Findings Of Fact Petitioner took the examination for licensure as a laboratory supervisor in 1981, 1982, 1984 and 1985. In the fall of 1984 he passed that portion of the examination covering Immunohistology but failed the portion covering Supervision and Administration. His score on the Immunohemotology portion was 32 with 31 required for a passing grade. On the Supervision and Administration portion his score was 47 with 48 required to pass. On June 6, 1985, the rules affecting laboratory personnel licensing was changed to require candidates for the examination for which Petitioner applied to hold a bachelor's degree. Petitioner does not hold a bachelor's degree and acknowledged that he does not meet the current academic requirements to sit for the examination. Although the required procedures for making rule changes were followed by Respondent, Petitioner contends that he was not advised of the proposed changes, and, had he been so advised, he would have applied to retake the examination in Supervision and Administration before the rule changes became effective and would have qualified to sit for the examination. Respondent's witness presented Petitioner's record. This record shows that Petitioner, in October 1984 passed the Immunohistology portion of the examination and failed the Supervision and Administration portion by one point. This record also revealed that Petitioner applied to retake the examination in Supervision and Administration in January 1985 and sat for this examination in April 1985. On the examination his test score was 39 with 48 required to pass.
The Issue At issue herein is whether Petitioner, Ellen Moldoff, is qualified for a supervisor's license in microbiology under Section 10D-41.24(10), Florida Administrative Code.
Findings Of Fact Based on the testimony of the witnesses and their demeanor while testifying, the following relevant facts are found. On February 27, 1979, George S. Tylor, Jr., B.A., Clinical Laboratory program, advised Ellen Moldoff, petitioner, that her application for licensure as a supervisor was being denied under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, in that, "You do not have the 60 semester hours and the 10 years experience required under Section 10D-41.24 (10), of the Florida Administrative Code." Petitioner timely appealed the Department's denial of her application for a supervisor's license in microbiology. During the course of the hearing, Petitioner acknowledged the fact that she failed to satisfy either the sixty-semester-hour requirement or its equivalent in quarter or semester hours (two years of academic study) in an accredited college or university or that she possessed the ten years pertinent experience requirement as set forth in Chapter 10D-41.24 (10), Florida Administrative Code. However, Petitioner introduced four letters of recommendation written by employees and other supervisors who were familiar with the Petitioner's skills and abilities. It suffices to say that they all spoke highly of Petitioner's qualifications and highly recommended her to take the supervisor examination in microbiology. Petitioner, during the hearing, alluded to numerous persons whom she considered less qualified than she who were permitted to take the supervisory examination based on an overstatement of qualifications in their applications for licensure as a supervisor. Finally, Petitioner felt that her honesty alone prevented her from being permitted to take the supervisory examination Petitioner expressed her opinion that based on her observation of the clinical supervisors and the duties to which she is assigned, she considered herself as qualified, if not more qualified than those she observed. Respondent does not question Petitioner's ability to fulfill supervisory functions; however, it hastens to add that it has no authority to waive the qualifications for supervisory laboratory personnel as set forth in Chapter 10D-41.24(10), Florida Administrative Code.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the Petitioner's appeal of the Respondent's determination that she is ineligible to take the supervisory examination be DENIED. DONE and ENTERED this 6th day of August, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ms. Ellen Moldoff 3690 Inverrary Drive Lauderhill, Florida 33319 Harold Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 800 West Oakland Park Boulevard Fort Lauderdale, Florida 33311
Findings Of Fact The Petitioner is a registered Nurse, and she is registered with a national organization as a respiratory therapist. A respiratory therapist works with patients who have respiratory, spinal, lung, or drug abuse problems. One procedure used by such therapists to determine if a patient is breathing properly is an arterio blood gas test. The petitioner has performed thousands of much tests. Until the Respondent adopted rules pursuant to the Florida Clinical Laboratory Law, there was no requirement for licensure to perform arterio blood gas tests. There is now a special category for licensure as a laboratory technologist in a specialty called "Chemistry-Special" which would qualify an individual to perform such tests, but no other clinical laboratory procedures. The petitioner submitted an application for licensure in the "Chemistry-Special" specialty on September 29, 1977. She did not take the test required by the Respondent, and accordingly her license application has been denied.
The Issue The issue presented is whether Petitioner is entitled to licensure as a clinical laboratory technologist in microbiology.
Findings Of Fact Applications for licensure as a medical technologist in microbiology are available from the Board's office. With the application, the Board staff sends directions for completing the application form, a copy of the relevant statutes and Board rules, the names and addresses of accredited and Board-approved medical technology training programs, and other materials. Petitioner's application for licensure as a medical technologist is dated January 20, 1999. She submitted that application and all required fees for licensure to the Board. Petitioner received her degree as a doctor of medicine from the Higher Institute of Medical Sciences in Havana, Cuba. That degree satisfies the educational requirements for licensure as a medical technologist in the State of Florida. In addition to minimum educational requirements, licensure as a technologist requires certain minimum experience working in a clinical laboratory performing a wide array of tests or completion of a technologist-level accredited or Board- approved medical technology training program. This requirement is clearly set forth in the materials the Board forwarded to Petitioner as part of her application package. The training program Petitioner completed in Cuba is not on the list of the Board's approved or accredited medical technology training programs. Petitioner acknowledges that she has not enrolled in, or completed, a technologist-level accredited or Board-approved technology training program. Therefore, in order to take the licensure examination and qualify for licensure Petitioner must have completed three years of full-time employment in a clinical laboratory performing a wide array of tests. None of Petitioner's work experience has been in the United States. With her application, Petitioner did not submit any employment verification forms from her employers. Instead, Petitioner submitted affidavits from people who knew her in Cuba and in Nicaragua. These affidavits conflict with each other, with Petitioner's resumé she submitted to the Board along with her application, and with Petitioner's testimony at the final hearing. On her application, Petitioner represented under oath that she was employed from June 1994 to July 1996 at the Institute of Tropical Medicine Pedro Kouri in Havana, from August 1996 to July 1997 at the Julio Trigo General Hospital in Havana, and from October 1997 to July 1998 at the National Center of Diagnostic and References in Managua, Nicaragua. She represented that she performed a wide variety of testing at each of these institutions, processing patient samples. However, on her resumé, which she submitted to the Board along with her application, Petitioner represents that at these three institutions, she was employed as a laboratory supervisor, charged with assessing laboratory personnel, and as a researcher. Her resumé also lists extensively the research studies she performed and her teaching experience. In support of her testimony at the final hearing that she possesses the required three years of pertinent clinical experience performing the required testing, Petitioner presented the testimony of Caridad Gonzalez and Biarda Villaverde. Ms. Gonzalez is a licensed medical technologist currently employed in the State of Florida. She testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from 1994 through 1996 and at the Julio Trigo General Hospital from 1996 through 1998. These dates conflict with those set forth in two affidavits Gonzalez provided to the Board as part of Petitioner's application for licensure. Further, in her own sworn application for licensure filed with the Board, Gonzalez never mentioned having been employed at the Institute of Tropical Medicine Pedro Kouri. Additionally, Gonzalez left Cuba and came to the United States in April 1997 and was not, therefore, employed in Cuba with Petitioner through 1998. Her testimony at final hearing, therefore, lacks credibility. Biarda Villaverde testified that she worked with Petitioner at the Institute of Tropical Medicine Pedro Kouri from June 1994 to June 1995 in a clinical setting. However, Villaverde and Petitioner worked in different laboratories at that institution. Villaverde, therefore, cannot support Petitioner's testimony as to the work performed by Petitioner since she did not work in the same laboratory. Further, the facility was a diagnostic, research, and teaching facility, where some tests were performed on animals, depending upon the type of research conducted. Villaverde testified that Petitioner was assigned to the research division at this facility. Research does not qualify for the work experience required for licensure as a medical technologist. Even if some of Petitioner's research experience could be counted toward the required clinical experience, Petitioner both admitted and denied at the final hearing that she performed research, primarily representing that she worked full-time performing the required array of testing on patient samples. Several of the accredited or Board-approved technologist training programs are located in South Florida, where Petitioner resides. A training program takes one to two years to complete, depending upon the program. Although Petitioner expressed her unhappiness with the length of time her application for licensure has been pending, she could have completed a program, thus obtaining the minimum required experience for licensure, had she chosen to do so upon learning the minimum requirements for licensure. Petitioner's argument that she should be given credit for her work in the laboratories in Cuba and Nicaragua since they complied with World Health Organization quality control standards is without merit. The World Health Organization does not regulate or set quality control standards for clinical laboratories. The World Health Organization only gathers statistical data and publishes studies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a clinical laboratory technologist in microbiology. DONE AND ENTERED this 4thday of December, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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, 2000. COPIES FURNISHED: Zenia Flores de Apodaca 1698 West 65th Street Hialeah, Florida 33012 Mary S. Miller, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Joe Baker, Jr., Executive Director Board of Clinical Laboratory Personnel Department of Health 4052 Bald Cypress Way Bin A07 Tallahassee, Florida 32399-3257 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way A02 Tallahassee, Florida 32399-1701
The Issue Should Petitioner be considered eligible for licensure and licensed as a clinical laboratory supervisor in the specialties sought.
Findings Of Fact At all times pertinent to the matters in issue here, Petitioner was licensed as a clinical laboratory supervisor in the State of Florida in the areas of hematology, serology and microbiology, under the provision of Chapter 483, Part I, Florida Statutes. This licensure is based upon her passing an examination in those subjects and her certification as qualified pursuant to Section 241, Public Law 92-603 by the Bureau of Quality Assurance, Public Health Service of the United States Department of Health, Education and Welfare. She is not certified in the areas in which certification is herein sought. The Department is the state agency responsible for the licensure and regulation of clinical laboratory personnel, including supervisors, in Florida. Petitioner has been licensed as a clinical laboratory supervisor in the disciplines set out above for approximately 12 years, the last six of which, she has spent at the laboratory at Doctor's Hospital in Sarasota, a laboratory approved by the State of Florida. In November, 1989, she applied for supplemental licensure as a clinical laboratory supervisor in the fields of chemistry and immunohematology, but was denied the requested licensure because she does not have either a bachelor's degree with a major in science, or 90 semester hours study in that field at an accredited college or university. Her educational and experience background are, however, impressive. Between June, 1965 and December, 1966, she was in training in the areas of hematology, serology, chemistry, microbiology and immunohematology. In January, 1967, she went to work in a doctor's office and set up his laboratory in which she worked in hematology testing, chemistry and urinalysis. In September, 1967, she went back to a hospital as a technologist in all phases of laboratory work. In July, 1973, she moved to Sarasota and went to work in the laboratory at Doctors Hospital, working with all five subspecialties. She held the job of technician and supervisor in all fields in which she was licensed. Petitioner asserts, and the Department agrees, that she was licensed in Florida as a supervisor in hematology in 1978, and in the areas of microbiology and serology in 1979. In April, 1980, Petitioner went to work for several doctors in Bradenton as a laboratory technician/technologist, remaining there through December, 1980, when she went back to Doctors Hospital, again working in all five specialty areas, and remained there as a technologist and supervisor in those areas in which she was licensed, until October, 1989. Since that time, she has worked in a Sarasota oncology laboratory, in hematology and clinical chemistry. She does no on-site chemical testing, however, since all is sent out. Through cross examination of the Petitioner, Respondent established that in 19878, and again in 1979, Petitioner took and failed to pass the Florida examination for supervisor in clinical chemistry and hematology. In the instant case, however, her protest is not about the grade she received on those examinations, but of the refusal to grant her licensure without examination on the basis of her experience. Petitioner is well thought of by the physician's for whom she works. Dr. Barbara J. Harty-Golder, a pathologist and her current supervisor, has known her since 1983 and has indirectly supervised her work since that time. She feels that Petitioner's performance in laboratory technology in the areas in which she seeks certification, is quite good. She has rarely worked with anyone as proficient and competent. Petitioner has exceptionally good people skills. She keeps up with current advances, and based on the witness' experience, which comes from supervision of several laboratories, she feels the Petitioner is fully qualified to be a supervisor in the areas in which she seeks certification. In late November, 1989, after Petitioner had submitted her request for licensure without examination, Ms. Nancy Chapman, assistant administrator of the Department's laboratory licensure division, and the individual responsible for evaluating Petitioner's application, wrote to her requesting information which was not on file in the Department's records. This information related to Petitioner's holding a bachelor's degree with a major in science. Petitioner did not respond to that request, and Petitioner stipulates that she does not possess the technical formal education specified in the Department's rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary enter a Final Order denying Petitioner's application to add the specialty areas of clinical chemistry and immunohematology to her clinical laboratory supervisor's license. RECOMMENDED this 25th day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1880 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted that Petitioner is a duly certified laboratory technologist, but not proven as to the subject matters in which so certified. & 4. Accepted and incorporated herein. 5. Accepted and incorporated herein. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. COPIES FURNISHED: Edward A. Haman, Esquire DHRS 7827 North Dale Mabry Highway Tampa, Florida 33614 Lawrence J. Robinson, Esquire Robinson, Robinson & Fogleman, P.A. P.O. Box 2720 Sarasota, Florida 34230-2720 John Miller General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190 Miami, Florida 33143 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
Findings Of Fact Upon consideration of the oral and documentary' evidence adduced at the hearing, the following relevant facts are found: DHRS administers the Program which is jointly funded by the state and federal government under Title XIX of the Social Security Act. The Program is voluntary and is subject to both state and federal laws, rules and regulations. The Program does not reimburse providers such as Dr. Clement for all services rendered. Only those services which are determined to be medically necessary or which the state has determined it wishes to provide are covered by the Program. The services to be rendered and the fees to be paid for those services are set forth in the policy manuals and fee schedules which are given the provider when he enrolls in the Program. Under the Program, the provider files claims in accordance with the policies set forth in the manual. Those claims are computer processed and it is assumed that the provider is submitting the claims in accordance with the policies. The computer system is not programmed to reject all erroneous claims. Therefore, the provider is automatically reimbursed based upon claims submitted. The Program operates on the honor system and must "pay and chase" providers who submit improper claims. Under the Program the state is required to protect the integrity of the Program by reviewing providers for possible fraud and abuse. The Program utilizes a Surveillance Utilization and Review System (SURS) which compares a provider's Medicaid practice with that of his peers. This system takes the provider's computer generated claims history and compares it both quantitatively and qualitatively with the average practice of his peers. When a potential problem is detected, the provider's practice is further reviewed to determine if fraud or abuse has occurred. On November 4, 1983, Dr. Clement signed a provider agreement with DHRS and operated under this provider agreement at all times material to this proceeding. In signing this provider agreement, Dr. Clement agreed to "submit requests for payment in accordance with program policies" and to, "abide by the provisions of the Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. In billing under the Program, Dr. Clement is expected to provide services in accordance with generally accepted practices of his profession of dentistry. Those services for which a provider may submit claims are set forth in the Children's Dental Services Manual (HRSM 230-22), a copy of which was provided to Dr. Clement when he entered the Program. In addition to the manual, Dr. Clement was provided with an EDS Billing Handbook which explained the mechanics of submitting a claim. HRSM 230-22 is merely a compilation of procedures for which the Program will reimburse the provider along with the reimbursement rate for each procedure. The manual utilizes procedures and codes utilized by the American Dental Association, is prepared with technical assistance of dental consultants, and is reviewed by various dental associations. The manual is designed for use by dental providers who are knowledgeable in the field of dentistry and are utilizing generally accepted principles of dentistry. In 1985 a SURS Level I Review report, comparing Dr. Clement with his peer group of general dentists providing services to children, indicated possible inappropriate billing of the Program. Because of the nature and extent of the billing problems, Dr. Clement's case was referred to the Medicaid Fraud Control Unit (MFCU) of the State of Florida's Auditor General's Office for possible criminal prosecution. DHRS took no further action pending the criminal investigation. Criminal charges were subsequently filed against Dr. Clement as a result of the MFCU investigation and Dr. Clement's case was referred back to the Medicaid Office of Program Integrity for review of nine possible areas of program policy violations which were not part of the criminal prosecution. The Program thereupon conducted its own investigation into possible abuse by Dr. Clement. Using the preliminary investigation done by an HRS dental consultant who reviewed Dr. Clement's practice for MFCU, and the original Level I Review report, a DHRS investigator reviewed ad hoc computer reports of claims submitted by Dr. Clement for specific dental procedures. Based upon the computer analysis of claims submitted, as well as the advice of the dental consultant, the Program identified nine areas of Dr. Clement's practice of Medicaid billing which were not in compliance with Medicaid billing procedures or generally accepted standards of dental practice. On sixty-six occasions, Dr. Clement submitted claims and was paid for procedures such as examinations, prophylaxis and fluoride treatment at intervals of less than six months. HRSM 230-22 recommends that such procedures be performed no more frequently than once every six months, and this recommendation is recognized under generally accepted standards of dentistry. This recommendation is applicable to both private pay patients and Medicaid patients who are generally indigent. Although such treatment may be necessary on occasions at shorter intervals, Dr. Clement offered no evidence to justify the frequency or the necessity of providing such procedures at intervals of less than the recommended six months. On two hundred and eighty six occasions, Dr. Clement improperly filed claims and received payment for consultations. HRSM 230-22 only allows claims for consultations by a dental specialist (oral surgeon, periodontist, endodontist, or prosthodontist). Dr. Clement is not a dental specialist and should not have submitted claims for such procedures. The manual's definition and interpretation of the appropriate billing procedure for consultation services is in accordance with the generally accepted practice of dentistry. On ninety four occasions, Dr. Clement submitted claims and received payment for behavior management and nitrous oxide on the same visit. HRSM 230- 22 only allows claims for behavior management where nitrous oxide is not used. There was no evidence to show that both behavior management and nitrous oxide on the same visit was necessary. On seven occasions, Dr. Clement submitted claims and received payment for extracting more than one first tooth in a given quadrant. HRSM 230-22 provides a fee of $10.00 for the extraction of the first tooth in a given quadrant which is billed on a claim as procedure D7110 whereas each additional tooth extracted in the same quadrant at the same time is reimbursed at the rate of $7.00 and billed on a claim as procedure D7120. The fee for the removal of the first tooth in a given quadrant is higher than the fee for each succeeding tooth in the same quadrant because anesthesia for the first tooth does not have be administered for each succeeding tooth in the same quadrant. Dr. Clement received payment for 117 alveolectomies (a reshaping of the bone) performed on 52 children which is an excessive number. Alveolectomies should only be performed in extreme cases where, without an alveolectomy, the insertion of dentures or partials would be impossible. It is standard dental practice to perform an alveolectomy only where a denture is supplied. Performing an alveolectomy on a child is not a common practice. There was no evidence that Dr. Clement performed the alveolectomies in preparation of insertion of partials or dentures. Dr. Clement filed an excessive number of claims for pulp caps. A pulp cap is a protective material utilized when the pulp of the tooth is exposed (direct pulp cap) or nearly exposed (indirect pulp cap). HRSM 230-22 differentiates a pulp cap from a medicated base. A pulp cap is reimbursable as a separate claim, the medicated base is not. Dr. Clement claimed and received payment for pulp caps 68.7 percent of the time in conjunction with a tooth restoration. There was credible evidence to show that in the generally accepted practice of dentistry, pulp caps are used no more than 5 percent of the time in a tooth restoration. Dr. Clement billed for pulp caps whenever he applied a medicated base, even though the pulp was not exposed or nearly exposed. On one hundred occasions Dr. Clement improperly filed claims and received payment for palliative (emergency) treatment at the same time that he filed a claim and was paid for regular dental treatment. Palliative treatment is used to relieve pain and discomfort on an emergency basis when time and circumstances contra-indicate a more definitive treatment and additional services. In the general accepted practice of dentistry, palliative treatment is used as a temporary measure to assist the patient until such time as regular treatment can be provided. Palliative treatment and any other treatment are mutually exclusive and normally would not be given on the same day. On those occasion where Dr. Clement filed claims and received payment for both palliative treatment and regular treatment on the same day, there is insufficient evidence to show that this treatment was within the generally accepted practice of dentistry. On sixteen occasions Dr. clement improperly filed claims and was paid for prophylaxis, periodontal scaling, and gingival curettage all on the same date of service. Prophylaxis is the standard cleaning of the teeth. Periodontal scaling is a more advanced procedure of cleaning wherein larger deposits of caclculus are removed by scraping. Gingival curretage is a more drastic procedures wherein pockets which have formed between the gum and the teeth are scraped out. While all three procedures are different, they overlap somewhat and it is not a generally accepted practice of dentistry to perform more than one of these procedures at any given time. There was no evidence presented to show that performing all three procedures on the same date was necessary or was within the generally accepted practice of dentistry. Dr. Clement filed an excessive number of claims for gingival curretage. Dr. Clement claimed and received payment for gingival curretage on 14 percent of his patients under the age of 17. In the generally accepted practice of dentistry, the use of gingival curretage on children will not normally exceed 1 percent to 3 percent for ages 10 and under or 3 percent to 6 percent over the age of 10. Although Dr. Clement urged that these claims for gingival curretage had been given prior approval, the evidence showed that the prior approval had been given based on information furnished by Dr. Clement and the dental consultant giving the prior approval did so on that information on a case by case basis and did not know of the excessive use of gingival curretage by Dr. Clement. Based on the nine areas cited for inappropriate billing, there is substantial competent evidence to show that Dr. Clement was not following generally accepted standards of dental practice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Department of Health and Rehabilitative Services enter a Final Order finding that Dr. Clement has abused the Florida Medicaid Program and terminating Dr. Clement from participation in the Florida Medicaid Program. Respectfully submitted and entered this 7th day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3023 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 16. 17. Adopted in Finding of Fact 17. 18. Adopted in Finding of Fact 18. 19. Adopted in Finding of Fact 19. 20. Adopted in Finding of Fact 20 as clarified. 21. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 17 but clarified. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. 9 The first sentence adopted in Finding of Fact 19. The balance is rejected as immaterial and irrelevant. COPIES FURNISHED: Theodore E. Mack, Esquire 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32399 Harold E. Regan, Esquire 308 East College Avenue Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
