Findings Of Fact At all times material hereto, Respondent was licensed to practice dentistry in the State of Florida, having been issued license number DN-0000975. Respondent has been licensed to practice dentistry in this State since 1944, and there is no evidence in the record to indicate that he has previously been the subject of a complaint, investigation or license disciplinary action. Respondent was a participant in the Medicaid program, at all times material hereto. He executed a provider agreement with the Department of Health and Rehabilitative Services, under the terms of which Medicaid paid a total of $300 for a set of upper and lower dentures, and he was allowed to bill the patient for a 5% co-payment in addition to the amount paid by Medicaid. Participants in the program specifically agreed to accept the Medicaid-payment in lieu of their usual and customary charges, and not to bill or accept payments from patients, with the sole exception of the 5% co-payment for dentures. Billings to Medicaid could only be made after services were rendered. The Medicaid program reimbursed providers $8.00 for a single surface amalgam restoration, $16.00 for two surfaces, and $24.00 for three of more surfaces. The maximum allowable fee under the Medicaid program for a complete upper set of dentures was $150.00, and for a complete lower set, $150.00. Alveolectomies were reimbursed at $35.00 per quadrant. Between November 4, 1983 and December 15, 1983, Respondent rendered dental services to Geraldine Jones, for which he subsequently billed, and was paid by, Medicaid. The billings were for extracting fifteen teeth, performing three alveolectomies, and fitting the patient with complete upper and lower dentures. Respondent did not perform any of these services for Jones. Therefore, the $423 paid to him by Medicaid was an overpayment, and a payment for services not performed. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Velma Mondy between May 11, 1983 and June 16, 1983. The billings were for restoration of a total of eighteen tooth surfaces. On or about June, 1985, an examination of Mondy's teeth by Dr. Charles Kekich, dental consultant with the Department of Health and Rehabilitative Services, who was accepted as an expert in dentistry, revealed that she had a total of only six surfaces restored. Therefore, Respondent billed and received an overpayment from Medicaid in the amount of $96.00 for services not rendered to this patient. Dental services which were allegedly rendered to Bridget Bryant by Respondent between September 12 and 26, 1983, were billed to Medicaid, and Respondent received payment for restoring twelve teeth, with a total of thirty surfaces. On or about June, 1985, an examination of Bryant by Dr. Kekich revealed that no more than fifteen restorations had been performed, resulting in an overpayment from Medicaid to Respondent of at least $120.00. Respondent billed and was subsequently paid by Medicaid for services rendered to Joyce Johnson between December 22, 1983 and January 1, 1984. These billings were for extracting three teeth and restoring ten, with a total of twenty surfaces. During June, 1985, Dr. Kekich examined Johnson and found that none of the work billed by Respondent had been performed. Therefore, an overpayment of $184.00 was made by Medicaid for services billed, but not rendered by the Respondent. Between January 25, 1984 and March 21, 1984, Respondent performed certain dental work on Ernest Macon, for which he billed and was paid by Medicaid for extracting two teeth and restoring nine teeth, with a total of twenty-three surfaces. Dr. Kekich's examination of Macon during June, 1985, revealed that only one tooth had been extracted and no more than four surfaces had been restored. Therefore, Respondent over billed and received payment from Medicaid for services not rendered to Macon in the amount of $159.00 Respondent billed and was subsequently paid by Medicaid for dental services rendered to Derrick Ealy between March 15 and 27, 1984. These billings were for restoring four teeth, with a total of eleven surfaces. An examination of Derrick Ealy by Dr. Kekich in June, 1985, revealed that only two surfaces had been restored, resulting in an overpayment by Medicaid of $72.00 for services billed, but not rendered. An examination of Kimberly Ealy in June, 1985, revealed that none of the dental services for which Respondent had billed and been paid by Medicaid had, in fact, been performed. Respondent had billed Medicaid for extracting one tooth and restoring a total of thirteen surfaces on five teeth between March 13 and 22, 1984. Therefore, an overpayment of $114 was made by Medicaid for services billed, but not rendered to Kimberly Ealy. Respondent performed dental services for Corey Oliver between March 27, 1984 and May 6, 1984, and in connection therewith, he billed Medicaid for extracting one tooth and restoring seven teeth with a total of seventeen surfaces. An examination of Oliver by Dr. Kekich in June, 1985, revealed that roots of the tooth supposedly extracted by Respondent remained, and that eleven of the surfaces for which bills had been submitted had not been restored. Therefore, an overpayment of at least $95.00 was made by Medicaid for services billed, but not rendered to this patient. From April 16, 1984 to August 7, 1984, Respondent extracted twenty- seven teeth from Lillian Corouthers, and fitted her for a full set of dentures. He billed Medicaid for a total of $1,215 for these services, and received payment from Medicaid of $620.35. In addition thereto, he billed and received from this patient a total of $269. This co-payment exceeds the allowable 5% co- payment under the Medicaid program by $236.35. There is no evidence that Respondent ever refunded any portion of this overpayment to Corouthers. Although Respondent billed and was paid by Medicaid for services performed on Shawn Smith between July 11 and 24, 1984, which allegedly consisted of restoring eight teeth with a total of twenty-one surfaces, an examination of this patient by Dr. Kekich in May, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $168 was made by Medicaid for services not rendered by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Allan Smith between July 6 and 23, 1984. The billings were for extracting two teeth and restoring a total of seventeen surfaces. Dr. Kekich's examination in May, 1985, revealed that only one extraction had been performed, and no restorations. As a result, an overpayment of $146 was made by Medicaid for services not rendered to Allan Smith. Respondent pulled one tooth and provided a complete set of dentures to Mose Tobias in July, 1984. For these services Respondent billed Medicaid for a total of $490, and received payment from Medicaid in the amount of $321.10. He also billed and received payment from this patient in the amount of $119, which exceeds the co-payment allowable under the Medicaid program by $112.11. Between July 6 and August 14, 1984, Respondent performed dental services for Angela Pleas, and in connection therewith, he billed and was subsequently paid by Medicaid for two extractions and sixteen surface restorations. During a June, 1985, examination of Pleas, it was revealed that no more than one extraction and nine restorations had been performed, resulting in an overpayment by Medicaid of $82.00 for services billed but not rendered to Pleas by the Respondent. Callie Wilson was treated by the Respondent between August 2 and 23, 1984, and in connection therewith, he billed Medicaid a total of $470.00 for an examination, x-rays, and a complete set of dentures. Respondent received payment from Medicaid in the amount of $162.45 for these services. In addition thereto, Respondent billed and received from Wilson an amount that exceeds the allowable 5% co-payment under the Medicaid program. The exact amount of this overpayment, however, cannot be determined, but it appears to have been an overpayment of between $45.00 and $95.00. Respondent billed and was subsequently paid by Medicaid for extracting one tooth and restoring twenty-two surfaces for Maruise Woods between September 4 and 25, 1984. An examination of Woods by Dr. Kekich in May, 1985, revealed that no surface restorations had been performed. Therefore, an overpayment of $172 was made by Medicaid for services not rendered. Between September 21 and 27, 1984, Respondent claims to have performed dental services for Sharon Woods, for which he then billed and subsequently received payment from Medicaid for the restoration of four teeth, with a total of twelve surfaces. In May, 1985, Dr. Kekich examined Sharon Woods, and found that none of this work had been performed. Therefore, Respondent overbilled Medicaid $96 for services not rendered to this patient. Respondent billed and was subsequently paid by Medicaid for dental services rendered to John Aberdeen between September 27 and November 21, 1984. These billings were for extracting fifteen teeth, and providing a complete set of dentures. A June, 1985 examination of this patient by Dr. Kekich revealed that only one tooth had been extracted. Respondent received an overpayment from Medicaid in the amount of $389.85 for services not rendered to Aberdeen. Bills were submitted to Medicaid and payment received for services Respondent claims to have performed on Mercedia Lanier between October 1 and 19, 1984. These billings were for restoring seven teeth, with a total of eighteen surfaces. Dr. Kekich's examination of Lanier in May, 1985, revealed that none of the work billed by Respondent had been performed. Therefore, an overpayment of $144.00 was made by Medicaid for services not rendered to Lanier by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Patricia Hall between November 20 and December 7, 1984. These billings were for seven extractions, and the restoration of five teeth with twelve surfaces. In June, 1985, Dr. Kekich examined Hall and found that no more than four extractions, and five surface restorations had been done. Medicaid made an overpayment of $83.00 in connection with services billed, but not rendered to Hall. Claims were submitted to Medicaid by Respondent in connection with services allegedly performed on Eugenie Perry between January 17 and February 11, 1985. These billing were for the restoration of twenty-two surfaces, but Dr. Kekich found in May, 1985, that none of these restorations had been performed. As a result, Medicaid made an overpayment to Respondent of $176.00 for services not rendered. Tessie McRae was a patient of Respondent's in 1985, and claims were filed with Medicaid by Respondent for services between February 5 and March 28, 1985, consisting of ten extractions, four alveolectomies, and a complete set of dentures. When Albert Ravenna, special agent for Medicaid fraud with the Auditor General's Office interviewed McRae in June, 1985, she still had her own teeth and did not have dentures. Respondent did provide her with dentures subsequent to payment for these services by Medicaid. However, an overpayment of $401.55 was made by Medicaid since the services for which billings were submitted by the Respondent had not been performed prior to the filing of these claims. Respondent billed Medicaid for a total of $600 in connection with services he provided to Cora Griffin between February 3 and 11, 1985. Specifically, these bills were for an exam, x-rays and a complete set of dentures. Medicaid paid Respondent $311.60 for these services, and in addition thereto, he billed and collected from Griffin a total of $180. This amount paid by the patient exceeds the allowable co-payment under the Medicaid program. Respondent billed and subsequently received payment from Medicaid for services rendered to Kenneth Gainer between January 25 and March 22, 1985. The billings were for restoring ten teeth with a total of twenty-six surfaces. An examination of Gainer by Dr. Kekich in June, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $208.00 was made by Medicaid for services not rendered. Billings were submitted to Medicaid by Respondent for services allegedly performed on Lawrence Harvey between March 14 and 19, 1985, and consisting of two extractions and eight surface restorations. Dr. Kekich found, upon examining the patient in June, 1985, that none of this work had been performed. Therefore, an overpayment of $84.00 was made by Medicaid for services not rendered. Respondent billed and was subsequently paid by Medicaid for services rendered to Brian Harvey between March 13 and 29, 1985. These billings were for restoring six teeth with a total of twelve surfaces. Respondent did not perform these services, and, therefore, the payment of $96.00 which he received for these services from Medicaid represents an overpayment for services not rendered. According to billings submitted by Respondent to Medicaid, he treated Felicia Harvey between March 21 and 29, 1985. These billings were for restoring four teeth, with a total of eight surfaces. An examination of this patient by Dr. Kekich in June, 1985, revealed that none of this work had been performed, and, therefore, an overpayment of $64.00 was made by Medicaid for services not rendered. On or about December 19, 1986, Respondent plead nolo contendere to seventeen counts of grand theft and five felony counts of public assistance fraud in violation of Sections 812.014 and 409.325, Florida Statutes, and was adjudicated guilty. The billings that Respondent signed and submitted to Medicaid, which are referenced in the above findings of fact, were prepared by his office receptionist, Ida Roundtree, who has been employed by him for twenty-two years, and who is responsible for the preparation and filing of all insurance claims based upon patient dental charts prepared by Respondent or his dental hygienist. Respondent testified that he does not consider it to be his responsibility to familiarize himself with the various requirements for insurance or Medicaid reimbursement. He relies entirely on Roundtree for this, and clearly does not consider the preparation of reimbursement or billing "paperwork" to be within the practice of dentistry. Roundtree admitted that she prepared Medicaid billings for work which was yet to be done in some cases. She would just fill in dates when the work supposedly had been done so that Medicaid would pay the claim. She testified she was unaware that Medicaid allowed a 5% co-payment only for dentures, and that no co-payment could be made for any other dental services under the program. Further, she admitted that she falsified billings by including services not performed so that Respondent would receive more money under the Medicaid program. The evidence does not establish that she was directed to falsify Medicaid billings by the Respondent or that she informed him of her practices, but it was established that he did not check, or in any way attempt to verify, the billings which she prepared before he signed them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent's license for a period of THREE months, and imposing an administrative fine against Respondent in the amount of $6,000.00. DONE AND ENTERED this 24th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX (DOAH Case No. 88-2961) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Rejected as unnecessary. 6-8 Adopted in Finding of Fact 2. 9-16. Rejected as unnecessary. Adopted in Findings of Fact 30 and 31. Rejected as unnecessary and as legal argument. 19-25. Adopted in Findings of Fact 30 and 31, but otherwise rejected as simply a summation of testimony. 26. Rejected as unnecessary. 27-30. Adopted in part in Finding of Fact 4. 31-34. Adopted in part in Finding of Fact 5. 35-39. Adopted in part in Finding of Fact 3. 40-42. Adopted in part in Finding of Fact 6. 43-45. Adopted in part in Finding of Fact 7. 46-48. Adopted in part in Finding of Fact 8. 49-51. Adopted in part in Finding of Fact 9. 52-55. Adopted in part in Finding of Fact 10. 56-62. Adopted in part in Finding of Fact 11. 63-65. Adopted in part in Finding of Fact 12. 66-68. Adopted in part in Finding of Fact 13. 69-72. Adopted in part in Finding of Fact 14. 73-76. Adopted in part in Finding of Fact 15. 77-82. Adopted in part in Finding of Fact 16. 83-86. Adopted in part in Finding of Fact 17. 87-90. Adopted in part in Finding of Fact 18. 91-93. Adopted in part in Finding of Fact 19. 94-97. Adopted in part in Finding of Fact 20 98-100. Adopted in part in Finding of Fact 21. 101-103. Adopted in part in Finding of Fact 22. 104-109. Adopted in part in Finding of Fact 23. 110-116. Adopted in part in Finding of Fact 24. 117-119. Adopted in part in Finding of Fact 25. 120-122. Adopted in part in Finding of Fact 26. 123-127. Adopted in part in Finding of Fact 27. 128-130. Adopted in part in Finding of Fact 28. Rejected as unnecessary and duplicative. Adopted in Finding of Fact 29. (Note: In addition to adopting, in part, proposed findings of fact 27-130, as shown above, these proposed findings are otherwise rejected as unnecessary or as not based on competent substantial evidence.) Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 2. Rejected as irrelevant. 5-7. Adopted in Finding of Fact 30. 8. Rejected as irrelevant. 9-10. Adopted in Finding of Fact 30. 11-17. Adopted in Findings of Fact 30 and 31. 18-19. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 22-23. Adopted in Finding of Fact 31. 24. Rejected as irrelevant. 25-28. Adopted in Finding of Fact 31. 29-30. Adopted in Finding of Fact 30 and 31. 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 32-36. Rejected as irrelevant. 37. Adopted in Finding of Fact 29, but otherwise rejected as irrelevant. 38-47. Rejected as irrelevant. 48-49. Adopted in Finding of Fact 4, but otherwise rejected as irrelevant. 50-55. Rejected as irrelevant. 56-60. Adopted and Rejected in Finding of Fact 21, but otherwise rejected as irrelevant. Rejected as argument on the evidence, not a finding of fact. Rejected in Finding of Fact 3. Rejected in Finding of Fact 6. Rejected in Finding of Fact 9. Rejected in Finding of Fact 14. Rejected in Finding of Fact 16. COPIES FURNISHED: Bruce D. Lamb, Esquire 730 South Sterling Street, #313 Tampa, Florida 33609-4582 John A. Powell, Esquire Florida Federal Building One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact An accusation was filed against Respondent by the Petitioner complaining that Respondent had allowed unlicensed personnel to perform certain acts and duties which required a license to perform. Subsequently the parties stipulated that Respondent's license to practice dentistry shall be suspended for a period of six months effective July 25, 1977. The opera- tion of said suspension will be cancelled thirty days after said date and thereafter Respondent will remain on probation, subject to periodic review for the remaining five months. Respondent admits that the facts set forth therein do constitute a violation of Sections 466.02, 466.04 and 466.24, Florida Statutes. The Petitioner in its final order dated July 25, 1977 accepted the stipulation and entered an order essentially quoting the stipulation: Ordered and adjudged: Respondent's license to practice dentistry shall be suspended for a period of six months effective July 25, 1977. The operation and said suspension will be cancelled thirty days after said date and thereafter Respondent will remain on probation, subject to periodic review for the remaining five months. On or about November 14, 1977 a second administrative accusation was filed by the Petitioner against Respondent Davis. It charged Respondent in part as follows: That during the thirty day period in which the license of James R. Davis, III, D.D.S., was suspended pursuant to the final order, James R. Davis, III, D.D.S., continued to operate and maintain his dental practice by allowing his assistants, employees, and other licensed dentists to see and examine his patients, perform dental treatment and charge for dental services rendered. That, based upon the above allegations, James R. Davis, III, D.D.S., has violated the laws of Florida and the standards of his profes- sion because he has been guilty of misconduct in his business affairs in such a manner as to bring discredit upon the dental profession in violation of Florida Statutes Section 466.24(3)(a. Respondent requested subject administrative hearing. The Petitioner, Florida State Board of Dentistry, contends that the Respondent violated the suspension order by continuing to operate and maintain his dental practice by allowing his assistants, employees, and two dentists to see and examine his patients, perform dental treatment, and charge for dental services rendered. Respondent, James R. Davis, III, contends that he did not violate the suspension order and denies that he has violated the laws of Florida and the standards of his profession, or that he has been guilty of misconduct in his business affairs in such a manner as to bring discredit upon the dental profession. The depositions of Thomas Guilday, Esquire and Michael Huey, Esquire and Richard Langley, Esquire were admitted by stipulation into evidence. The testimony of Dr. William B. Kent III, Dr. Bruce Mitchell, Jr., Sally Dawson, Charlotte Mullins, and Dr. James R. Davis III were presented in person. Other documentation pertinent to this hearing was admitted into evidence. The proposed Orders and memorandums were considered. The Respondent, Dr. Davis, has practiced dentistry since 1971 as an employee of a Professional Association, James R. Davis, III, D.D.S., P.A. During the period beginning July 25, 1977 and continuing up to and including August 25, 1977, Dr. Davis did not personally practice dentistry in any manner. He was out of the city and on vacation the major part of that time. Richard Langley, an attorney for Dr. Davis, informed Dr. Davis that the suspension did not pertain to the Professional Association offices of Dr. Davis or to its employees. It was the understanding of Mr. Langley through conversation with two attorneys for the Petitioner, Mr. Guilday and Mr. Huey, that the suspension by the Board went to Dr. Davis personally, and not to the Professional Association owned by Dr. Davis. Neither the Stipulation nor the Final Order which preceded this hearing mentioned the Professional Association and both are styled "Florida State Board of Dentistry, Petitioner, versus James R. Davis, Respondent." The Articles of Incorporation of James R. Davis III, D.D.S., P.A. is a matter of record having been filed August 16, 1971. The Professional Association is also indicated by his professional signs. Dr. William B. Kent, III and Dr. W. Bruce Mitchell, Jr. were issued Board of Dentistry duplicate licenses to practice dentistry in the Respondent Davis' dental offices at 826 DeSoto Street, Clermont, Florida. Doctors Kent and Mitchell practiced dentistry as associates or employees of James R. Davis III, D.D.S, P.A. during the period of Dr. Davis' suspension and absence. There are no guidelines, rules or regulations promulgated by the Petitioner Board which would have given Respondent Davis notice that the suspension would include his Professional Association and its employees. He was not notified verbally. It cannot be assumed that Dr. Davis would close his office except as to a secretary informing those who called that Dr. Davis would not be in for a month, as Petitioner contends he should have. A dentist would not abandon his practice for such a period of time without making provisions for patients, particularly emergency situations absent a clear direction to do so. There is no evidence to show that he was to close the office.
Recommendation Enter an order finding that James R. Davis III is not guilty of violating the laws of Florida and the standards of his profession. DONE and ENTERED this 6th day of March, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Office Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 James B. Byrne, Jr., Esquire 1335 CNA Building 255 South Orange Ave. Orlando, Florida 32801 J. Michael Huey, Esquire Huey and Camper 1020 East Lafayette Street Tallahassee, Florida 32301 Richard H. Langley, Esquire Post Office Box 188 Clermont, Florida 32711
The Issue The issues in this case are framed by the Notice of Intent to Issue an Order to Cease and Desist, filed by the Florida Insurance Commissioner on August 18, 1992, Dept. of Insurance Case No. 92-CA-058EMM, as modified by the parties' Joint Prehearing Stipulation, filed on March 18, 1993. The Cease and Desist Order alleges in Count I essentially that the United Dental Program of America (UDP) 2/ is a dental service plan that has been operating in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 637, Part III, Fla. Stat. (1991). Count II alleges essentially that, in so operating, UDP and one or more of the other respondents were guilty of various deceptive acts or practices prohibited by either Chapter 637, Part III, or by Chapter 624, Fla. Stat. (1991). In the parties' Joint Prehearing Stipulation, the Department of Insurance dropped all of the alleged deceptive acts or practices except the allegation that sales solicitation materials falsely guaranteed savings of 60 percent or more under the UDP product. Count III alleges essentially that UDP has been transacting insurance in Florida, through one or more of the named (and unnamed) individual respondents, without the authorizations required by Chapter 624, Fla. Stat. (1991). The Cease and Desist Order also seeks an administrative penalty against UDP in an amount not to exceed $1,000 per violation, and an administrative penalty of $10,000 against each of the other respondents for each dental service plan contract or insurance contract offered or effectuated in Florida.
Findings Of Fact At the time the Florida Insurance Commissioner filed the Notice of Intent to Issue an Order to Cease and Desist in this case, UDP was incorporated in the State of Delaware as United Dental Plan of America, Inc. On December 23, 1992, UDP filed a name change with the Secretary of State of Delaware, and the company has since been incorporated as United Dental Program of America, Inc. Before and after the name change, the company has been referred to as UDP, and the acronym "UDP," when used in this Recommended Order, may refer to the company either before or after the name change. The Department and UDP stipulated that, prior to August 18, 1992, Bob Rose, a/k/a Robert Rosenfeld, by a nationally accessible electronic telephone system, recorded a message of solicitation to subscribers, UDP sales associates, and potential sales associates, which was directed, in part, to Florida residents. They also stipulated that respondents Paul Sheldon, William C. Stinnett, Phillip Young, Richard A. Gilbert, John C. Sparks, Jean Joseph and Nick Virenza, a/k/a Nick Verrengia were UDP sales associates who sold UDP memberships in Florida prior to August 18, 1992. The individual named respondents did not enter into the stipulation referred to in the preceding paragraph. However, the UDP stipulation is viewed as evidence on which the findings in the preceding paragraph can be based. Prior to August 18, 1992, without Department approval, UDP sales associates in Florida, including the named respondents referred to in Finding 2, were active in selling subscriptions to UDP's Dental Program to Florida residents, and held meetings for the purpose of selling the Dental Program and recruiting sales associates. There are 1,981 subscribers in the State of Florida. There was no evidence as to which of the 1,981 subscriptions sold in the State of Florida were sold by which of the individuals identified in Finding 2. UDP is not, and has never been, licensed under the Florida Insurance Code. UDP sells an annual membership to its subscribers. There is an individual membership costing $85 a year and a family membership costing $150 a year. If UDP resumes operations in Florida, the annual fees will be $140 for senior couples, $155 for other couples, $170 for families, $80 for senior individuals, and $95 for other individuals. Subscribers are given a one year membership card. For one year from the subscription date, the subscriber receives an annual no-cost dental checkup and x-rays pursuant the UDP subscriber and provider agreements. Subscribers are provided a list of dentists in their geographic area (and elsewhere, if requested) (a "dental directory") who have entered into an agreement with UDP to be on the list. By agreeing with UDP to be on the list, dentists agree that, if they accept a subscriber who has not yet had his or her annual checkup and x-rays, they will do the checkup and x-rays at no cost. They also agree to charge the subscriber for other dental services performed during the subscription year in accordance with a schedule of presumptively reduced fees or, if a procedure is not scheduled, for a 25 percent discount from their usual and customary fees. UDP marketing materials assert that the scheduled fees are lower than the "typical costs." If participating dentists accept subscribers, they agree to abide by the agreement with UDP described in the preceding paragraph. The participating dentists are not obligated to accept subscribers as patients. They have "the right within the framework of professional ethics to reject any patient seeking [their] professional services." The contractual documentation does not further clarify whether, once a participating dentist begins a procedure for a subscriber, the dentist is obligated to complete it or whether, once a procedure is completed for a patient, the dentist is required to accept the patient if the patient returns for additional procedures or services. Notwithstanding the unclear contractual provisions, UDP professes a desire to effectuate an understanding with participating dentists that they will accept UDP patients "on an equal basis" with their other patients. It is not clear how UDP would propose to reach or enforce this understanding. Subscribers are free to use, or attempt to use, any dentist on the list, or directory, and are free to change dentists as often as they choose. (They also remain free to use any dentist not on the list, or directory, under any financial arrangements to which the patient and dentist might agree, but they would not be entitled to benefits under the UDP program.) Except for the annual checkup and x-rays, they are obligated to pay the discounted fees directly to the dentist. Under the UDP program, they expect, and are entitled to, no payment from UDP, either to them or to the dentist. Dentists who agree to participate in the UDP program are also free to maintain their own private practice and to participate in any other dental insurance or plan or program that they wish. Under the UDP program, they expect, and are entitled to, no payment of any kind from UDP. If they perform the free annual checkup and x-rays for a subscriber, they receive no payment from any source for those services. If they perform no other services for a subscriber, the dentists have no recourse against either the patient or UDP. If they perform other services for a subscriber, they are entitled to look only to the subscriber for payment, and only in accordance with the UDP fee schedule, or 25 percent discount, whichever applies. UDP is not liable to the dentists for payment of any part of a subscriber's fees. If the subscriber does not pay, the dentists have no claim against UDP. Under the UDP program, the dentists who agree to participate in the UDP program are solely responsible for dental advice and treatment. UDP has no control over the dentist's practice, rates charged (except insofar as the UDP fee schedule applies, or 25 percent UDP discount is necessary), the dentist- patient relationship, or the dentist's personnel or facilities. UDP and the dentists who agree to participate in the UDP program also agree that the dentists will maintain malpractice insurance coverage for their practices in an amount not less than $300,000 per incident. The dentists must provide UDP with a copy of the malpractice insurance. There was evidence that an early brochure developed by UDP before 1992 contained an untrue guarantee of savings of at least 60 percent. But there was no evidence on which a finding of fact can be based that UDP, through any representative, whether or not named as a respondent to this proceeding, ever delivered a copy of the brochure, or made the misrepresentation, to anyone, much less someone in Florida. In addition, other information also was developed contemporaneously from which it could be determined that savings of at least 60 percent were not guaranteed. The Department first notified UDP that the Department believed UDP and the other named respondents were in violation of the Florida Insurance Code by letter dated March 5, 1992. Between March 5, and August 18, 1992, UDP and the Department engaged in numerous informal telephone and written communications through which UDP attempted in good faith to persuade the Department that UDP was not subject to regulation under either Chapter 637, 624 or 626 and that UDP was not in violation. It was not established how many, if any, of the 1,981 subscriptions UDP sold in Florida occurred after March 5, 1992. According to the Joint Stipulation between the Department and UDP, none of the subscriptions were sold after August 18, 1992, the date of the Cease and Desist Order issued against UDP and the other named respondents. There was no evidence contrary to this stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order: (1) finding that United Dental Program, Inc. (UDP) is a dental service plan corporation subject to regulation under Part III, Chapter 637, Fla. Stat. (1991); (2) finding that individuals who represent UDP are subject to regulation under Section 637.415, Fla. Stat. (1991); (3) finding that UDP and some of its representatives sold 1,981 subscriptions in Florida without having the authorization required under Part III, Chapter 637, Fla. Stat. (1991); (4) requiring UDP and the individual respondents named in Finding 2 to cease and desist from operating the UDP dental service plan corporation in Florida without having the authorizations required under Part III, Chapter 637, Fla. Stat. (1991); and (5) assessing against UDP an administrative penalty in the amount of $5,000. RECOMMENDED this 23rd day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 23rd day of April, 1993.
The Issue The issue in the case is whether the State of Florida Employees Group Health Self Insurance Plan Benefit Document provides coverage for a maxillary subperiosteal implant surgical procedure under the circumstances described below.
Findings Of Fact At all material times, Petitioner has been insured under the State of Florida Employees Group Health Self Insurance Plan Benefit Document, effective July 1, 1988 (the "Plan"). Dr. Clark F. Brown, Jr. is a dentist licensed to practice in the State of Florida. His specialty is dental implantology. The subperiosteal implant, which is the subject of this case, is a framework that rests on top of the bone underneath the tissue. Following the insertion of the framework, the tissue reattaches to the jawbone, thereby securing the framework to the bone. The implant procedure takes two days, but can be performed in Dr. Clark's office. On the first day, a direct bone impression is taken. In the process, the gum tissue is cut along the entire remaining ridge and lifted back almost to the base of the eye, floor of the nose, and palate. After the impression is taken, the incision is closed with sutures. On the next day, the stitches are removed, the implant is installed, and the incision again closed with sutures. On July 31, 1987, Petitioner visited Dr. Clark and complained of difficulties wearing his upper denture. Upon examination, Dr. Clark discovered that Petitioner lacked adequate bone to retain an upper denture. Lacking about 90% of the bone in the vicinity of the upper arch, Petitioner's upper denture was highly unstable. By letter dated August 8, 1987, Dr. Clark informed the Plan administrator of Petitioner's condition and proposed a full maxillary subperiosteal procedure for the installation of an orthopedic augmentation appliance. By letter dated December 11, 1987, the Plan administrator informed Dr. Clark that the proposed procedure was not covered under the Plan. The letter explains that dental services are a specific exclusion unless performed "as the result of an accident where a natural tooth has been damaged and the treatment is rendered within 120 days from the date of the accident." On December 17, 1987, Dr. Clark relined the denture that fit Petitioner the best. As he had warned Petitioner in advance, the procedure was unsuccessful. On June 26, 1988, Dr. Clark prepared a new upper denture in preparation for the installation of mucosal implants, which utilize the gum for support. Dr. Clark and Petitioner pursued this treatment largely because it was less expensive that the subperiosteal implant for which the Plan administrator had refused coverage. Dr. Clark later installed these implants, but they were unsuccessful due to the lack of bone. They were removed in November, 1988. At this point, the subperiosteal implant remained the only available treatment for Petitioner. On February 2, 1989, Dr. Thomas Priest, a physician licensed to practice in the State of Florida, examined Petitioner and found that his gums were severely receded, his alveolar ridge was absent, and his lower teeth were in poor shape. Considering the complaints of Petitioner concerning digestive disorders and weight loss, Dr. Priest determined that Petitioner would be a good candidate for, and might benefit from, the maxillary subperiosteal implant. Dr. Priest reached this conclusion based in part on the experience of other patients who had undergone similar procedures. Dr. Clark and the Plan administrator exchanged correspondence through the first half of 1989, at which time the administrator, in response to a threat of litigation, stated that "the preparation of the mouth for dentures is considered to be a dental procedure and non-covered." She then referred Dr. Clark to Respondent. The loss of bone was probably caused by Petitioner wearing loose upper dentures for an extended period of time. However, severe periodontal disease, which cannot be ruled out as a possible cause, could also result in the loss of bone. Another potential cause of the loss of bone is trauma from accidental injuries, such as those typically suffered in an automobile accident. However, this potential cause can be ruled out in Petitioner's case. No accident has necessitated the subject implant procedure, nor has any accident preceded the proposed procedure by 120 days. The Plan contains three coverage sections. Section II describes "Covered Hospital and Other Facility Services." Section III describes "Covered Medical--Surgical Benefits." Section IV describes "Other Covered Services." Section II deals with hospitals primarily and is not applicable to the present case. Subsections III.A. and D. provide coverage for "medically necessary inpatient/outpatient services provided to an insured by a . . . physician for the treatment of the insured as a result of a covered accident or illness." Section IV provides coverage for "medically necessary services when ordered by a physician for the treatment of an insured as a result of a covered accident or illness," including, at Subsection IV.D., "other medical supplies and prostheses . . . determined by the Administrator to be medically necessary for the treatment of an insured's condition." The phrase, "covered accident or illness," which is not defined in the Plan, apparently refers to accidents or illnesses that are not elsewhere excluded, such as in Section VII on Exclusions and Section VIII on Limitations. Section VII.A. excludes "services for cosmetic surgery or treatment unless the result of a covered accident as provided in Subsection VIII.A." However, Subsection VII.A. adds that cosmetic surgery is covered if it is: a medically necessary procedure in the correction of an abnormal bodily function; [or) for reconstruction to an area of the body which has been altered by the treatment of a disease, provided such alteration occurred while the insured was covered under the Plan. Subsection VII.G excludes: Services and supplies in connection with dental work, dental treatment, or dental examinations unless the result of a covered accident as provided in Subsection VIII.B., except that in no case shall orthodontia be covered. Subsection VIII.A. provides the following limitation upon coverage: Cosmetic surgery or treatment necessary for the repair or alleviation of damage to an insured covered by the Plan if such surgery or treatment is the result of an accident sustained while the insured is covered under the Plan and actually performed while the Plan is in force . . Subsection VIII.B. provides the following limitation upon coverage: Any dental work, dental treatment or dental examinations medically necessary for the repair or alleviation of damage to an insured is covered by the Plan only if such work, treatment or examination is (1) the result of an accident sustained while the insured is covered under this Plan and (2) rendered within . . . 120 days of the accident. . Subsection I.AX. defines a physician to include: a licensed dentist who performs specific surgical or non-dental procedures covered by the Plan, or who renders services due to injuries resulting from accidents, provided such procedures or services are within the scope of the dentist's professional license. Subsection I.AM(b). defines "medically necessary" to mean that: in the opinion of the Administrator the service received is required to identify or treat the illness or injury which a physician has diagnosed or reasonably suspects. The service must (1) be consistent with the diagnosis and treatment of the patient's condition (2) be in accordance with standards of good medical practice, and (3) be required for reasons other than convenience of the patient or his/her physician. The fact that a service is prescribed by a physician does not necessarily mean that such service is medically necessary. Subsection I.AE. defines "illness" as: physical sickness or disease, . . . bodily injury, [or] congenital anomaly . .
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Administration Commission enter a Final Order determining that the proposed procedure, under the facts of this case, is covered by the Plan. DONE and ORDERED this 21 day of March, 1989, in Tallahassee, Florida. ROBERT E. MEALE 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 21 day of March, 1990. COPIES FURNISHED: Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 William F. Lennan 740 Hunan St., N.E. Palm Bay, FL 32907 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact William N. Abood, D.D.S., is subject to the jurisdiction of the Florida State Board of Dentistry. William N. Abood, D.D.S., is a licensed dentist in the State of Florida, license number 1253, last renewal certificate issued September 3, 1975, practicing at 2324 Post Street, Jacksonville, Florida. That, during the period of time between approximately August, 1974, and November, 1975, Cynthia Roundtree was an employee of William N. Abood, D.D.S. While an employee of Dr. William N. Abood, and acting under his control and supervision, Cynthia Roundtree was permitted to perform adjustments to partials and dentures, cemented and adjusted the occlusion of temporary crowns, and cemented and replaced crowns which had fallen out. Cynthia Roundtree is not licensed by the Florida State Board of Dentistry to practice dentistry or dental hygiene. While an employee of Dr. Abood, and acting under his control and supervision, Shirley Barrie was permitted to perform the adjustment of partials and dentures, cemented and adjusted the occlusion of temporary crowns, and placed materials in the dentures for temporary reliner and and adjusted the occlusion. Shirley Barrie is not licensed by the Florida State Board of Dentistry to practice dentistry or dental hygiene. That both assistants when making adjustments to partials or dentures with or without Dr. Abood's inspection or instruction, would examine the appliance and mouth, make a diagnosis as to the problem, then Proceed to correct the problem by grinding on the appliance and adjusting the occlusion. Dr. Abood permitted both assistants to cement temporary crowns which they had prepared from preformed aluminum crowns, then cut and trim the crown, adjust the occlusion by using articulating paper and cement it to the tooth. Cynthia Roundtree would on occasion, re-cement permanent crowns which had fallen out by grinding the cement out, drying the Patient's tooth, cementing once again the permanent crown and finally placing it on the tooth. Shirley Barrie would on occasion, place temporary reliners in dentures or partials by mixing vista gel which was used for the reliner and placed in the appliance, then the appliance would be placed in the mouth and the occlusion adjusted if necessary. Dr. Abood testified that he believed the procedures he authorized his assistants to perform in his office was a common practice among the dental profession; that he was not affirmatively aware that it was contrary to the laws and rules administered by the Dental Board and that he no longer permits his staff to do the same.
