
The extremity adjustments provided to patient LG. were not justified.
Respondent billed for providing a surface electromyograph scan
to patient LG. on May 18, 2007.
The May 18, 2007, surface electromyograph scan was not justified by the medical records.
Respondent billed for providing surface electromyograph to patient LG. on May 29, 2007.
The May 29, 2007, surface electromyograph was not justified by the medical records.
The daily treatment notes for patient LG. often times do not identify the treating physician.
The medical records do not justify the types, amount and frequency of care provided to patient LG.
As the owner of the clinic and/or physician who billed patient
L.G.'s insurance company, Respondent was required to make sure the records complied with the minimum standards and justified the treatment rendered.
Count One
Petitioner re-alleges and incorporates paragraphs one (1) through twenty-two (22) as if fully set forth herein.
Section 460.413(1)(i), Florida Statutes (2007), subjects a chiropractic physician to discipline for failing to perform any statutory or legal obligation.
Section 460.413(1)(m), Florida Statutes (2007), 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.
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
that once a treatment plan is established, 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.
As the owner of Flynn Chiropractic, Inc., and/or the physician who treated patient LG., Respondent had a legal obligation to ensure that patient LG.'s records complied with the standards outlined in Section 460.413(1)(m), Florida Statutes, and/or Rule 64B2-17.0065, F.A.C.
Patient LG.'s medical records failed to comply with Section
460.413(1)(m), Florida Statutes and/or Rule 64B2-17.0065, F.A.C., in one or more of the following ways:
By often times not identifying the treating physician by name or initials;
By failing to justify the necessity of the surface electromyograph scan provided to patient LG. on or about May 18, 2007;
By failing to justify the necessity of the surface electromyography scan provided to patient LG. on or about May 29, 2007;
By failing to justify the extremity adjustments provided to Patient LG.; and/or,
By failing to justify the medical necessity of the amount, types and frequency of care provided to patient LG.
Based on the foregoing, Respondent violated Section 460.413(1){i), Florida Statutes and/or Section 460.413(1)(m), Florida Statutes by failing to comply minimal record keeping standards.
Count Two
Petitioner re-alleges and incorporates paragraphs one (1) through twenty-two (22) as if fully set forth herein.
Section 460.413(1)(n), Florida Statutes (2007), 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.
Rule 642B2-17.005(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.
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.
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 a'ppliances sold by a chiropractic physician to a patient.
Respondent violated Section 460.413(1)(n}, Florida Statutes, through one or more of the following actions:
By billing for providing both mechanical and manual traction provided to Patient LG. on the same date of service;
By billing for providing both myofascial release and trigger point therapy to Patient LG. on the same date of service;
By billing for extremity adjustments that were not justified by the medical records;
By billing for providing Patient LG. with a surface electromyograph scan or on about May 18, 2007, that was not justified by the medical records;
By billing for providing Patient LG. with a surface electromyograph scan on or about May 29, 2007, that was not justified by the medical records; or,
By billing Patient LG. and/or her third party payor for amounts, types and frequency of care that was not justified by the medical records.
Based on the foregoing, Respondent has violated Section 460.413(1)(n), Florida Statutes (2007).
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.
Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon General
(850) 245-4640 ext. 8176
