The Issue The issue for decision herein is whether or not Respondent exhibited fraud, deceit, negligence, incompetence, or misconduct in the examination and fitting of a patient for contact lenses in violation of Subsection 463.016(1)(g) and (h), Florida Statutes, and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Optometry, is the state agency charged with regulating the practice of optometry in Florida, pursuant to Section 20.30 and Chapters 455 and 463, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed optometrist who holds license number 0000437, and his last address of record is Zodiac Optical, 1211 South Dale Mabry Highway, Tampa, Florida 33 On February 21, 1987, Respondent examined and fitted Patricia Gama for hard contact lenses and Ms. Gama paid $154.00 for the lenses. On that date, Respondent obtained an initial refraction for the right eye of -1.25 and for the left eye of -1.00 (eye glass prescription only) and by use thereof, fitted Gama with contact lenses. At the time, Gama was employed as a cashier at a commercial retail establishment. Gama immediately began experiencing discomfort with the contacts, specifically blurred vision, red eyes and headaches. Gama found it difficult to read the cash register keys and function as a cashier. Gama advised Respondent of her discomfort on February 25, 1987, and at that time, Respondent fitted Gama with another set of contact lenses. Gama continued to experience discomfort with the contact lenses and after advising Respondent of such, Respondent on February 27, 1987, fitted Gama with a third set of contact lenses. Gama's discomfort with the contact lenses continued and she again advised Respondent of his discomfort. On March 18, 1987, Respondent fitted Gama with a fourth set of contact lenses. Through it all, Respondent used eleven different lenses in an effort to properly fit Gama; however, she continued to experience discomfort. Throughout Respondent's endeavor to properly fit Gama with contact lenses, he did so in a courteous and professional manner. However, Gama's husband insisted that she seek a second opinion from another optometrist, obtain a refund from Respondent and discontinue using the lenses Respondent prescribed. On April 22, 1987, Respondent's partner, Dr. William Hunter, refunded $74.00 of the total purchase price of $154.00 that Gama paid. He also gave Gama the prescription prepared for her by Respondent. Respondent works in a group practice which is owned by Dr. Hunter. Dr. Hunter has a policy of giving only a 50% refund within thirty days of purchase if the patient is not satisfied. On the following day, April 23, 1987, Gama was examined and fitted for contact lenses by Dr. Julian Newman. Respondent's initial refraction was twice as strong as Dr. Newman's refraction. It is not uncommon for patients, such as Gama, to test differently for glasses on different days which can result in different refraction readings on different days. Likewise, it is not unusual for an optometrist to note different refractions for the same patient on different days, or to make an error in the refraction readings for the same patient. When this is done however, the optometrist should try to correct the mistake if, in fact a mistake is made. Here, Respondent strived to satisfy Gama and never ceased efforts to comfortably fit her with contact lenses. Respondent made a refund to Gama in keeping with office policy which appeared reasonable under the circumstances considering the time spent with Gama before she decided to seek another opinion from another optometrist. (Testimony of Drs. Julian D. Newman, O.D. and Joel Marantz, O.D. both of whom were expert witnesses in this proceeding.) Respondent's receptionist, Beatrice Franklin, paid $100.00 to Gama on or about December 11, 1987, in exchange for Gama signing a request to drop her charges against Respondent at the Department of Professional Regulation. Respondent had no knowledge of Ms. Franklin's actions, and in fact, Sharon Hosey, a receptionist employed by Respondent, corroborated Respondent's testimony respecting lack of knowledge on his part as to any payments to Gama other than the $74.00 refund in exchange for her withdrawal of the complaint with Petitioner or to otherwise obtain Gama's signature on a release. Respondent was conscientiously attempting to comfortably fit Gama with contact lenses when Gama decided to seek a second opinion. He did so by changing the prescriptions on several occasions, including changing to lenses made by a different manufacturer. In the process, Respondent tried eleven different contact lenses. Respondent was willing to continue treating Ms. Gama and provide the required follow-up care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Board of Optometry enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of February, 1990. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack L. Hargraves, O.D. 1211 South Dale Mabry Highway Tampa, Florida 33629 Patricia Guilford, Executive Director Florida Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Loran A. Bennett holds a license issued by the Florida Board of Opticianry to practice opticianry in Florida and was so licensed at all times here relevant. By Judgment and Probation/Commitment Order dated July 31, 1980 (Exhibit 2) Respondent was found guilty of conspiracy to distribute cocaine, possession with intent to distribute cocaine, distribution of cocaine and using a communications facility in the commission of a felony; and he was sentenced to serve three years imprisonment for each count with the sentences to run concurrently and with a special parole term of three years to commence upon the expiration of the initial sentence.
The Issue Whether the Petitioner must reimburse the Respondent for Medicaid overpayments as set out in the Final Agency Audit Report dated October 29, 2003, and, if so, the amount to be repaid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is, and was at all times material to this proceeding, the state agency charged with administering Florida's Medicaid Program; with making payments to providers of goods and services on behalf of Medicaid recipients; and with overseeing the Medicaid Program, auditing Medicaid providers, and recovering overpayments made to Medicaid providers. See §§ 409.901, 409.902, and 409.913, Fla. Stat. (2003). During the Audit Period, Ady Optical was an authorized Medicaid provider of opticianry services,3 having been issued Medicaid provider number 2002949-00. To become a Medicaid provider, Ady Optical executed a Medicaid Provider Agreement. The FAAR dated October 29, 2003, was based on a review by Dr. Regina Manes of Ady Optical's records for the 30 randomly-selected Medicaid recipients. At the time of the final hearing, Dr. Manes was no longer under contract with AHCA and, therefore, was not available to testify. AHCA requested that Dr. Walby testify at the final hearing as its expert in optometry. In preparation for the final hearing, Dr. Walby reviewed the records submitted by Ady Optical and made an independent determination of the appropriateness of the 294 claims at issue for the Audit Period. Dr. Walby's conclusions were not always consistent with those of Dr. Manes. Ms. Whaley reconciled the two reviews and allowed a claim if either Dr. Walby or Dr. Manes determined that it was covered by Medicaid. As a result of Dr. Walby's review and Ms. Whaley's reconciliation, AHCA lowered the amount it seeks to recover from Ady Optical to $45,914.17. The purpose of Medicaid visual services, as stated in the Coverage and Limitations Handbook, is "to provide medically necessary eyeglasses, contact lenses, eyeglass repair services, and prosthetic eyes to Medicaid recipients." "Visual services" are described in the Coverage and Limitations Handbook as "the medically necessary provision of eyeglasses, prosthetic eyes, and contact lenses; the fitting, dispensing, and adjusting of eyeglasses; and eyeglass repair services." The Coverage and Limitations Handbook is to be used in conjunction with the Reimbursement Handbook, which provides information and guidance to assist Medicaid providers in filing claims properly. The claims at issue in this case involve the provision of eyeglass lenses to Medicaid recipients by Ady Optical. Medicaid recipients bring their eyeglass prescriptions to Ady Optical, and Mr. Jimenez, as the licensed optician at Ady Optical, helps the recipient select eyeglass frames and orders lenses in the powers required by the prescription. An optician such as Mr. Jimenez has the discretion to order lenses with special features such as tints, plastic or glass lenses, variable asphericity lenses, and lenses with a special base curve, depending on the needs of the individual. The lenses selected by an optician for a Medicaid recipient must be optically necessary, that is, necessary to enhance visual acuity, and information establishing the optical necessity for the selection of non-standard lenses must be contained in the documentation maintained by the optician. Sometimes the need for a non-standard lens is apparent from the prescription, but in most cases, the optical necessity must be noted in the documentation. The claims for which AHCA disallowed full or partial payment to Ady Optical are claims for variable asphericity lenses, claims for lenses with special base curves, one claim for an oversized lens, claims for which Ady Optical provided inadequate documentation to establish that lenses were ordered for Medicaid recipients, and claims involving errors in coding. Claims for variable asphericity lenses Prescriptions for eyeglass lenses are expressed in "plus or minus" diopter units. Variable asphericity lenses were originally designed to ameliorate the magnification and "off-of- the-center" effects of the very thick lenses necessary to correct the vision of persons with extremely high diopter prescriptions, such as the prescriptions of ± 15 diopters or more needed in the past by persons who had had cataract surgery.4 With advances in technology and surgical techniques, there are few patients with prescriptions this high, and variable asphericity lenses are now made for prescriptions with much lower diopters. The curve of a variable asphericity lens is different from that of a regular lens, and variable asphericity lenses are lighter in weight than regular lenses, which can be a factor for persons with high diopter prescriptions. Variable asphericity lenses also provide significantly better peripheral vision for persons with high diopter prescriptions than regular lenses can provide. There is, however, a minimal difference in weight between variable asphericity lenses and regular lenses with low diopter prescriptions, and peripheral vision is usually not affected when regular lenses are used for low diopter prescriptions. The Coverage and Limitations Handbook in effect during the Audit Period provides that both single vision variable asphericity lenses, assigned procedure code V2410, and bifocal variable asphericity lenses, assigned procedure code V2430, may be billed under the same codes for all powers ranging from .25 to over 6.0 diopters.5 In his review of the Medicaid claims submitted by Ady Optical for the 30 randomly-selected Medicaid recipients included in the audit, Dr. Walby disallowed all claims for variable asphericity lenses because the prescriptions were lower than ± 7.00 diopters. Dr. Walby reasoned that any optician should know that variable asphericity lenses should not be prescribed for prescriptions with diopters lower than ± 7 units. Dr. Walby variously described the ± 7 diopter cut-off for variable asphericity lenses as the standard he considered "the industry standard" and as the standard he chooses to use in his practice. Dr. Walby also testified that the ± 7-diopter standard had previously been chosen by Medicaid as the minimum prescription for which contact lenses are covered and that this standard was adopted in the current Coverage and Limitations Handbook "because somebody had to draw a line in the sand, and that's where it got drawn."6 Dr. Walby has failed to establish by persuasive evidence that, in the practice of opticianry, there is an absolute industry standard that dictates that variable asphericity lenses are never optically necessary for a person whose prescription is lower than ± 7.00 diopters.7 Because the Coverage and Limitations Handbook in effect during the Audit Period permitted the use of variable asphericity lenses for prescriptions of ± 0.25 diopters and above, Ady Optical is entitled to reimbursement for variable asphericity lenses provided to Medicaid recipients whose prescriptions are below ± 7.00 diopters as long as Ady Optical documented that variable asphericity lenses were optically necessary to provide adequate visual acuity and reasonable comfort. Ady Optical ordered variable asphericity lenses for Recipients 1 through 3, 5 through 8, and 10 through 30. None of these recipients' prescriptions exceeded ± 5.25 diopters. Most of the prescriptions for these recipients were below ± 3.00 diopters, and several of the prescriptions called for "plano" lenses, that is, lenses with no magnification power. Ady Optical failed to indicate on any of the laboratory order forms any optical necessity for providing variable asphericity lenses to these recipients. The claims submitted by Ady Optical to Medicaid for payment for variable asphericity lenses for these recipients are, therefore, disallowed. Claims for lenses with special base curves Although there is a standard base curve for eyeglass lenses, lenses can be made with different base curves to accommodate the special needs of an individual. The Coverage and Limitations Handbook in effect during the Audit Period provides that special base curves, assigned procedure code V2730, may be billed with no stated limitations. In order to be covered by Medicaid, lenses with special base curves must be optically necessary, and the optical necessity must either be inherent in the prescription or documented in the optician's records. In addition, the optician is responsible for specifying the particular curvature of the lens required to meet the needs of the individual whenever a special base curve lens is ordered. There is optical necessity for lenses with special base curves when a person's prescription for one eye is significantly larger than the prescription for the other eye; the image size in both lenses can be made the same by adjusting the curves of the lenses. There is also optical necessity for a lens with a special base curve when a person's eyelashes scrape the back of the lens in their eyeglasses; the lenses could be made with a steeper base curve than the standard base curve to remedy this problem. Although Dr. Walby testified that there are optical reasons for ordering a lens with a special base curve, he did not explain any reasons except those noted. Ady Optical ordered lenses with special base curves for Recipients 1, 2, 4 through 8, 11 through 14, and 17 through There is nothing on the laboratory order forms for these recipients to indicate that special base curves for the lenses ordered were optically necessary, and there is nothing inherent in the prescriptions that would justify lenses with special base curves. On the laboratory order forms for all of the above recipients except for Recipient 8 and Recipient 23, the special base curve specified was "variable," "special," "thinnest," "flat," "flattest," and "match Rx." These descriptive terms do not provide a specific base curve measurement to the laboratory, and the base curve measurement was determined by the laboratory rather than by an optician. On the laboratory order form for Recipients 8 and 23, base curve measurements of +4.0 and +6.0, respectively, were specified; these base curve measurements are, however, standard for the prescriptions of Recipients 8 and 23. The claims submitted by Ady Optical for payment for lenses with special base curves for these recipients are, therefore, disallowed. The laboratory order forms for Recipients 10, 15, 16, 20, and 30 did not include an order for lenses with special base curves. The claims submitted by Ady Optical to Medicaid for payment for lenses with special base curves for these recipients are disallowed. Oversized lenses Pursuant to the Coverage and Limitations Handbook, Medicaid will pay for oversized lenses, assigned procedure code V2780, for recipients whose eye-size is 56 millimeters or greater. Ady Optical submitted a claim to Medicaid for payment for oversized lenses for Recipient 23. Recipient 23's eye-size was specified on the laboratory order form as 50 millimeters, and the claim for payment for oversized lenses for this recipient is disallowed. Claims not supported by documentation All claims submitted to Medicaid for Recipient 6 for lenses ordered on June 13, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 9 for August 11, 1999, and for October 28, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 10 for lenses ordered on September 29, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 19 for lenses ordered on May 29, 1999, and June 12, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 22 for lenses ordered on April 7, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 26 for lenses ordered on July 16, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 27 for lenses ordered on August 23, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. Claims containing billing errors Mr. Jimenez does not challenge the disallowance of claims billed in error, specifically the claims for bifocal seg widths of over 28 millimeters for Recipients 20, 23, 26, and 27. Summary The evidence presented by AHCA is sufficient to support its determination that Ady Optical received Medicaid overpayments in the amount of $45,914.17.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Ady Optical, Inc., received overpayments from the Medicaid program in the amount of $45,914.17 during the period extending from January 1, 1999, through June 30, 2000, and requiring Ady Optical, Inc., to repay the overpayment amount. DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 27th day of May, 2004.
Findings Of Fact On or about March 15, 1990, A.J.F., an 86 year old white male went to the office of Respondent for the purpose of getting an eye examination and new glasses. A.J.F. had lens implants in both eyes in 1984 and had some astigmatism. Respondent examined A.J.F. and prepared a prescription for new glasses for A.J.F. The glasses were made by Disston Optical, a company independent of Respondent, but located in the same building as Respondent's office. A.J.F. picked up his glasses a week or two after his prescription was written and started home with them. After driving with the new glasses for about five minutes, A.J.F. concluded that he could not see well through the right lens of the glasses and replaced them with his old glasses. Later that evening, A.J.F. tried to read with his new glasses and again found he could not see well through the right lens. Within 24 hours of picking up these new glasses, A.J.F. returned to Respondent's office with the glasses complaining that he couldn't see well through the right lens. Respondent told A.J.F. that he should wear the glasses for a week or two before deciding they were unacceptable. A.J.F. demurred, and Respondent took the glasses from A.J.F. and walked into the back of his office. Respondent made no offer to check the glasses or reexamine A.J.F. Earlier A.J.F. had problems with glasses prescribed by another optometrist and complained to the optometrist who put the glasses in A.J.F.'s pocket. Although A.J.F. wrote a letter to Medicare not to pay for the unsatisfactory glasses, he found they did pay because he had taken the glasses. A.J.F. did not intend to repeat that mistake. Following Respondent's refusal to do anything about A.J.F.'s glasses, A.J.F. complained to the Department of Professional Regulation and sent a letter to a Channel 8 TV ombudsman (8 on your side) complaining of Respondent and optometrists in general. The complaint of A.J.F. was investigated by Petitioner which investigation included A.J.F.'s medical records from Respondent and from an ophthalmologist previously seen by A.J.F. and also seen by the ophthalmologist subsequent to having been seen by Respondent. These records show that Respondent's prescription for the right eye of A.J.F. contained an axis of 45 degrees for the astigmatism adjustment while prior examinations contained an axis of 85 to 95 degrees for this same adjustment. Following his failure to obtain satisfactory glasses from Respondent, A.J.F. went to the ophthalmologist he had previously seen, Dr. Don B. Knapp, II, M.D., to obtain glasses. Dr. Knapp's examination on June 7, 1990 (Exhibit 2) determined the astigmatism field adjustment was 85 degrees for the right eye. The axis for the astigmatism in A.J.F.'s right eye of 90-95 degrees in earlier examinations, a 45 degree axis in Respondent's examination, and an 85 degree axis in Dr. Knott's examination a couple of months after Respondent's examination constitutes a significant change which would indicate a distinct possibility exists that the axis determined by Respondent was inaccurate. The fact that there was approximately a 45 degree change in this axis between A.J.F.'s earlier examination and the examination conducted by Respondent should have alerted Respondent that his examination could have been in error when A.J.F. returned with the glasses complaining that he could not see clearly through the right lens. An error of that magnitude could very well lead to the patient being unable to see through the glasses. By failing to conduct a further examination of A.J.F. or to check the lens to see if it was made in accordance with the prescription he issued, Respondent was negligent in the practice of optometry. It is also clear that A.J.F. has a history of complaining about new glasses that are prescribed for him, and he can be characterized as a difficult patient. By Final Order entered June 22, 1989, Dr. Klugman was found guilty of violating Section 463.016(1)(g)(negligence of the practice of optometry) and Section 463.016(1)(h)(violation of Rule 21Q-3007, Florida Administrative Code), was fined $1,500, and his license was placed on probation for 12 months. By Final Order entered March 14, 1991, based upon a Stipulation, Respondent was ordered to pay a civil judgment entered against him in Hillsborough County Court in the amount of $177 and to refrain from violating Chapters 455 and 463, Florida Statutes.
Recommendation It is recommended that a Final Order be entered finding Mark L. Klugman, O.D., guilty of violating Section 463.016(1)(g), Florida Statutes, assessing an administrative fine of $2,000, suspension of his license for three months, and placing Mark L. Klugman's license on probation for a period of 12 months under such terms and conditions as the Board of Optometry deems appropriate. ENTERED this 7th day of October, 1991, in Tallahassee, Florida. K. N. AYERS 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 7th day of October, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except for finding 9. While a licensee on probation would be expected to be more careful than one not on probation, there is no legal requirement that the probationee exercise a higher standard of care than a licensee not on probation. Respondent's proposed findings are accepted, except for: Finding 3 - No evidence was submitted that Respondent verified the accuracy of the spectacles or that A.J.F. returned the spectacles to Disston Optical. Finding 4 - Last sentence rejected. No evidence was submitted that A.J.F. returned the spectacles to Disston Optical. COPIES FURNISHED TO: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399-0792 Mark L. Klugman 4201 49th Street North No. 202 St. Petersburg, FL 33709 Patricia Guilford Executive Director Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
