STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 11-4936PL

) JOHN P. CHRISTENSEN, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case before Edward T. Bauer, an Administrative Law Judge of the Division of Administrative Hearings, on December 15, 2011, by video teleconference at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Gavin Burgess, Esquire

Alicia E. Adams, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: Allan L. Hoffman, Esquire

W. Grey Tesh, Esquire 1610 Southern Boulevard

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent committed the allegations contained in the Corrected Amended

Administrative Complaint, and if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On August 18, 2011, Petitioner, Department of Health, Board of Chiropractic Medicine, filed a three-count Administrative Complaint against Respondent, Dr. John P. Christensen, the gravamen of which was that Respondent engaged in deceptive practices and submitted claims for reimbursement for medical services that were never provided.

Respondent timely requested a formal hearing to contest the allegations, and, on September 23, 2011, the matter was referred to the Division of Administrative Hearings ("DOAH") and assigned to Administrative Law Judge John G. Van Laningham. On

December 9, 2011, Judge Van Laningham transferred the instant matter to the undersigned.

Prior to the final hearing, Petitioner moved to amend the Complaint to allege that Respondent's business partner had submitted fraudulent insurance claims——as opposed to Respondent personally——and that Respondent "authorized, approved, and/or knew or should have known" of such misconduct. After reviewing the Amended Administrative Complaint (an unsigned copy of which was attached to Petitioner's Motion to Amend), as well as Respondent's response in opposition, the undersigned granted Petitioner's request. Properly executed copies of the Amended

Administrative Complaint and Corrected Amended Administrative Complaint ("Complaint") were filed, respectively, on December 19 and 20, 2011.

As noted above, the final hearing in this matter was held on December 15, 2011, during which Petitioner presented the testimony of Respondent and Robert Yastrzemski. Without objection, Petitioner introduced 17 exhibits into evidence, numbered 1-11 and 13-18. Respondent presented the testimony of Marie Altidor and introduced four exhibits, numbered 1-4.

The final hearing transcript was filed with DOAH on January 13, 2012. Subsequently, on February 2, 2012, the parties filed a joint request to extend the deadline for the submission of proposed recommended orders to February 16, 2012. On the following day, the undersigned issued an order that granted the requested extension of time.

Both parties thereafter submitted proposed recommended orders, which have been considered in the preparation of this Recommended Order.1/

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner Department of Health has regulatory jurisdiction over licensed chiropractic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this

      
      

      instance, when a panel of the Board of Chiropractic Medicine has found probable cause to suspect that the chiropractic physician has committed one or more disciplinable offenses.

   2. At all times relevant to this proceeding, Respondent was a chiropractic physician licensed in the State of Florida, having been issued license number CH 2363.

2. Background / Arrangement with Dr. Wagner

   
   

   1. In or around 1975, Respondent completed his training at the National University of Health Sciences and began to practice chiropractic medicine shortly thereafter.

   2. Some 15 years later, Respondent and an acquaintance—— Dr. Joseph Wagner, also a licensed chiropractor in the State of Florida——matriculated at a medical school in the Dominican Republic. Although both Respondent and Dr. Wagner ultimately earned Doctor of Medicine ("MD") degrees in the mid 1990s, Respondent was not licensed in Florida to practice as an MD until early 2006. Significantly, Dr. Wagner never obtained licensure as a medical doctor.

   3. In 2007, Respondent and Dr. Wagner entered into a joint venture designed, in the words of Respondent, to "expand" Dr. Wagner's chiropractic practice. At that time, and for the duration of their business agreement, Respondent's principal place of business was located in Palm Beach County, while

      Dr. Wagner practiced chiropractic medicine in Daytona Beach.

      
      

   4. Under the joint venture (which continued until August 2011, when both their offices were raided by the Federal Bureau of Investigation), Respondent traveled to Daytona Beach several times each month and interacted with Dr. Wagner concerning some, but not all, of Dr. Wagner's chiropractic clients (hereinafter "joint-venture clients" or "JVCs").

   5. From what can be gleaned of the credible portions of Respondent's deposition and final hearing testimony, it appears that Respondent's activity with respect to JVCs included a review of client files, and, in some cases, a determination that one or more medications——including narcotics——should be prescribed. Indeed, Respondent's level of participation was so minimal that his face-to-face interaction with JVCs consisted, at most, of an initial introduction, and on no occasion did Respondent personally examine——or perform treatments upon——any JVC.

   6. At the conclusion of an office visit, Dr. Wagner——and Respondent, if the JVC was seen on a day when Respondent was present in the Daytona office——dictated medical notes that

      Dr. Wagner usually transcribed at a later time.

      
      

   7. Respondent has acknowledged, both at the final hearing and during his deposition, that he provided Dr. Wagner with blanket authority to create claim forms and medical notes in connection with each JVC. Incredibly, Respondent also granted

      
      

      Dr. Wagner complete authority to affix his (Respondent's) signature to claim forms and submit them——without Respondent looking at the forms beforehand——to insurance carriers for reimbursement. This was accomplished not by the use of a stamp, which medical professionals often provide to their subordinates to expedite business affairs, but by Dr. Wagner manually signing, in cursive, "John P. Christensen" inside the box of the claim form labeled "signature of the physician or supplier."

   8. Another unusual aspect of the business arrangement between Respondent and Dr. Wagner was the manner in which they dealt with reimbursement checks from insurance carriers. By agreement, reimbursement checks for claims that related to JVCs were received by mail at Dr. Wagner's place of business in Daytona Beach. Upon their receipt, Dr. Wagner deposited the checks into a SunTrust checking account for which Respondent had sole signatory authority. At the end of each month, Respondent would transfer the entire balance of the SunTrust account into his business account at PNC Bank. Shortly thereafter, Respondent would draft a check on the PNC account to Dr. Wagner in an amount equal to 50 percent of the monthly proceeds.2/

   9. Against the foregoing backdrop, the undersigned will turn to the specific allegations enumerated in the Complaint, namely: that Dr. Wagner, in connection with JVCs, submitted claims to an insurance carrier for services that were never

      
      

      provided——i.e., he overbilled——and that Respondent approved, authorized, and/or knew or should have known of the misconduct (as charged in Counts One and Three); and that the Respondent and Dr. Wagner's billing practices with respect to the four JVCs constituted fraudulent, deceptive, or untrue representations related to the practice of a profession (Count Two). The undersigned will begin with a discussion of the facts relating to Count Two.

3. Deceptive Billing Practices

   
   

   1. In or around August 2009, three individuals——S.J.,

      
      

      J.J. (S.J's cousin), and L.J. (S.J's mother)——were involved in an automobile accident. Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J. presented themselves on a number of occasions for chiropractic services at Dr. Wagner's office in Daytona Beach.

   2. Roughly one year earlier, patient C.H. was likewise involved in a car accident. C.H. was subsequently referred to Dr. Wagner for chiropractic treatment by her personal injury attorney, Joshua Wagner, who happens to be the son of Dr. Joseph Wagner. It appears from the record that C.H. was treated at Dr. Wagner's clinic on multiple dates.

   3. Pursuant to the parties' Joint Prehearing Stipulation, it is undisputed that S.J., J.J., L.J., and C.H. each had personal injury protection (PIP) insurance from Direct General

      
      

      Insurance Company ("DGIC"). PIP insurance coverage allows a medical or chiropractic provider to treat insured persons and then submit a reimbursement claim to the insurance company for the service(s) provided.

   4. Beginning with the claims associated with C.H., Respondent has consistently maintained that C.H. was not a joint-venture client, that he had no knowledge of C.H., and that any claim submitted by Dr. Wagner in connection with C.H. was without his knowledge or authorization. The undersigned credits this portion of Respondent's testimony; thus, any bills that relate to C.H. cannot sustain a finding of a deceptive or fraudulent practice.

   5. However, the cases of S.J., J.J., and L.J. are another matter. Based upon Respondent's deposition testimony, the undersigned is persuaded that Dr. Wagner, with Respondent's knowledge and authorization, submitted reimbursement claims to DGIC in connection with S.J., J.J., and L.J. that bear the following dates: January 30, 2010 (S.J.); January 30, 2010, and March 13 and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.).3/

   6. While the exact services billed to DGIC varied by JVC and date, the content of each of these claim forms represented unambiguously that the examinations and/or treatments——e.g., a trigger point injection for L.J. on March 27, 2010——were performed by Respondent and no other. This was unquestionably

      
      

      deceptive in light of Respondent's consistent testimony that he never physically conducted medical examinations or treatments in connection with any joint-venture client.

4. Alleged Overbilling

   
   

   1. In contrast to Count Two, the charges that relate to overbilling (Counts One and Three) cannot be sustained merely by proof that claims for reimbursement——i.e., the claims identified in paragraph 16 above, which Respondent authorized——were submitted for services that Respondent did not perform. Rather, it is incumbent upon Petitioner to demonstrate that the services billed were not performed at all.

   2. In this regard, the deposition transcripts of L.J. and S.J., which consist entirely of hearsay, are the only evidence that the billed services were not performed by anyone. While the deposition testimony of L.J. and S.J. is credible, there is a complete absence of non-hearsay evidence as to what procedures or services were never provided to these specific patients during their office visits. All that was proven——based upon Respondent's admissions and supplemented by the hearsay testimony of the JVCs——is that Respondent did not perform the billed services, which, as explained in greater detail in the Conclusions of Law of this Recommended Order, is insufficient to satisfy Petitioner's burden.

      
      

5. Ultimate Findings of Fact

1. It is determined, as a matter of ultimate fact, that Respondent engaged in deceptive, untrue, or fraudulent representations in or related to the practice of his profession.

2. It is further determined, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent submitted to a third-party payor a claim for a service or treatment that was not actually provided to a patient.

3. Finally, as a matter of ultimate fact, it is determined that that Petitioner failed to prove that Respondent, in connection with a personal injury protection claim, intentionally submitted a bill or claim for reimbursement for services that were not rendered.

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction

      
      

4. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to section 120.57(1), Florida Statutes.

   1. The Burden and Standard of Proof

      
      

5. This is a disciplinary proceeding in which Petitioner seeks to discipline Respondent's license to practice medicine. Accordingly, Petitioner must prove the allegations contained in Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

   
   

   Osborne Sterne, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

   
   

   Turlington, 510 So. 2d 292, 294 (Fla. 1987).

   
   

6. Clear and convincing evidence:

   
   

   [R]equires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

   
   

   Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

   
   

   1. Petitioner's Authority to Impose Discipline; The Charges Against Respondent

      
      

7. Section 460.413(1), Florida Statutes, authorizes the Board of Chiropractic Medicine to impose penalties ranging from the issuance of a letter of concern to revocation of a chiropractic physician's license to practice in Florida if the licensee commits one or more acts specified therein.

8. In its Complaint, Petitioner alleges that Respondent is guilty of billing for services that were not provided, contrary to sections 460.413(1)(x) and 456.072(1)(ff), Florida Statutes (Counts One and Three, respectively), and engaging in deceptive, untruthful, or fraudulent representations in or related to the practice of chiropractic medicine, in violation of section 456.072(1)(m), Florida Statutes (Count Two). For ease of discussion, the undersigned will begin with Count Two.

   
   

   1. Count Two

      
      

9. In Count Two of the Complaint, Petitioner alleges, inter alia, that Respondent "authorized, approved and/or knew or should have known of the submission of medical records to DGIC, which falsely indicated that he provided treatment to [L.J., S.J., and/or J.J.]," and that Respondent is therefore in violation of section 456.072(1)(m), which reads:

   1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

      
      

      * * *

      
      

      (m) Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of medicine.

      
      

10. Pursuant to the findings of fact contained herein, there is clear and convincing evidence that Respondent authorized Dr. Wagner to submit written claims for reimbursement, identified in paragraph 16 of this Recommended Order, which represented——deceptively and untruthfully——that he (Respondent) provided services to S.J., L.J, and J.J. As such misconduct plainly relates to the practice of chiropractic medicine, see Doll v. Department of Health, 969 So. 2d 1103, 1104-05 (Fla. 1st DCA 2007)(holding that submission of fraudulent reimbursement claims related to the practice of chiropractic medicine; licensee falsely represented in the

    
    

    claims that he had conducted technical components of magnetic resonance imaging testing), Respondent is guilty of violating section 456.072(1)(m).

    1. Counts One and Three

       
       

11. Petitioner further alleges, in Count One of the Corrected Amended Administrative Complaint, that Respondent violated section 460.413(1)(x), which provides that a licensee is subject to discipline for "[s]ubmitting to any third-party payor a claim for a service or treatment which was not actually

    provided to a patient." (emphasis added).

    
    

12. Petitioner contends similarly, in Count Three, that Respondent has violated section 456.072(1)(ff), which prohibits a licensee from "intentionally submitting a claim, statement, or bill for payment of services that were not rendered" in connection with a personal injury protection claim. (emphasis added).

13. Significantly, and likely in recognition of the fact that medical professionals often delegate responsibilities to colleagues (e.g., a fellow physician, a physician's assistant, or a nurse), neither of the foregoing statutes contemplates that a licensee is subject to discipline based upon the submission a claim for a service that was not personally rendered by the licensee. Instead, the plain language of sections 460.413(1)(x) and 456.072(1)(ff), which must be strictly construed in favor of

    
    

    Respondent, see Jonas v. Florida Department of Business and Professional Regulation, 746 So. 2d 1261, 1262 (Fla. 3d DCA 2000), prohibits only the submission of a claim for services were not provided at all. As such, it is incumbent upon Petitioner in this proceeding to demonstrate that one or more of the claims enumerated in the Complaint4/ sought reimbursement for services or treatments that were never rendered.

14. Before proceeding further, it must be remembered that although hearsay is admissible in administrative proceedings to supplement or explain other evidence, hearsay is insufficient by itself——even where the opposing party did not object to its introduction——to sustain a finding of fact unless the hearsay evidence would be admissible over objection in a civil action. Scott v. Dep't of Bus. & Prof'l Reg., 603 So. 2d 519, 520 (Fla. 1st DCA 1992)(reversing final order suspending nursing license where evidence consisted solely of a hearsay report that would not have been admissible over objection in a civil proceeding, notwithstanding licensee's failure to appear at the final hearing or respond to the administrative complaint); Harris v. Game & Fresh Water Fish Comm'n, 495 So. 2d 806, 808-09 (Fla. 1st DCA 1986); Charles W. Ehrhardt, Ehrhardt's Florida Evidence § 103.2, p. 10 (2008 ed.)("[M]ost cases hold that where there is no objection to the hearsay, even when the party does not appear at the hearing, it cannot be the sole basis to support a

    
    

    finding"); 120.57(1)(c), Fla. Stat. It is pursuant to this legal principle that Counts One and Three jump the rails.

15. As noted previously, the deposition transcripts of

    
    

    S.J. and L.J. are the only record evidence that could conceivably allow a finding that the claims enumerated in the Complaint sought reimbursement for services that were never provided by anyone (none of the joint-venture clients testified live during the final hearing, no deposition transcript of J.J. was submitted, and no medical professionals other than Respondent were called). Although unobjected to, the transcripts are hearsay, see Dinter v. Brewer, 420 So. 2d 932, 933 (Fla. 3d DCA 1982), and insufficient alone to sustain factual findings unless the transcripts could have been admitted over objection in a civil proceeding.

16. The use of depositions in civil proceedings is governed by Florida Rule of Civil Procedure 1.330, which provides, in relevant part:

    (a) Use of Depositions. --At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:

    
    

    * * *

    
    

    (3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena;

    (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.

    
    

17. As the foregoing language reveals, rule 1.330(a)(3) authorizes the introduction and use of deposition transcripts "for any purpose" in six situations, none of which applies under the facts at hand. Specifically, there is no suggestion that the attendance of the joint-venture clients——neither of whom is an expert or skilled witness——could not be procured by subpoena, nor is there any indication that the JVCs are dead or unable to attend the hearing due to age, incarceration, or infirmity.

    This leaves only two other possibilities under the rule: rule 1.330(a)(3)(B), which requires a finding that the witnesses are more than 100 miles from the hearing location or out of state;

    
    

    and rule 1.330(a)(3)(E), which necessitates a showing of "exceptional circumstances" upon notice and application.

18. With respect to rule 1.330(a)(3)(E), although Petitioner issued notices indicating that the depositions would be used in lieu of live testimony, it made no application—— orally or in writing——to demonstrate the existence of "exceptional circumstances." Accordingly, rule 1.330(a)(3)(E) does not authorize the use of the transcripts.

19. Turning to rule 1.330(a)(3)(B), the depositions of

    
    

    S.J. and L.J. were taken in Daytona Beach (the city where Dr. Wagner's clinic was located) in early December 2011, and

    therefore it is possible that the witnesses were at or near that location at the time of the final hearing. In the undersigned's judgment, however, it is inappropriate to make a finding of unavailability based upon the location where a witness is deposed, see Weber v. Berry, 133 So. 2d 327, 328-30 (Fla. 2d DCA 1961)(holding no abuse of discretion in excluding deposition transcripts where the proponents failed to adduce evidence that the witnesses, who lived and were deposed in Chicago, were more than 100 miles away at the time of trial), and, in any event, the residential addresses——including the cities where S.J. and

    L.J. reside——have been redacted from the deposition transcripts and subpoenas. Thus, barring a stipulation from Respondent as

    
    

    to the witnesses' availability (there is no such stipulation in the record), rule 1.330(a)(3)(B) is inapplicable.

20. Although the Florida Rules of Civil Procedure are of no assistance to Petitioner on this occasion, that does not end the analysis, as the undersigned must look to the rules of evidence to determine if a hearsay exception applies. Dinter v.

    Brewer, 420 So. 2d 932, 934 (Fla. 3d DCA 1982)("Exceptions to the rule excluding depositions as hearsay are found not only in the rules of civil procedure, but in the rules of evidence

    . . . . [W]hen the deposition does not come within the exception provided in the civil procedure rule, we must turn to the rules of evidence in our search for an exception.").

21. Consistent with Dinter, the undersigned has examined the rules of evidence and finds no hearsay exception that applies to those portions of the patients' deposition testimony that describe the services that were never performed. Although a protracted discussion of every potential hearsay exception would be impractical, it should be noted that undersigned considered, and rejected, the application of the prior testimony exceptions codified in sections 90.803(22) and 90.804(2)(a), Florida Statutes. See Grabau v. Dep't of Health, 816 So. 2d 701, 707-709 (Fla. 1st DCA 2002)(holding that section 90.803(22) is unconstitutional and therefore could not serve as a hearsay exception for the use of deposition transcripts in a licensure

    
    

    discipline proceeding); Martin Marietta Corp. v. Roop, 566 So. 2d 40, 42 (Fla. 1st DCA 1990)(holding transcript was not admissible under section 90.804(2)(a) where there was no showing of unavailability; "A substantial reason must be shown why the original witness is not available"); Spicer v. Metro. Dade Cnty., 458 So. 2d 792, 794-795 (Fla. 3d DCA 1984)(holding that prior testimony did not satisfy the requirements of section 90.804(2)(a); "The county did proffer to the examiner that its witness was unavailable because he was in the Federal Witness Protection Program at an undisclosable location in the United States. It did not, however, discharge its burden of establishing that it had taken any reasonable steps to procure the witness's attendance.").

22. For the reasons detailed above, the deposition transcripts of the joint-venture clients, while admissible, constitute hearsay and neither the evidence code nor rule 1.330(a) supports their use beyond what is authorized by section 120.57(1)(c). While the deposition transcripts can serve to supplement or explain Respondent's testimony that he did not physically treat any of the patients at issue, there is an absence of non-hearsay evidence that the billed-for services in the Complaint were not provided by anyone at all (e.g., by Dr. Wagner or somebody else at the clinic). Accordingly, Petitioner

    
    

    has failed to meet its burden with respect to Counts One and Three, which must be dismissed.5/

    1. Penalty

    
    

23. In determining the appropriate punitive action to recommend in connection with Count Two, it is necessary to consult the Board of Chiropractic Medicine's disciplinary guidelines, which impose restrictions and limitations on the exercise of the Board's disciplinary authority. See Parrot Heads, Inc. v. Dep't of Bus. & Prof'l Reg., 741 So. 2d 1231, 1233-34 (Fla. 5th DCA 1999).

24. The Board's guidelines for a violation of section 456.072(1)(m), enumerated in Florida Administrative Code Rule 64B2-16.003(1)(s), call for penalty (for a first offense) that ranges from a six-month term of probation up to a one-year suspension, followed by two years of probation, as well as an administrative fine of $10,000 per count.

25. Rule 64B2-16.003(2) provides that, in applying the penalty guidelines, the following aggravating and mitigating circumstances may be taken into account:

    1. The danger to the public;

       
       

    2. The number of unrelated and distinct offenses;

       
       

    3. The actual damage, physical or otherwise, to the patient(s);

       
       

    4. The length of time since the date of the last violation(s);

       
       

    5. The length of time the licensee has practiced his or her profession;

       
       

    6. Prior discipline imposed upon the licensee;

       
       

    7. The deterrent effect of the penalty imposed;

       
       

    8. The effect of the penalty upon the licensee's livelihood;

       
       

    9. Rehabilitation efforts of the licensee including remorse, restitution, and corrective actions;

       
       

    10. Efforts of the licensee to correct or stop violations or failure of the licensee to correct or stop violations;

        
        

    11. Related violations against the licensee in another state, including findings of guilt or innocence, penalties imposed and penalties served;

        
        

    12. The actual negligence of the licensee pertaining to any violation;

        
        

    13. Any other mitigating or aggravating circumstances.

    
    

26. Notwithstanding Respondent's lack of disciplinary history and the length of time he has practiced his profession, a stern penalty at the upper end of the disciplinary guidelines is warranted due to the nature of Respondent's deceptive conduct and his disturbing lack of good judgment. It is therefore recommended that Respondent's license to practice chiropractic medicine be suspended for one year, followed by two years of

probation (with conditions to be set by the Board), and a fine of $10,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine:

1. Dismissing Counts One and Three of the Corrected Amended Administrative Complaint;

2. Finding that Respondent violated section 456.072(1)(m), Florida Statutes, as charged in Count Two;

3. Suspending Respondent's license to practice chiropractic medicine for a period of one year;

4. Placing Respondent on probation for a period of two years, with conditions deemed appropriate by the Board; and

5. Imposing a fine of $10,000.

DONE AND ENTERED this 16th day of March, 2012, in Tallahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2012.

ENDNOTES

1/ Unless noted otherwise, all statutory references are to the codification in effect at the time of Respondent's alleged misconduct.

2/ The collaboration of Respondent and Dr. Wagner yielded substantial financial remuneration. Over a four-year period, reimbursement totaling $800,000 from insurance carriers was deposited into Respondent's SunTrust account, the proceeds of which were split 50/50 with Dr. Wagner.

3/ See Pet. Ex. 15, pp. 31-32; 43-44; 50-53.

4/ Specifically, Petitioner asserts that Respondent submitted, approved, authorized, and/or knew or should have known of the submission of claims for reimbursement for treatments that were not provided to: C.H. on February 13, 2009, February 25, 2009,

March 4, 2009, March 21, 2009, April 4, 2009, April 12, 2009,

April 25, 2009, May 2, 2009, June 19, 2009, and/or August 8,

2009; L.J. on January 30, 2010, March 13, 2010, and/or March 27;

S.J. on December 31, 2009, January 2, 2010, January 16, 2010, January 30, 2010, February 13, 2010, February 20, 2010, and/or March 13, 2010; and J.J. on February 2, 2010, February 22, 2010, and/or April 24, 2010. See Corrected Amended Administrative Complaint, ¶¶ 70 & 85.

5/ Clear and convincing evidence exists that reimbursement claims were submitted (of which Respondent was aware) for trigger point injections purportedly performed on S.J. on January 30, 2010, and on L.J. on March 27, 2010. Had the undersigned been able to fully consider the deposition transcripts of S.J. and L.J.——wherein the witnesses credibly testified that they never received a trigger point injection at Dr. Wagner's clinic——pursuant to Rule 1.330 (or under a hearsay exception), Petitioner would have met its burden with respect to Counts One and Three.

COPIES FURNISHED:

Gavin Burgess, Esquire Alicia E. Adams, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

Allan L. Hoffman, Esquire

W. Grey Tesh, Esquire 1610 Southern Boulevard

West Palm Beach, Florida 33406

Nicholas Romanello, General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399

Bruce Deterding, Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C-07 Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 11-004936PL

Orders for Case No: 11-004936PL