Findings Of Fact The following facts are based upon the stipulation of the parties (Exhibit 1): Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Massachusetts in 1979. Petitioner, KAREN G. THIBODEAU, was licensed as an optician by the State of Connecticut in 1980. Petitioner, KAREN G. THIBODEAU, was an apprenticed optician with various licensed opticians in the States of Massachusetts and Connecticut for the past four to five years. Petitioner, KAREN G. THIBODEAU, on or about May, 1980, while living and employed in Connecticut, made a telephone call to the Board of Opticians in the State of Florida, with reference to her eligibility in taking the examination for a dispensing opticians license. After Petitioner detailed her formal training and work experience, she was advised that she was qualified to take the Florida Opticians Examination as the result of her having been licensed in both the States of Massachusetts and Connecticut and having five years apprentice experience. The Board of Opticians then mailed her an application form which she filled out and returned to them with a seventy five dollar ($75.00) money order for the examination and twenty dollars ($20.00) to register with the State of Florida. As a direct result of this telephone conversation with a representative of the Board of Opticians of the Department of Professional Regulations of the State of Florida, the Petitioner, KAREN G. THIBODEAU, quit her job in Connecticut and moved to Florida anticipating taking the aforesaid examination. After she had moved to Florida in reliance of the representations made to her by the Board of Opticians, she was notified that she was not qualified to take the said examination. Petitioner's application was considered by the Board of Opticianry on July 10, 1981 in Tallahassee, Florida and it was found that the Petitioner, KAREN G. THIBODEAU, did not meet the statutory requirements of s. 484.007(1), Florida Statutes (1979), although at the time she contacted the Board, she did meet the requirements of s. 484.03, Florida Statutes (1977), which was the prior licensing statute for the Board of Opticianry and was no longer in effect at the time. The Board further held that they did not have the authority to admit Petitioner, KAREN G. THIBODEAU, into the examination .for licensure as an optician in the State of Florida since she did not qualify under the current statute, s. 484.007(1), Florida Statutes (1979), even if they felt she had relied on the Board's prior representations that she would be allowed to take the examination to her detriment. The sole issue for consideration at this hearing is whether the Board of Opticianry has the authority to allow the Petitioner, KAREN G. THIBODEAU, to sit for the next examination for a license to be a dispensing optician in the State of Florida on the basis that the Board of Opticianry is estopped for asserting the new statute as a denial of her right to sit for the next exam since she has detrimentally relied on their representation that her qualifications under the old statute, s. 484.03, Florida Statutes (1977), qualified her to sit immediately for said examination." The following are additional Findings of Fact based upon testimony adduced at the hearing: When Petitioner made her telephone call to the Board of Opticians in May, 1980, she asked to speak to one of the Board members, but was assured by a woman who answered the phone that she could answer any questions Petitioner might have concerning her qualifications. At this time, Petitioner informed the person taking the call that she planned to move to Florida if she was qualified to take the examination for a dispensing optician license. Petitioner thereafter moved to Florida and is now employed by Sheppard Optical at Delray Beach, Florida where she is earning $200.00 a week. She was making approximately $300.00 a week when she left Connecticut and anticipated a higher income when she commenced practicing under her opticians license in Connecticut. (Testimony of Petitioner) Prior to the consolidation of the various state licensing boards into the Department of Professional Regulation in 1979, the practice of the Board of Opticianry, under the apprentice requirements of Section 484.03, Florida Statutes, (1977) was to permit individuals who had apprenticed in another state, but not in Florida, for the specified time of not less than three years, to register with the Board, and then make application for and take the examination for licensure. This was frequently done by means of telephone calls authorizing the individual to make application. In some cases, letters were sent which contained a similar authorization. Subsequent to Petitioner's telephone call to the Board in May, 1980, the new Executive Director of the Board of Opticianry, Herbert F. Varn, changed this practice to conform to the applicable statute which requires individuals to register as an apprentice with the Board and not admit such individuals to examination until after they had thereafter completed the requisite three year period of apprenticeship. In some isolated cases, the Board had permitted individuals who had previously received a letter authorizing them to take the examination, even though they had not been registered in Florida for the requisite three year period, to take the examination. However, after reorganization, the Board did not permit individuals to take the examination based solely upon any oral assurances received from persons in the prior Executive Director's office. (Testimony of Varn) The order of the Board of Opticianry, dated September 2, 1981, denying Petitioner's application stated that she had not met the statutory requirements for licensure by examination pursuant to Section 484.067(1), Florida Statutes, because she had not completed the requisite two school year course of study in a recognized school of opticianry, had not actively practiced as a licensed optician in another state for more than three years preceding the application, and had not registered as an apprentice with the Department and served not less than a three year apprenticeship under appropriate supervision. The present Executive Director of the Board is of the opinion that there would be no detriment to the public if Petitioner was allowed to sit for the examination based on her prior training and experience, but acknowledges that this is a matter for Board determination. (Testimony of Varn, pleadings)
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 5th day of January, 1996.
The Issue The issues in this case are whether Respondent used fraudulent, false, misleading, or deceptive advertising and whether Respondent willfully submitted a claim to a third-party payor for services not rendered to a patient; and, if so, what is the appropriate sanction.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of optometry pursuant to section 20.43, Florida Statutes, and chapters 456 and 463, Florida Statutes. At all times material to this proceeding, Respondent was a licensed optometrist in the State of Florida, having been issued license number OPC 1738. Respondent is the owner of One Price Optical in Cape Coral, Florida, where he practices optometry and sells eyeglasses. He opened his business in 2000. For the first 13 years of his business, Respondent advertised in an area newspaper, offering a free eye exam for glasses. The advertisement that he published in newspapers until sometime in 2013 is in evidence. At the top of the ad, the words “FREE EYE EXAM” appeared in large, white, all capital letters, against a solid black background. Immediately below, also on the black background in smaller white, all capital letters, was the following: FOR YOU • FOR GLASSES • PATIENTS 7 YEARS & UP Below the prominent white-on-black section, the ad contained information about the business in black print against a white background. The name of the business was the only print as large as the “FREE EYE EXAM” message at the top of the ad. Looking at the ad as a whole, the eyes are drawn to two messages: “FREE EYE EXAM” and “ONE PRICE OPTICAL.” The smaller black print on the white background identified Respondent as the optometrist, provided the address, telephone number, and hours, and listed names of third-party payors, including Medicare, vision plans, and insurance plans. The bottom of the ad contained one more very small black banner with tiny white print, setting forth a disclaimer required by statute and Board rule, regarding a patient’s right to a refund. N.P. saw the newspaper advertisement, and on October 4, 2012, he went to One Price Optical to obtain his free eye exam for glasses. N.P. already had glasses, but wanted to get an updated prescription. N.P. brought the ad with him. N.P. was greeted by staff member Hope Fior who asked what brought him to One Price Optical that day. N.P told her that he wanted the free eye exam. Patients are asked to complete a two-sided patient information form provided to them on a clipboard. Ms. Fior does not recall whether she was the staff person who gave N.P. the clipboard paperwork to fill out, but her initials, “HF,” appear at the top of the first page in the blank for “staff,” suggesting that it was her. Just as Ms. Fior did not specifically recall that she was the “staff” initialing N.P.’s paperwork--after all, it has been nearly seven years since the encounter--N.P. also did not recall filling out paperwork, although he remembers that he spoke with a female staff member (and Ms. Fior was the only female staff member). Nonetheless, N.P. was able to identify his handwriting on the form, such as his name, address, and telephone number on the first page (the front of the two-sided page). At the bottom of the first page, the form instructs Medicare patients that they “MUST READ & SIGN THE OTHER SIDE.” (Pet. Ex. 2, handwritten p. 29, lower left corner). The second page (the other side of the two-sided form) was referred to by Respondent as the “how are you going to pay” page, requiring patients to select one of several options, initial and/or sign the selection, and sign at the bottom of the page. One section is designated for “If You Have Medicare.” This section states that if a patient has Medicare, “We will bill Medicare for your eye exam according to the Medicare Laws [CPT code] 92004: New Patient, Comprehensive [or CPT code] 92014: Previous Patient, comprehensive. Please provide the staff with your: 1) Medicare card; 2) Medicare Advantage Card; 3) Any supplemental card; 4) Any other non-governmental health insurance card.” Below these provisions, the Medicare section concludes with the following: “If you do not have all of your insurance cards today, we will not be able to exam [sic] you today and will reschedule you.” (Pet. Ex. 2, p. 30). N.P.’s completed “how are you going to pay” page has a handwritten “X” in the box selecting the “If You Have Medicare” section, with N.P.’s initials next to the “X” (because he was a Medicare patient, and, therefore, required to complete this section as written). A check mark also appears next to “Medicare Advantage Card” in the portion requiring the patient to provide staff with insurance cards. Above the “If You Have Medicare” section, a separate section is provided for “Free Exam For Glasses,” with the following description: “The free eye exam for glasses is free. You do not have to buy anything at all. The free exam does not come with any prescription. If you wish, you may pay an exam fee and get a prescription for eye Glasses to take with you.” (emphasis added). At the bottom of this section, two options are provided, with spaces for the patient’s signature. One option is: “I would like the free exam with no RX”; the other option is: “I would like the $48 exam and get my RX.” On N.P.’s completed form, the “Free Exam For Glasses” section has no “X” in the selection box, and neither of the two options was signed by N.P. However, there are hand-drawn circles around the $48 exam option and the signature space to select that option, suggesting that this option was called to N.P.’s attention. There were no circles around the “free exam with no RX” option--the only option that was truly “free.” That option would not have met N.P.’s objective in coming into One Price Optical, which was to get an updated eyeglasses prescription. Another section on the second page is called “Vision Plans.” This section provides: “We will follow all the procedures, rules, and regulations according to the terms of your plan. The free exam for glasses above can not [sic] be combined with any part of your vision plan. You may not mix and match different coupons, promotions, store discounts, etc. with your Vision Plan.” On N.P.’s completed form, there is no “X” in the box provided to select this section, no initials by N.P., and no hand-drawn circles to indicate that this provision was called to N.P.’s attention as potentially applicable. N.P. signed the bottom of the “how are you going to pay” page (with only the Medicare/Medicare Advantage section initialed), next to the handwritten date, October 4, 2012. According to Respondent, his staff would have carefully walked N.P. through the examination and payment options when he came in and asked for the advertised free eye exam. This would have included asking Respondent whether he was covered by Medicare, whether he had “Medicare supplement” insurance coverage, and whether he had any other “vision plan” coverage. If so, he would have been asked to produce his insurance cards and the staff would have investigated what type of coverage was available for eye examinations. According to Respondent, N.P. made the voluntary election to undergo a comprehensive eye examination, which would be paid for under his Medicare Advantage insurance plan, instead of the “free eye exam.” Respondent acknowledged that a comprehensive eye examination must be completed on a patient in order to write a prescription for eyeglasses. One required component of a comprehensive eye examination is an internal examination of the eyes, to the back of the eyes (examination of the fundus). See Fla. Admin. Code R. 64B13-3.007. Respondent admitted that the so-called free eye exam for glasses offered by the advertisement was actually only a “screening” or a “consultation” with a patient to determine if the patient might need eyeglasses. Respondent admitted that the “free eye exam” (screening/consultation) would not be sufficient to enable Respondent to write a prescription for glasses. The advertisement does not mention this. What is offered for “free” is called an “eye exam for glasses,” not a screening that would be insufficient for Respondent to write a prescription for glasses. Staff person Hope Fior acknowledged that the advertisement caused confusion, not only for N.P., but for others. She blamed their confusion on the failure to read the fine print that she believed was in the ad, which she described as making clear that the offer of a free eye exam for glasses could not be used in combination with vision plans. That language did not appear in the advertisement, in fine print or otherwise. Respondent’s claim that N.P. made the voluntary election to forego the advertised free eye examination is contrary to the credible evidence. What N.P. wanted was a “free eye exam for glasses,” as advertised. N.P. was not offered a free eye exam that would have allowed him to obtain an updated prescription for his glasses. Respondent performed an eye examination on N.P. However, Respondent did not complete all steps required for a comprehensive eye examination. In particular, as the parties stipulated, Respondent did not perform a fundus examination on N.P. A comprehensive eye examination, including fundus examination, can be done with or without dilation. Examination of the fundus, the interior examination to the back of the eyes, is generally done after dilation drops are administered. The fundus examination can be done by other means if the patient does not want dilation, but generally dilation is preferable. In fact, Respondent testified that he “always” administers dilation drops, unless a particular patient asks him not to, in which case he makes them sign a form declining dilation. Respondent administered dilation drops to N.P. There is no persuasive evidence establishing that N.P. was resistant to receiving dilation drops, but there is also no persuasive evidence that N.P. was offered a choice or told that he could decline dilation. More importantly, there is no persuasive credible evidence that N.P. was informed before the drops were administered that he would be charged $39.00 as a dilation fee.3/ Instead, N.P. credibly testified that he was not told he would have to pay any fee until later. After Respondent put dilation drops in N.P.’s eyes, he directed N.P. to go down the hall to the reception/store area where eyeglasses are displayed for purchase, and was told he could wait there and look at glass frames while the drops took effect in 15 to 20 minutes. While N.P. was in the optical area, staff member Todd Dutton spoke with him about whether he might want to purchase glasses. The conversation about glasses did not progress, however, because Mr. Dutton also told N.P. that there was a $39.00 charge for dilation, and asked him to pay. N.P. got very upset with this new information, because up until that point, he was still under the impression that he was getting a free eye exam, as advertised. When Mr. Dutton did not retreat from the position that N.P. would have to pay $39.00 for the dilation drops he had received, N.P. walked out, rather than returning to the examination room for Respondent to complete the comprehensive examination. He did not ever return. Inexplicably, Respondent said he was not aware until much later on October 4, 2012, that N.P. walked out. Respondent did not come back for N.P., or send a staff person to bring N.P. back to the examination room, after the short period of time needed for the dilation drops to have taken effect. No explanation was provided for this lapse. It was not until an hour or two later, when Respondent was going over the patient paperwork for the day, that he realized that he never retrieved N.P. to complete N.P.’s comprehensive examination by performing the fundus examination. Respondent completed the patient record form as best he could, as the form he had created did not have an option to indicate an incomplete comprehensive examination, nor did his form provide the option of recording that an intermediate examination was done (which would not require a fundus examination, but would not be sufficient for writing a prescription for eyeglasses). Respondent selected the option called “No Dilation” and circled “Yes” to indicate that dilation was declined. Then he attempted to clarify in handwriting that there was no internal examination because the patient left the office. Despite not performing a fundus examination, Respondent produced a prescription for N.P. that he said he prepared after the incomplete examination. N.P. testified that he does not recall whether he asked for a prescription before he left the office, but he is sure that no prescription was offered to him. Todd Dutton confirmed that there was no discussion with N.P. about a prescription. The prescription presumably could not have been finalized and actually issued to N.P. before the comprehensive examination was completed, so whatever Respondent prepared must be viewed, at best, as preliminary. Respondent’s advertisement that offered a “free eye exam . . . for glasses” was misleading and deceptive. A reader would have been led to believe, just as N.P. did believe, that there would be no charge to anyone--the patient or the patient’s insurer--for an eye exam that would be sufficient to allow Respondent to prescribe glasses. N.P. was misled and deceived by the advertisement, as were others who were confused by the ad’s offer of a free eye exam for glasses. Respondent testified that he discontinued the advertisement, after 13 years of publishing it in the newspaper, sometime the next year (2013) when it came up for renewal. He said that he discontinued it, in part, in response to N.P.’s complaint to the Department, but also because he did not believe the ad was worth the cost of publication. Respondent did not say that he discontinued the advertisement out of remorse for falsely advertising free eye exams for glasses. He was steadfast in disputing the charge that his advertisement was in any way false, misleading, or deceptive. After N.P.’s incomplete examination, Respondent proceeded to bill N.P.’s vision insurance plan. He submitted a claim under CPT code 92004 in the amount of $139.00, and a claim under CPT code 92019 in the amount of $39.00. Current Procedural Terminology (CPT) codes are used by optometrists to define the services provided to patients in submitting claims to third-party payors for payment. Each CPT code has a definition set forth in a book maintained and distributed by the American Medical Association. The CPT code book has been officially adopted by the Department of Health and Human Services as the standard medical data code set, which must be used by “covered entities” under the Health Insurance Portability and Accountability Act, for physician services and other health care services, including vision services. See 45 C.F.R. §§ 162.1000 and 162.1002(a)(5)(vi) and (b)(1). CPT codes have uniform objective definitions that do not change based upon the type of practitioner or setting in which they are used. CPT code 92004 is defined as a comprehensive ophthalmological examination, including fundus examination. CPT code 92019 is defined as an ophthalmological examination and evaluation under general anesthesia. Respondent admits that he did not complete the comprehensive eye examination of N.P. The parties stipulated that Respondent did not perform the fundus examination. Respondent stated that by submitting a claim to N.P.’s vision insurance plan using CPT code 92004, he intended to bill the vision plan for performing a dilated fundus examination on N.P. He admits to having willfully submitted a claim to a third- party payor for services not provided to a patient. Respondent contends he should be excused for submitting the claim because the reason Respondent did not perform the dilated fundus examination on N.P. is that N.P. walked out. While that explains why Respondent did not provide the service to N.P., it does not justify Respondent’s claim seeking insurance reimbursement for a service he admittedly did not provide. Respondent testified that he was left in a quandary as to how to handle the billing, as there was no option for billing the vision plan for three-quarters or some other fraction of CPT code 92004. Petitioner’s expert, Dr. Kline, offered a viable alternative that would have solved Respondent’s quandary without submitting a claim for a service that was not provided. Dr. Kline testified that Respondent could have submitted a claim under CPT code 92002, for an intermediate eye examination. CPT code 92002 is appropriate to use by an optometrist who has performed a less extensive examination than a comprehensive examination. In particular, the fundus does not have to be examined in an intermediate exam. While an intermediate eye examination was insufficient to meet N.P.’s objective of securing a legal updated prescription (which requires a comprehensive eye examination), the unrebutted evidence in this record shows that submitting a claim using CPT code 92002 would have been accurate in identifying the service actually provided to N.P. Dr. Kline opined that submitting no claim to N.P.’s third-party payor was also an option that would have solved Respondent’s quandary, and in his opinion, would have been the most reasonable course of action under the circumstances. It would have been what he would have done. In light of Respondent’s advertisement for a “free eye exam,” Dr. Kline’s opinion is credited: the most appropriate option would have been to not submit a claim to N.P.’s third-party payor, thereby providing a “free,” albeit incomplete exam. Respondent defended his claim under CPT code 92004 for a comprehensive eye exam, under the guise of it being acceptable practice to perform a comprehensive eye examination in more than one sitting. According to Respondent, as long as the examination is going to be completed, it is acceptable to bill the third- party payor for the entire examination after only part of it has been done. This may be true when (as Respondent was told in a seminar), the completion of the exam is scheduled for the next day, within the next few days, or perhaps as much as a week later. For example, on occasion a patient might request to not be dilated on the day the examination is initiated and mostly completed, and arrangements are made for the patient to return for the dilation and fundus examination on a day when dilated eyes do not present a problem for the patient. However, that is not what occurred with N.P. N.P. never contacted Respondent to complete the examination, nor did Respondent ever attempt to contact N.P. to schedule his return for the fundus examination. It was obvious that N.P never intended to return. Indeed, Respondent admitted that he would not have attempted to contact N.P. because of N.P.’s anger when he left One Price Optical. Respondent’s justification for billing the vision insurance plan under the CPT code for a comprehensive examination could only be accepted if, at the time Respondent submitted the bill, arrangements had already been set for the examination to be completed, either because N.P. had scheduled a return visit before leaving, or because Respondent had called the patient and succeeded, before submitting the bill, in scheduling N.P.’s return visit to complete the exam. Under the circumstances here, at the time Respondent submitted the claim to N.P.’s vision plan, he knew that he had not completed a comprehensive eye examination of N.P., and he knew that no arrangements had been made to complete the examination. A fundus examination is a service that is a required component of CPT code 92004. Respondent willfully submitted a claim to a third-party payor for a service that was admittedly not provided to N.P. Respondent also admitted that he did not provide an eye examination to N.P. while under general anesthesia, which is the service defined by CPT code 92019, but he submitted a claim to the third-party payor using that CPT code. Respondent contended that he intended to use that CPT code to submit a claim for dilation charges. Respondent attempted to explain that some vision plans do not strictly follow the CPT code definitions, and some of them use CPT code 92019 to mean dilation. He testified that he just does his best using their claim forms and the descriptions they use for the CPT codes. Respondent did offer evidence that a different vision plan, not the one administering N.P.’s Medicare Advantage plan’s vision benefits, described CPT code 92019 as “dilation” in its online claim form. If a claim submitted to that other vision plan were at issue here, Respondent’s explanation might be accepted as evidence that Respondent did not willfully submit a claim for a service not provided. However, the evidence does not support Respondent’s explanation in this instance. In the “Explanation of Payment” printed from N.P.’s vision insurance plan’s website, CPT code 92019 was specifically described (in the available space) as “ophthalmological examination and evaluation under general an” and not as dilation. (Pet. Ex. 2, p.35) (emphasis added). Respondent said that he does all of the billing and coding for One Price Optical, and that he has tried to find out what is required. His claim that so-called “vision plans” are not considered insurance and do not strictly follow the CPT code definitions rings hollow, at least as applied to the facts here, where everything in N.P.’s patient records speaks to Medicare Advantage health care insurance. The “how are you going to pay” form completed by N.P. directed him, as a Medicare patient with Medicare Advantage insurance, to authorize billing under that coverage, which Respondent’s form assured would be done in compliance with Medicare laws and rules. The claim processing paperwork calls N.P.’s plan “Universal Health Care – Medicare,” and the plan’s explanation of denied payment for the claim under CPT code 92019 used the code definition from the CPT code book.4/ Respondent testified that he always very carefully checks to see how a particular vision plan uses and defines the CPT codes, and that he submits his claims using the CPT codes as defined by the particular plan. He therefore admitted that he willfully submitted a claim to N.P.’s vision plan under CPT code 92019, defined as “ophthalmological examination and evaluation under general an[esthesia].” The undersigned is not persuaded by Respondent’s assertion that in billing under CPT Code 92019, he should be found to have not willfully submitted a claim for a service not rendered because he knew that the claim would not be paid. The fact remains that Respondent knowingly, intentionally, and willfully submitted a claim to N.P.’s vision insurance plan, coded under CPT code 92019, claiming to have performed an eye exam under general anesthesia on N.P. on October 4, 2012, as explained in the Explanation of Payment. (Pet. Ex. 2, p. 35). Whether Respondent intended to get paid or expected to get paid is not germane to the question of whether he willfully submitted the claim for a service not provided.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Optometry, issue a final order finding Respondent guilty of violating section 463.016(1)(f) and (1)(j), Florida Statutes (2012); and, as discipline, imposing a fine of $6,000.00 and issuing a 12-month probationary period on such terms and conditions as the Board deems appropriate. DONE AND ENTERED this 12th day of June, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2019.
The Issue The issue is whether Respondent's opticianry license should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Max A. Vinson is currently a licensed optician, holding license No. DO 601. On December 24, 1986, the Board of Opticianry entered a Final Order in DPR Case No. 0060708 and therein assessed a fine of $500.00 against Vinson. The fine was to have been paid within thirty days of the Final Order. Vinson never paid the fine. On October 17, 1989, the Board of Opticianry again entered a Final Order in Case No. 0106315. This Final Order was based on the failure to pay the fine from the first action. Another fine of $1,000.00 was assessed and Vinson's license was suspended until the fines were paid. Vinson never paid this fine. Vinson is charged with violating Section 484.014(1)(i), Florida Statutes, based on his failure to obey these two lawful orders of the Board of Opticianry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Opticianry enter a Final Order and therein revoke license No. DO 601 issued to Max A. Vinson. Vinson may not reapply for a license until all fines have been paid. DONE and ENTERED this 9th day of April, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 9th day of April, 1991. COPIES FURNISHED: E. Renee Alsobrook, Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Max A. Vinson 12512 Caron Drive Jacksonville, FL 32258 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 LouElla Cook Executive Director Board of Opticianry 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner is an applicant for licensure as an optometrist in the State of Florida. He received a Bachelor's Degree in Biology from Youngstown State University in 1985. In 1989, Dr. Martuccio graduated from the Ohio State University College of Optometry where he had followed a four-year course of study prior to receiving his optometry degree. Dr. Martuccio has been practicing optometry in Ohio since 1989. When Dr. Martuccio took the 1989 optometry examination for licensure in Florida, he received a passing grade on the written portion of the examination but not on the clinical portion. That passing grade on the written examination remained valid when he took the 1990 optometry exam. Therefore, in 1990 Dr. Martuccio only had to repeat the clinical part of the examination. Dr. Martuccio received lower than a passing grade on that clinical examination. For the clinical examination, an applicant is required to bring his or her own "patient." The clinical examination is conducted by having a candidate perform procedures requested by the examiners on the "patient." The clinical portion of the optometry examination is divided into two sections. On Section 1 an applicant can receive a possible score of 48 points. Dr. Martuccio received a perfect score of 48 points on that Section. The total passing grade for Section 1 and Section 2 is 80 points. Therefore, Dr. Martuccio needed to receive a total of 32 points out of a possible 52 points on Section 2. However, the grades given to Dr. Martuccio on Section 2 totaled only 27.5. His total score for the clinical portion of the 1990 optometry exam was, therefore, 75.5. Section 2 of the clinical examination is divided into 16 different procedures. Each of the 16 procedures has a maximum score that varies depending on the weight given to the procedure. The grading is done by two examiners who are practicing optometrists. If both examiners agree, the candidate either receives no credit or full credit depending on whether they considered him to have properly performed the procedure requested. If they disagree, the candidate is given one-half of the possible points on that procedure. Dr. Martuccio has challenged the scores he received on four of the procedures in Section 2 of the September, 1990, clinical exam. Those four procedures, in the order in which they were performed, are: BIO 2 (Binocular Indirect Opthalmoscope), Anterior Biomicro 4 (Anterior Biomicroscopy), Anterior Biomicro 9 (Anterior Biomicroscopy), and Gonio 15 (Gonioscopy). In Binocular Indirect Opthalmoscope 2 Dr. Martuccio was required to show a clear view of the fundus (back of the eye). The back of the eye is visible through the dilated eye by means of a binocular headpiece worn by the candidate and a hand-held lens, which are focused together. This procedure is very simple to perform. It is a procedure which he has been doing since "day one in optometry school," and which Petitioner performs daily in his private practice. One of the graders who evaluated Dr. Martuccio's performance on BIO 2 indicated that he performed the procedure properly, but the other grader indicated that his demonstration was "out of focus". Dr. Martuccio's sight is perfect in both eyes, and he is capable of detecting whether an image is out of focus. Since the "patient" did not move during the examination process, then one of the graders made a mistake in his evaluation. Dr. Martuccio correctly performed BIO 2, and he should receive 2.5 additional points for that procedure. The next procedure in dispute is Anterior Biomicroscopy 4, which was worth a total of four points. The two graders disagreed as to whether Dr. Martuccio properly performed the procedure, and he, therefore, received only two points. This procedure required him to display the corneal endothelium. To do that, Dr. Martuccio used a slit lamp which is an instrument that projects a beam of light into the patient's eye. One grader gave Dr. Martuccio full credit for this procedure. The other gave no credit, commenting that Dr. Martuccio used an optic section rather than a parallelpiped. There is an elementary and fundamental difference between a parallelpiped and an optic section of light projected from a slit lamp. The slit lamp has a separate adjustment that determines the width of this beam of light. Since Dr. Martuccio did not change the width of the beam of light after he began the procedure, that width did not change between the time the first examiner and the second examiner evaluated his work. One of the examiners was mistaken in grading Dr. Martuccio's performance, and Dr. Martuccio was scored incorrectly on this procedure. For Anterior Biomicroscopy 9, Dr. Martuccio was instructed to focus on the anterior vitreous, part of the gel-like substance in the middle of the eye. In some patients vitreous strands are present and may be visible during the examination. However, in healthy patients vitreous strands are not present and the anterior vitreous is extremely clear. In those situations, the beam of light from the slit lamp will have nothing from which to reflect. Dr. Martuccio utilized the standard method of examining the anterior vitreous by focusing the instrument on the back of the lens, which is immediately adjacent to the beginning of the anterior vitreous. The focus is then projected inward, into the eye, which will automatically set the focus within the anterior vitreous. Dr. Martuccio's patient had no vitreous strands, protein particles, or other objects in his anterior vitreous. Thus, there was an absence of particles which would reflect light back to the observer from the subject. The examiner who gave Dr. Martuccio no points for this procedure noted, as his explanation, that vitreous strands were not visible. However, as explained by Dr. Martuccio and corroborated by the Department's expert witness, that was an inappropriate comment if the patient had no vitreous strands. Since the examiner's comments were inappropriate, indicating he used an erroneous criterion, Dr. Martuccio was given an incorrect score on this procedure. Instead of two points, he should have received the full four points. The last procedure in issue is Gonio 15. This was worth a total of four points for which Dr. Martuccio received only two. This process requires a gonioscope to be placed on the patient's eye, in much the same fashion as a contact lens is placed on the eye. Once the gonioscope is placed, a mirror inside this instrument allows the optometrist to examine structures of the eye at a sideways angle and see portions of the eye which are not visible by looking straight into the eye. Dr. Martuccio installed the gonioscope properly and adjusted it so that the structures in question were clearly visible. He received full credit from one of the examiners but no credit from the other examiner whose comment was that the structures were "out of focus". It is unreasonable to believe that Dr. Martuccio did not keep the structures of the eye in question in focus during this examination. He was able to perform all of the procedures easily, without any delays, and had no problem doing all the procedures in the allotted time, which was relatively brief. Dr. Martuccio's "patient" was an ideal subject who did not move in any fashion so as to cause the focus to change for any of these procedures. Further, Dr. Martuccio is knowledgeable about structures of the eye and the use of all of the instruments involved in this case. He has had extensive training and experience in these areas not only through his formal education in optometry, but also due to the fact that Dr. Martuccio has been in private practice for over two years, using these instruments on a daily basis. Considering that Dr. Martuccio has perfect vision in both eyes, it is difficult to conceive that he could not keep his instruments in focus for the few seconds it took for both examiners to review his work. The Department's expert witness, Dr. Chrycy, characterized the procedures that are called for in Section 2 of the clinical examination as being fundamental and relatively simple. Candidates who cannot perform these functions are clearly unqualified to be an optometrist. Dr. Chrycy expects all graduates of optometric school to be able to keep images in focus. Dr. Martuccio has been licensed in the State of Ohio for over two years and has recently been licensed in the state of Pennsylvania. He passed the National Board examination which is recognized in at least 10 states for licensure. Both the National Board and the Ohio licensure examinations have clinical components similar to Florida's. Dr. Martuccio passed both of those clinical examinations on his first attempt. When considered in light of Dr. Chrycy's characterization that the examination tests fundamental, basic ability and is not difficult, one cannot accept the proposition that Dr. Martuccio was fairly graded in this examination process. The general passing rates that candidates taking the Florida optometry exam have experienced since 1986 are quite low. In 1987, only 51% of those taking the clinical portion of the examination passed; in 1988, 59%; in 1989, 57%, and in 1990, 53%. The overall pass rate for the entire exam is even lower: in 1987, only 30%; in 1988, only 42%; in 1989, only 45%, and in 1990, only 34%. If taken literally, these scores mean that the typical applicant for licensure as an optometrist in Florida is incompetent at using the basic, everyday instruments employed by optometrists and by optometric technicians and is incapable of identifying the different parts of the eye. Such a conclusion is without credibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered awarding to Petitioner 8.5 additional points on the clinical portion and finding that Petitioner achieved a passing score on the September, 1990, optometry examination. RECOMMENDED this 13th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 13th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2354 Respondent's proposed findings of fact numbered 1-3 have been adopted in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 6 have been rejected as being subordinate to the issues under consideration in this cause. Respondent's proposed findings of fact numbered 5 and 7 have been rejected as being irrelevant to the issues under determination herein. Respondent's proposed finding of fact numbered 8 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. COPIES FURNISHED: Diane Orcutt, Executive Director Department of Professional Regulation/Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth G. Oertel, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Tallahassee, Florida 32301 Vytas J. Urba, Esquire Assistant General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether alleged statements attributed to the Board of Optometry were made by the Board, and if so, whether the statements constitute unpromulgated rules prohibited by Section 120.54(1)(a), Florida Statutes, (Supp. 1996).
Findings Of Fact The parties stipulated as a matter of fact that: The FOA is a not-for-profit Florida corporation whose membership is comprised of optometrists licensed under Chapter 463, Florida Statutes, to practice optometry in Florida. All FOA members are subject to and regulated by the Board of Optometry and its rules. The FOA has approximately 1,022 members. The Board of Optometry is the agency responsible for regulating the optometric practice of all FOA members. Board rules and agency statements of general applicability regulate the optometric practice of all FOA members. Individual members of the FOA, being subject to and regulated by the rules and policy of the Board of optometry, are persons whose substantial interests will be affected by the alleged agency statements and are thus substantially affected persons within the meaning of Section 120.56(1)(e), Florida Statutes (Supp. 1966). As all members of the FOA are subject to and regulated by Board rules and statements of general applicability, a substantial number of the FOA’s members would be substantially affected by the alleged statements. The objective of the FOA is to promote and protect the interests of the general public and licensed optometrists in ensuring the availability of high quality eye care at an affordable price. The FOA represents its members through the provision of education and training, and by participation in administrative proceedings, legislative activities, and court litigation. Petitioner, Brian Lloyd Weber, O.D., is an optometrist licensed and practicing in Florida. Petitioner, 29/49 Optical Inc., (29/49), is a corporation which operates optical establishments in Florida. The Board of Optometry is the state agency in Florida which licenses optometrists and regulates the practice of optometry in this state. On January 29, 1992, the Probable Cause Panel of the Board of Optometry determined there was probable cause to discipline the license of Dr. Weber because of an alleged violation of Section 463.014(1)(b), Florida Statutes, involving the corporate practice of optometry. Thereafter, on February 2, 1992, an Administrative Complaint was filed with the Board which alleged that Dr. Weber had violated the cited statute by engaging in the practice of optometry with a corporation not composed of other health care providers; by entering into a corporate arrangement which permitted an unlicensed person to practice optometry through Dr. Weber, in violation of Rule 21Q-3.008, (now Rule 59V-3.008, Florida Administrative Code); and by holding himself out to the public as available to render professional services in a manner which implies he is professionally associated with an entity which is not a licensed practitioner, also in violation of the Rule. The investigation conducted by the then Department of Professional Regulation, which led up to the action of the panel and the filing of the Administrative Complaint indicated that Dr. Weber owned 250 shares of stock in 29/49, along with an optician, Anthony Record, not licensed to provide optometry services, who also owns stock in the corporation. Allegedly, the corporation operated at five different locations, at one or more of which eye examinations were performed. It was also alleged that 29/49 had publicly advertised itself as an entity which provided complete eye examinations, and that Dr. Weber performed the eye examinations described in the advertisements. In fact, Dr. Weber is a director and officer of 29/49. He holds a 75% ownership share in the corporation. Both Dr. Weber and Mr. Record control the corporation and share the duties and profits of the operation. The firm provides optitianry services, as defined in Sections 484.002(3) and (7), Florida Statutes. Dr. Weber asserts that the operations of 29/49 are separate from the operations of his optometric practice, and claims that the Board’s direction to him to change the corporate structure of 29/49 so as to dissolve his partnership with a lay person is a continuation of what he claims is a long-standing policy of prohibiting the joint ownership of an optitianry between and optometrist and a lay person. Before a hearing was held on the Administrative Complaint, Dr. Weber and counsel for the Board entered into a stipulation which, if accepted by the Board, would have resolved the pending disciplinary action. The stipulation was presented to the Board at its July 8, 1993 meeting, at which time the Board voted to reject it and to propose a counter-stipulation. At that meeting, the Board did not enunciate any of the alleged agency statements at issue here nor did it take a position as to what Dr. Weber must do to rectify the practice situation to its satisfaction. Nonetheless, by Order dated September 9, 1993, the Board formally rejected the proposed stipulation and proposed its own stipulation. On September 12, 1996, Dr. Weber and the Agency’s counsel presented a second stipulation to the Board for settlement of the disciplinary matter, but again the Board voted to reject the stipulation and to offer its own second counter- stipulation. This counter-proposal called for Dr. Weber to change his corporate structure so that he no longer violated the statutory prohibition against practicing optometry with non- licensed individuals, and that he no longer practice with a lay person. This second counter-proposal by the Board did not enunciate any of the alleged agency statements at issue herein. This second counter-proposal was promulgated in an Order of the Board issued on October 15, 1996. Sections 463.014(1)(a)&(b), Florida Statutes, provide: No corporation, lay body, organization, or individual other than a licensed practitioner shall engage in the practice of optometry through the means of engaging the services, upon a salary, commission, or other means or inducement, of any person licensed to practice optometry in this state. Nothing in this section shall be deemed to prohibit the association of a licensed practitioner with a multidisciplinary group of licensed health care professionals, the primary objective of which is the diagnosis and treatment of the human body. No licensed practitioner shall engage in the practice of optometry with any corporation, organization, group or lay individual. This provision shall not prohibit licensed practitioners from employing, or from forming partnership or professional associations with, licensed practitioners licensed in this state or with other licensed health care professionals, the primary objective of whom is the diagnosis and treatment of the human body. Consistent therewith, the Board of Optometry has promulgated Rule 59V-3.008, Florida Administrative Code, which implements the provisions of the statute. Rule 59V-3.008, Florida Administrative Code, restates the intent of the legislature regarding the need for licensure of practitioners of optometry, defines a “licensed practitioner”, and thereafter outlines with particularity those actions which may and those which may not be carried on by licensed optometrists in Florida. The rule is quite clear in its definitions and leaves little room for misunderstanding regarding what constitutes the practice of optometry and optometric services; those individuals who must be licensed; what professional activities a licensed practitioner may perform and what activities constitute a violation of Section 463.014,Florida Statutes. Of specific relevance to the issues herein are: (15)(b) Entering into any agreement (whether written or oral) which allows, permits or facilitates an entity which itself is not a licensed practitioner to practice optometry, to offer optometric services to the public, or to control through any means whatever any aspect of the practice of optometry. Allowing, permitting, encouraging, forbearing, or condoning any advertisement including those placed in a newspaper, magazine, brochure, flier, telephone directory, or on television or radio, which implies or suggests that the licensed practitioner is professionally associated or affiliated with an entity which itself is not a licensed practitioner. Occupying or otherwise using professional office space in any manner which does not clearly and sufficiently indicate to the public that his/her practice of optometry is independent of and not associated with an entity which itself is not a licensed practitioner. , (I), and(j), [which all refer with specificity to some action which relates to the practice of optometry by a licensed practitioner with an entity which itself is not a licensed licensed practitioner.] This rule has been challenged in the courts and determined to be a valid exercise of delegated legislative authority. Petitioner claims that pronouncements by the Board of Optometry since the passage of the relevant statute and the promulgation of the relevant rule, including a Declaratory Statement by the Board in response to a Petition therefore by Phillip R. Sidran, O.D. in 1991, found at 13 FALR 4804; and in discussion of members at various meetings of the Board’s Probable Cause Panel; all indicate that the Board has formulated a policy regarding the instant issue which is neither a statute nor a properly promulgated rule. In 1991, Dr. Sidran, a licensed optometrist, sought a declaratory statement from the Board regarding the propriety of having a licensed optician share the revenues and responsibilities deriving from the optical portion of his practice. In its Declaratory Statement, issued on October 9, 1991, the Board specifically referred to and quoted the controlling portions of the statute and the rule which it then interpreted as indicating such an arrangement was prohibited. At no time did the Board promulgate new guidelines or expand the strictures imposed by the existing statute and rule. It applied an existing statute and rule to the factual situation posed by Dr. Sidran and concluded that under the facts of that case, the existing statute and rule prohibited the proposed relationship. The subsequent discussion of that opinion at the meeting of the Board’s Probable Cause Panel, convened on January 29, 1992, to consider proposed disciplinary action against Dr. Weber for the situation described here with 20/49, again interpreted existing statute and rule but did not formulate policy. Petitioner further refers to two additional meetings of the Board of Optometry at its meetings on July 8, 1993 and September 12, 1996, at both of which the members present discussed the situation regarding Dr. Weber’s business relationship in 29/49. He claims that in both situations, the Board members made policy statements which should have been formalized through the promulgation of a rule amendment or supplement. Review of the transcripts of those meeting does not support Dr. Weber’s position, however. It is clear that in each case the Board members examined the facts presented to them, applied the existing statutory and rule provisions to those facts, and concluded that the Petitioner’s actions constituted a violation of existing law. The Board’s position vis a vis Dr. Weber’s business arrangement was made a part of the Board’s counter-proposal to the stipulation of settlement initially agreed to by Dr. Weber and the Department’s counsel. In it’s counter-stipulation, which came out of the September 12, 1996 Board meeting, the Board required Dr. Weber to “... change his corporate structure so he is no longer in violation of Section 463.014(1)(b), Florida Statues, and that [his] practice be changed so that he is no longer practicing with a lay person.”
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent is, and was at all times material to these proceedings, a licensed optometrist in the state of Florida, having been issued license number OP 000773. Respondent has been a practicing optometrist in the state of Florida for 24 years having graduated from the Southern College of Optometry in Memphis, Tennessee in 1964. Respondent has maintained his practice in Orange Park, Florida since 1964. Respondent has been treating patients with orthokeratology for approximately 20 years. Count I: Treatment of Keith Roberson with Orthokeratology and Follow-Up Care Therefor. On or about October 23, 1979, Alan Keith Roberson and his mother visited Respondent for the first time concerning a program of orthokeratology. During that visit, Respondent gave Roberson literature regarding orthokeratology. Roberson expressed a strong desire to obtain a driver's license. Roberson was 21 years of age at the time. Respondent told Roberson that orthokeratology would possibly enhance his vision and possibly enable him to achieve those things that he desired, more specifically, a driver's license. Orthokeratology has been defined as the programmed application of contact lenses to reduce or eliminate refractive anomalies and to sphericalize the cornea in order to reduce myopia, contain myopia, and to bring back a more functional vision. Orthokeratology has also been used for the reduction of astigmatism. The American Academy of Optometry does not recognize diplomacy for orthokeratology. Neither the American Optometric Association nor the Florida Optometric Association recognizes orthokeratology as a separate section. No special license or certification is required to practice orthokeratology in Florida. The initial refraction of Roberson by Respondent showed that the patient's eyes were a minus 21 diopter. Roberson was extremely myopic, which means he was extremely nearsighted. Roberson also had a high degree of nystagmus (constant movement of the eyes from side to side) and very large eyes. Respondent treated Roberson with a modified orthokeratology program in an attempt to improve Roberson's vision so that Roberson could obtain a driver's license. Through this modified orthokeratology program, Respondent hoped to reduce and contain Roberson's myopia, to reduce Roberson's nystagmus, and to improve Roberson's vision. Roberson's aided vision improved from the initial visit of 20/200 in each eye to that of 20/70 in the right eye and 20/100 in the left eye. Although Petitioner contends that Roberson's improved vision was not attributable to the orthokeratology treatment, there is insufficient evidence to show otherwise. From 1979 through September 1982, Roberson's vision did not slip and his myopia did not get any worse, and indeed, his vision had improved. During that period, Roberson was seen approximately eight times by Respondent, of which six visits were for orthokeratology and contact lens treatment. On March 17, 1981, Roberson was issued an operator's license with corrective lens restrictions by the State of Florida, Department of Highway Safety and Motor Vehicles. Prior to the issuance of this driver's license, Roberson had obtained a form entitled "Report of Eye Examination with a Certification of Eye Specialist" which was completed and apparently used to obtain Roberson's driver's license. There is insufficient evidence to show that Respondent completed and signed that portion of the form entitled "Certification of Eye Specialist". Although Roberson testified that his driver's license was issued the day after this form was dated on October 4, 1980, it is clear from the record that Roberson's driver's license was not issued until March 17, 1981. Respondent did not make any promises to Roberson that treatment with modified orthokeratology would improve his vision, unaided by glasses or contact lenses, so that Roberson could pass the vision requirement of the Florida Driver's Test unaided by glasses or contact lens, notwithstanding that the ultimate goal of orthokeratology may be to allow the patient to go for periods of time without refractive devices and function normally. Although Roberson's condition at the time of his first visit may have contraindicated a "strict" orthokeratology treatment, there were indications that the "modified" orthokeratology treatment suggested and used by the Respondent, after full explanation to Roberson, would produce the results that Roberson was seeking. In fact, it did improve Roberson's vision aided by refractive device sufficiently to allow Roberson to obtain a driver's license. Respondent did not promise Roberson that the "modified" orthokeratology treatment would enhance his vision, unaided by refractive devices, to the point of allowing Roberson to pass the driver's license test or that Roberson would be able to function normally for any period of time without refractive devices to aid his vision. There is insufficient evidence to show that Respondent could have obtained the same results using a less expensive treatment such as gas permeable contact lens. There was insufficient evidence that Respondent's follow-up care of Roberson was inadequate, particularly considering the use of "modified" orthokeratology treatment. There was insufficient evidence to show that Respondent's treatment of Roberson with "modified" orthokeratology fell below the standard of care in the community or that such treatment was inappropriate under the facts and circumstances of this case. Count II: Whether Respondent charged Patient Roberson an Excessive Fee for Orthokeratology. Because Roberson was the highest myopic (-21 diopter) patient ever seen by Respondent and initially unsure whether orthokeratology would work on this patient, Respondent quoted a fee of $1,000.00 with the understanding that if treatment was not successful then the fee would only be $500.00. The parties stipulated that Respondent ultimately received $1,000.00 in payment from Roberson for orthokeratology. Dr. Carter's normal fee in 1979 for orthokeratology was $2,000.00. There is insufficient evidence to show that Respondent prescribed orthokeratology treatment for Roberson to facilitate charging him a higher fee. Count III: Whether Respondent Failed to Properly Treat Patient Roberson and Follow Patient Roberson's Condition. At approximately 7:30 p.m., on September 7, 1982, Roberson visited Respondent's office after accidentally being "poked" in the left eye four days earlier causing a bright blue flash of light resulting in a curtain over Roberson's eye and poor sight vision in the nasal field. Roberson complained about fluctuating vision, seeing light flashes, a veil-like curtain coming over his left eye, watering of the left eye and slipping of contact lens. Respondent spent approximately 20-25 minutes examining Roberson. After examining Roberson's visual acuities, Respondent examined Roberson with a slitlamp or biomicroscope and attempted an optomoscopy in an attempt to view Roberson's retina. Because of Roberson's high degree of myopia and nystagmus and because Respondent did not dilate eyes during this time period, Respondent was unable to determine for certain that Roberson had a detached retina. However, Respondent was aware of the high possibility that Roberson had a detached retina. Although Respondent may have advised Roberson to visit his previous ophthalmologist the next day, Respondent did not call an ophthalmologist on the evening of September 7, 1982 to facilitate referral, nor did Respondent follow- up by calling a ophthalmologist at any other time. After Roberson left Respondent's office he went home. The next day Roberson went to work and while at work he continued to experience the veil like curtain over his eye and a dark spot. Roberson then went home and played drums for about 3 1/2 to 4 hours. When he finished playing the drums he took a shower. While shaking his hair dry he lost the vision in his left eye. Roberson, on the advice of his mother, then went to the University Hospital where he was immobilized and diagnosed as having a probable retinal detachment, and thereafter transported to Shands Hospital, where he was diagnosed as having a giant retinal tear. While at Shands Hospital, Roberson underwent three major operations on his eye and 45 minutes of laser surgery. He was informed that he would probably always be blind in his left eye. Because of Roberson's high degree of myopia, statistically he was at a very high risk of experiencing a detached retina with or without injury. Respondent was aware that patient's eyes were sensitive to a retinal detachment as early as 1979. In 1979, Respondent went to great lengths to inform Respondent that if he ever had the symptoms of a detached retina he should go directly to an ophthalmologist. The classic symptoms of a detached retina are flashes of light with what appears to be a veil or curtain floating over the eye. Roberson experienced the classic symptoms of a retinal detachment and communicated them to Respondent on the evening of September 7, 1982. A detached retina usually occurs secondarily to a retinal tear. A detached retina becomes an ocular emergency once detected or when it should have been detected. The circumstances presented in this case, inter alia, the history of the patient's eyes; a high degree of myopia; difficulty Respondent had with viewing patient's eyes and the symptoms complained of made the situation an ocular emergency. It was of paramount importance to get the patient to an ophthalmic specialist. The failure to promptly refer a patient who has a possible detached retina to the appropriate specialist is a grave departure from the prevailing standard of care for reasonable and prudent optometrists in Respondent's community under similar circumstances. The longer the blood supply is cut off from the retina the less chance there is that the retina will continue to function. The fact that 4 days had elapsed between the time Roberson had been struck in the eye on September 3, 1982, and the time he visited Respondent on September 7, 1982, makes referral that much more important. Merely telling Roberson to see an ophthalmologist the next day is not enough. Respondent should have called the retinal specialist and made the referral. The appropriate referral protocol and standard of care under the circumstances presented in this case would have been for Respondent to call the ophthalmologist himself that evening and, if the ophthalmologist was not in the office, it would have been appropriate to leave a message with the doctor's service explaining the emergency nature of the circumstances. Count IV: Whether Patient Roberson's Records were Altered or Made After the Fact by Respondent. When Roberson first visited Respondent's office in 1979, Respondent recorded Roberson's case history on a 5 x 8 card which was kept with Roberson's patient jacket. The results of Respondent's examination and testing of patients were records on a letter size document. In 1984, after receiving and responding to numerous inquiries regarding Roberson, Respondent transferred information from the 5 x 8 card onto the larger patient record so that all of the information would be contained on one form. The 5 x 8 card was then returned to the patient jacket. Respondent no longer has the patient jacket as all of his original records were subpoenaed from him during the civil litigation. While Dr. Carter candidly admits to transferring part of the patient record from one document onto another document, there was no testimony or evidence presented that Dr. Carter altered or changed any of the patient records or added any information thereto. Count V: Whether Respondent has Engaged in Gross or Repeated Malpractice in the Practice of Optometry Regarding his Treatment and Examination of Keith Roberson. The Respondent was disciplined by the Board of Optometry in its Final Order dated July 17, 1981 in Department of Professional Regulation v. R.T. Carter, O.D., Case No. 81-403, wherein Respondent was assessed an administrative fine of $5,000.00, ordered to make restitution in the total amount of $1,471.00, placed on probation for 18 months and had restrictions placed on his advertising. In General Although the record reveals that Petitioner has not always timely complied with time limits set out in Section 455.225(2) and (3), Florida Statutes, there has been no showing by the Respondent that he was prejudiced by the delays.
Recommendation Based upon 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 Board enter a Final Order finding Respondent guilty of Count III and Count V, in regard to Count III of the Amended Administrative Complaint, and suspending his license to practice optometry in the state of Florida for a period of one year followed by one (1) year of supervised probation with conditions the Board may consider appropriate, and imposing an administrative fine of $5,000.00. It is further RECOMMENDED that Count I, Count II, Count IV and Count V as it relates to Counts I, II and IV be dismissed. RESPECTFULLY SUBMITTED and ENTERED this 8th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 8th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2032 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. Specific Rulings in Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, except date which was October 23, 1979. Adopted in Findings of Fact 4. Adopted in substance' in Finding of Fact 5, except last sentence which is rejected as not being supported by the substantial competent evidence in the record. 5.-6. Adopted in Findings of Fact 6 and 7, respectively. Subordinate to facts actually found in this Recommended Order. The first sentence adopted in Findings of Fact 10. The balance of this findings of rejected as not being supported by substantial competent evidence in the record. 9.-12. Subordinate to facts actually found in the Recommended Order. Adopted in Finding of Fact 20. Rejected as not being supported by substantial competent evidence in the record. 15.-22. Adopted in Findings of Fact 23,24,25,27,28,29,30 and 31, respectively. The first sentence is only a restatement of Respondent's testimony rather than a finding of fact. The balance of this finding is subordinate to the facts actually found in this Recommended Order. Adopted in Findings of Fact 26 and 35. 25.-28. Adopted in Findings of Fact 32, 33, 34 and 40. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-13. Adopted in Findings of Fact 1, 2, 3, 7, 3, 2, 5, 8, 9, 10, 11, 12 and 16, respectively. Adopted in Findings of Fact 14, 15 and 16. Adopted in Findings of Fact 17 and 18. -20. Are not findings of fact, but statements as to the weight given certain evidence. Adopted in Findings of Fact 17 and 18. Covered in Background. 23.-26. Adopted in Findings of Fact 19, 19, 20 and 21, respectively. 27.-28. Not a finding of fact, but rather a restatement of testimony. 29.-35. Adopted in Findings of Fact 23, 23, 24, 25, 25, 25 and 25, respectively. Adopted in Findings of Fact 25 and 26, but modified. The first sentence is subordinate to facts actually found in this Recommended Order. The balance is adopted in Finding of Fact 27. 39.-41. Adopted in Finding of Fact 28. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 28. Is a restatement of testimony rather than a finding of fact but, if stated as a finding of fact would reject as subordinate to facts actually found in this Recommended Order. Rejected as being argument rather than a finding of fact. Covered in Background. Rejected as not being material or relevant. 48.-51. Adopted in Findings of Fact 36, 37, 38 and 39. Rejected as argument not a finding of fact. The first, third and fifth sentences are rejected as not being supported by substantial competent evidence in the record. The balance of this finding is subordinate to facts actually found in this Recommended Order. 54.-67. Rejected as not being material or relevant since Respondent produced insufficient evidence to show that he was prejudiced by these acts. 68. Rejected as not supported by substantial competent evidence in the record. 69.-70. Rejected as not being material or relevant. 71. Rejected as not being supported by substantial competent evidence in the record. COPIES FURNISHED: Robert D. Newell, Jr., Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Gary J. Anton, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Respondent, Mark N. Dobin (Dobin), was at all times material hereto licensed to practice optometry in the State of Florida, and held license number OP 0001202. Inadequate Eye Examinations On November 5, 1985, Alison Lichtenstein, an investigator employed by the Department of Professional Regulation (DPR), entered Dobin's offices in Margate, Florida. Using the assumed name of Alison Smith, Ms. Lichtenstein, who was wearing glasses at the time, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Lichtenstein failed to include the following minimum proceduresrequired by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire whether Lichtenstein was taking any medication; (b) an external examination; (c) a pupillary examination; (d) visual field testing; and (e) a biomicroscopy. On November 5, 1985, Mary Pfab, a licensed optometrist in the State of Florida, entered Dobin's offices in Margate, Florida. Using the assumed name of Mary Parker, Ms. Pfab, who was wearing contact lenses, requested that Dobin perform a routine eye examination, with the exception of tonometry. Dobin undertook the requested examination, and was paid his fee of $25.00. The visual analysis performed by Dobin on Ms. Pfab failed to include the following minimum procedures required by Rule 21Q-3.007, Florida Administrative Code: (a) an adequate patient history, since he failed to inquire of Pfab's personal medical history, her medications, her family medical history, or her family ocular history; (b) a pupillary examination; and (c) visual field testing. An optometrist's failure to perform the minimum procedures required by Rule 21Q-3.007, Florida Administrative Code, can have a profound impact on the results of his examination. Pertinent to this case, the procedures omitted by Dobin were of import because: Many medications mask the symptoms of a number of eye diseases. A failure to ascertain what medications a patient is taking could, therefore, result in the optometrist missing or not checking for certain diseases. A personal medical history is likewise important to an informed examination. Pre-existing injuries and diseases can have a profound impact on an optometrist's findings, and the cause of that finding is important too the ultimate diagnosis and treatment of the patient. The patient's family medical and ocular history is also important to an informed examination. For example, a person with a family history of diabetes, cataracts or glaucoma is more likely to have such disease than one without such family history. Consequently, if alerted by such information, the optometrist could diagnose the presence of such disease and prescribe treatment at a much earlier stage of its development than might ordinarily be the case. A pupillary examination evaluates the nervous system which connects the eye and retina to the brain. A failure to perform such examination could cause the optometrist to overlook the existence of a brain tumor or other forms of nerve damage. Visual field testing is a diagnostic tool used to detect the presence of gross nerve damage, traumatic cataracts, glaucoma, diabetes, and certain peripheral retinal diseases. Absent such test, these diseases might not be detected. In this case, the import of Dobin's failure to perform a visual field test was heightened. Visual field testing and tonometry are two of the three diagnostic procedures utilized to detect glaucoma. Where, as here, tonometry was not performed, the importance of visual field testing is more significant to the early detection of that disease. Biomicroscopy is a diagnostic tool used to detect the presence of bacterial conjunctivitis, corneal ulcers, corneal scars, blepharitis, and some lid injuries. Absent stich test, these diseases or injuries might not be detected. An external examination is important to the detection of skin cancer, skin lesions, blepharitis, and bacterial or allergic conjunctivitis. Absent such examination, these ocular problems might be overlooked. Inadequate Patient Records Contrary to the requirement of Rule 2IQ-3.007, Florida Administrative Code, the patient case record for Ms. Lichtenstein and Ms. Pfab did not reflect whether the following tests were performed or if performed the results: (a) a complete patient history, (b) an external examination, (c) a pupillary examination, (d) a visual field test, (e) an internal examina- tion, (f) a biomicroscopy, and (g) diagnosis and treatment. The inadequacy of Dobin's patient records would adversely affect his ability, and that of a subsequent treating optometrist, in treating these patients. Absent a medical history and the results of the tests performed, an optometrist is severely hampered in his ability to track the progress of diseases, or to detect their onset. Exercising Influence For Financial Gain Petitioner asserts that Dobin, by accepting a fee for a vision analysis that did not comply with the minimum requirements of Rule 2IQ-3.007(1), Florida Administrative Code, violated Section 463.0l6(1)(m), Florida Statutes. That section prohibits: Exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or of a third party. Petitioner's proof was not persuasive. While the patients in this case may not have received the minimum examination mandated by law, I am not persuaded that such failure constituted the exercise of influence to exploit a patient contemplated by Section 463.016(1)(m). There was no showing that Dobin recommended unnecessary tests or unnecessary products, or that he otherwise sought to influence their choice of procedures or materials for financial gain. Such being the proof, the Petitioner failed to demonstrate a violation of Section 463.016(1)(m) Unlicensed Practice Of Optometry Petitioner further asserts that Dobin's "association" with Eye-Wear Glasses, Inc., his landlord, violated the provisions of Section 463.0l4(1)(c), Florida Statutes, and Rule 2IQ-3.008, Florida Administrative Code. Section 463.014(1) provides: (c) No optometrist shall engage in the practice of optometry with any organization, corporation, group, or lay individual. This provision shall not prohibit optometrists from employing, or from forming partnerships or professional associations with, optometrists licensed in this state. And, pertinent to this case, Rule 2IQ-3.008 provides: No licensed practitioner shall enter into any agreement which adversely affects the licensed practitioner's exercise of free, independent and unlimited professional judgment and responsibility, or which permits any unlicensed person or entity to practice optometry through the licensed practitioner by controlling and/or offering `optometric services to the public. The professional judgment of a licensed practitioner should be exercised solely for the benefit of his patients and free from any compromising influences and loyalties. The Board will consider the circumstances of the practice including but not limited to, the following factors in determining whether a violation of Section 463.014, F.S., has occurred: Whether the licensed practitioner holds himself out to the public as available to render professional services in any manner which implies that the licensed practitioner is professionally associated with or employed by an entity which itself is not a licensed practitioner. For purposes of this rule "entity" shall refer to any corporation, lay body, organization, individual or commercial or mercantile establishment which is not a licensed practitioner. The term "commercial or mercantile establishment" shall include, but not be limited to, an establishment in which the practice of opticianry is conducted pursuant to Chapter 484. Whether the professional office space occupied by the licensed practitioner is such that it does not clearly and sufficiently indicate to the public that his practice of optometry is independent of, and not associated with the entity. Whether the licensed practitiQner has a telephone listing and number that is separate and distinct from that of the entity or whether the phone is answered in a manner that does not identify his optometric practice or whether the telephone is answered in a way that indicates that the licensed practitioner is professionally associated with or employed by the entity. Whether the entrance to the building or commercial or mercantile area in which the licensed practitioner's practice is located sufficiently identifies that the licensed practitioner is practicing his profession independent of, and not associated with the entity. Whether advertisements, including those placed in a newspaper and/or telephone directory, imply that the licensed practitioner is professionally associated with, or employed by an entity. Whether the licensed practitioner maintains full and total responsibility and control of all files and records relating to patients and the optometric practice, in accordance with Rule 2IQ-3.003. Whether the licensed practitioner has full and complete control and discretion over fees charged to patients for his services and billing methods. Whether the provisions of a lease or space agreement between the licensed practitioner and the entity operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Whether the arrangements for the furnishing of equipment or supplies to the licensed practitioner operate so as to impair the licensed practitioner's free, independent, and unlimited professional judgment and responsibility. Eye-Wear Glasses, Inc., is owned and operated by two licensed opticians. By a "rental agreement" dated October 12, 1983, Eye-Wear Glasses, Inc., and Dobin entered into an agreement whereby Dobin was sublet space within Eye-Wear Glasses' premises. That "rental agreement" provided: RENTAL AGREEMENT BETWEEN EYEWEAR GLASSES INC. AND DR. MARK N. DOBIN Rent shall be $1.00 per month, and shall continue for a 2 year period with continuing 2 year options. This lease will go into affect on October 17th 1983. The rent of $1.00 per month shall include water, electricity, and air conditioning. Dr. Mark N. Dobin will be responsible to supply all equipment, stationary, and supplies needed to run an Optometric Office. Dr. Mark N. Dobin will have a phone installed at his own expense and his monthly bill along with Yellow Pages advertising c shall be paid by him. Dr. Mark N. Dobin will be allowed to advertise independent of Eyewear Glasses Inc. at his own expense. A key allowing access to the premises shall be given to Dr. Mark N. Dobin. Fees for Services performed by Dr. Mark N. Dobin, will be determined by Dr. Mark N. Dobin and shall be collected independent of those fees from Eyewear Glasses. Being a private entity, Dr. Mark N. Dobin shall have the right to determine his own office hours, days worked and vacation time, but he shall try to coordinate these days with those of Eyewear Glasses Inc. if this is possible. Renter, Dr. Mark N. Dobin, has the option of selling his practice and its contents to another Eye Doctor. This sale may include all records and files of patients belonging to Dr. Mark N. Dobin. At the time of sale, Eyewear Glasses Inc. has the right to renegotiate the lease, but not to alter it in such a way as to make the sale of the practice uninviting. Before the sale is finalized a 3 month trial period may be requested by either party. If Dr. Mark N. Dobin is unable to sell his practice, Eyewear Glasses Inc. has the right of first refusal to purchase his practice or his equipment. If the office is unoccupied for a period of 30 days, Eyewear Glasses Inc. has the option of subleasing the practice to another Eye Doctor, until which time the practice is sold or Dr. Mark N. Dobin returns. Dr. Mark N. Dobin has the right to hire another Eye Doctor to work his office during vacation time, or other times when he is not available. If Eyewear Glasses Inc. is not happy with the performance of said Eye Doctor. it may request that another Doctor be hired by Dr. Mark N. Dobin, but the final decision shall be his. Dr. Mark N. Dobin has the right to hire c an employee at his own expense, to assist in his office. A key to the premises may be given to said employee, but permission must first be granted by Eyewear Glasses inc. If either partner of Eyewear Glasses Inc. decides to sell his share of the corporation to the other, all points of this lease agreement shall remain in affect. If both owners agree to sell their share of the corporation, Dr. Mark N. Dobin shall have the right of first refusal to purchase Eyewear Glasses Inc. and its contents. Eyewear Glasses Inc. agrees to build a partition at its own expense in order to meet Florida State Optometric Board requirements. A Covenant of Restriction with a radius of 5 miles shall go into affect 2 years from the beginning of this lease, and shall last for a period of 3 years from the termination of this lease. Dr. Mark N. Dobin shall not sell eyeglasses or other optical excessories, excluding all items pertaining to the sale and dispensing of contact lenses. The space occupied by Dobin, which consisted of approximately 248 square feet, was located at the rear of the optician's store, and accessible by way of a sliding glass door from the store or through a back glass door from the shopping mall area. Consequently, customers of either business had an unrestricted view and access to the business of either profession. Considering the physical layout of the premises, as well as the view of the premises afforded by Petitioner's exhibit 5, the proof established that Dobin held himself out to the public in a manner that implied he was professionally associated with or employed by Eye-Wear Glasses, Inc. Indeed, the "rental agreement" itself depicts a business association more far reaching than that of landlord and tenant, and served to impair Dobin's exercise of free, independent, and unlimited professional judgment and responsibility. 1/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOM)MENDED that Respondent, Mark N. Dobin, be placed on probation for twelve (12) months, and that an administrative fine of $3,000 be imposed upon him. DONE AND ORDERED this 24th day of July, 1987, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 24th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4484 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-3. Addressed in paragraph 2. 4. Addressed in paragraph 3. 5-6. Addressed in paragraph 2. 7-9. Addressed in paragraph 4. 10. Addressed in paragraph 5. 11-12. Addressed in paragraph 4. 13-22. Addressed in paragraph 6(a) -(g). 23-24. Addressed in paragraph 7. 25. Addressed in paragraph 8. 26. Addressed in paragraphs 9-10. 27-31. Addressed in paragraphs 11-13. COPIES FURNISHED: Phillip B. Miller, Esquire c Robert D. Newell, Jr., Esquire 102 South Monroe Street Tallahassee, Florida 32301 Mark N. Dobin 7384 West Atlantic Boulevard Margate, Florida 33063 Mildred Gardner, Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner is Elizabeth Nicolitz who has been actively licensed in Florida as an optician since May 1, 1985. The Respondents are the Board of Opticianry and the Department of Professional Regulation. The Petitioner sought her attorney's fees and costs from an administrative proceeding, DOAH Case No. 92-1477, which was initiated by the filing of an administrative complaint on October 23, 1991, seeking disciplinary action against the Petitioner. The First District Court of Appeal summarized the facts and law leading up to this attorney's fees and costs case in Nicolitz v. Board of Opticianry and Department of Professional Regulation, 609 So.2d 92 (Fla. 1st DCA 1993), as: Nicolitz was previously placed on probation and ordered to file quarterly reports. When two of those reports were late filed, an administrative complaint was filed against her. Through counsel she executed an "election of rights" form and disputed the allegations of fact and sought a formal hearing before a Division of Administrative Hearings (DOAH) hearing officer in accordance with Section 120.57(1), Florida Statutes. The matter was referred to DOAH, where counsel for the Depart- ment of Professional Regulation (Department) and counsel for Nicolitz entered into a prehearing stipulation. The Department construed this stipula- tion as demonstrating an absence of disputed issues of material fact and, in accordance with Florida Administrative Code Rule 22I-6.033, moved the hearing officer to relinquish jurisdiction. The DOAH hearing officer considered Nicolitz's response in opposition to the motion to relinquish jurisdiction, heard oral argument, and denied the motion. Several weeks later, and one day before the scheduled formal hearing, counsel for the Department filed an "notice of voluntary dismissal without prejudice." This pleading essentially tracked the earlier motion to relinquish jurisdiction in concluding that no material issues of fact were in dispute, and sought dismissal without prejudice to the Department's right to proceed before the Board of Opticianry (Board) in an informal hearing pursuant to Section 120.57(2), Florida Statutes. The hearing officer entered an order which "ratified" the voluntary dismissal and purported to dismiss the administrative complaint. See F.A.C. Rule 22I-6.037. When an informal hearing was scheduled before the Board, Nicolitz petitioned this court for a writ of prohibition and we issued an order to show cause. We have considered the petition, the responses of the Department and the Board, and petitioner's reply, and grant relief. . . . [The opposition] is based in part on an argument that [Ms. Nicolitz] has failed to acknowledge and comprehend the relationship between the Department and the Board in disciplinary proceedings. While we agree that relationship is key to proper resolution of this dispute, we find it is respondents [Department and Board] who miss the mark. The disciplinary proceeding essentially evolves in three stages, the first being an investigation by the Department and its report to the Board as to the existence of probable cause. See SS. 455.225(1), (2), and (3), Fla. Stat. (1991). The Board then may direct the Department to file an formal complaint and the Department shall "prosecute that complaint pursuant to the provisions of chapter 120." S. 455.225(4), Fla. Stat. The prosecution, second stage of the disciplinary proceeding, may or may not result in a referral to DOAH, but if it does, the relationship of the Board and the Department is altered. In the first stage, and during the third stage when jurisdiction returns to the Board and it enters a final order in accordance with section 455.225(6), the Board is a quasi-judicial body and the Department acts as an investigative and prosecuting authority. While jurisdiction lies with DOAH, however, that tribunal has jurisdiction and the Board is a party to the proceedings. S.120.57(1)(b)(3). During the DOAH proceedings, the Department acts as counsel of record for the Board and, we conclude, the Board must be bound by its counsel's actions. Those actions include voluntary dismissal of a complaint. Petitioner filed her attorney's fees and costs petition pursuant to Section 57.111 F.S. with the Division of Administrative Hearings on February 26, 1993, less than sixty days after the District Court's mandate issued. That is the case sub judice. She seeks attorney's fees and costs starting from October 29, 1991. The disciplinary litigation and administrative background between Ms. Nicolitz and Respondents could be described as a long and dreary "mini war," fought in sequential encounters. An abbreviated chronology of this epic struggle is essential to reach the material issues at bar, and illustrates that most of the time the right hand of the bureaucracy had no idea what its left hand was doing, even when the right hand directed the left hand to act. Ms. Nicolitz was licensed in Florida as a Dispensing Optician Lic. No. DO 0002492, and owned an optical establishment in Jacksonville known as "Specs and Company, Inc." During the summer of 1986, Ms. Nicolitz became the sponsor of an apprentice optician named Douglas H. Stewart. Chapter 484 F.S. permits licensed opticians to sponsor an apprentice optician for training purposes and allows the apprentice to perform a limited number of opticianry tasks, subject to the regulations contained in Rules 21P-16.001 through 21P-16.011 F.A.C. On June 30, 1986, while Ms. Nicolitz was away from the establishment, apprentice Stewart measured a patient's pupillary distance and segment height for assembling and fitting a pair of glasses in apparent violation of Rule 21P- 16.003 F.A.C. On December 12, 1986, the Department initiated disciplinary action against Ms. Nicolitz's license through the filing of a formal complaint styled DPR v. Elizabeth Nicolitz, Case No. 0072717. The case was subsequently resolved by stipulation of the parties, and Ms. Nicolitz signed the stipulation on March 23, 1987. The stipulation was then presented to the Board of Opticianry on April 10, 1987. A final order was filed May 12, 1987, ordering Ms. Nicolitz to pay an administrative fine of $250.00 within 30 days. Additionally, she would be placed on probation for one year and as a condition of probation, she was required to file quarterly reports, commencing the first of the month three months from the date of the filing of the final order. On May 12, 1987, Ms. Patricia B. Guilford, Executive Director of the Board of Opticianry wrote Ms. Nicolitz pointing out that the final order had been officially filed and as such, the terms of the March 23, 1987 stipulation must now be fulfilled. Ms. Guilford also pointed out that the administrative fine of $250.00 was due on or before June 12, 1987 and that Ms. Nicolitz's probation had begun, effective May 12, 1987, and would end June 12, 1988. The letter further specified that there were "specific terms and conditions" of probation that had to be met. As part of the letter, she included a copy of the filed final order. This package was sent by U.S. Certified Mail to Ms. Nicolitz and was signed for by her agent. Ms. Nicolitz paid the $250 fine on June 1, 1987. However, she did not thereafter file her quarterly reports with the Board in satisfaction of the other terms of her stipulation. On October 6, 1990, the Board of Opticianry filed a new administrative complaint, styled DPR v. Elizabeth Nicolitz, Case No. 0106310, alleging that Ms. Nicolitz had violated the previous final order by failing to submit the required quarterly reports in a timely fashion. Ms. Nicolitz responded to the Department by asserting that she had never received the final order, especially in reference to the probation requirement. On the advice of counsel, Ms. Nicolitz suggested that a new stipulation agreement be entered between her and the Department calling for new starting dates for her probation and quarterly reports. As agreed to, the new stipulation required Ms. Nicolitz to file quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. In entering into the new stipulation agreement, the Department took into consideration allegations made by Ms. Nicolitz and her counsel that the final order may not have been properly served upon her, and agreed to dismiss pending complaint DPR v. Elizabeth Nicolitz, Case No. 0106310, filed October 6, 1990. That case was presented to the November 18, 1989 Probable Cause Panel for closure. The Panel heard the arguments and agreed to closure. During all of this period, agency personnel had harbored suspicions of Ms. Nicolitz because they felt she should have known what to do and when to do it because she had signed the stipulation and because of the agent's signature on the receipt for the final order. There were misinterpretations of the earlier closing order and attorneys for both parties fired off accusatory, and eventually explanatory and apologetic, letters. In any case, it was abundantly clear as of November 18, 1989 at the latest, that Ms. Nicolitz knew she must file her quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. As per her agreement, Ms. Nicolitz submitted her first and second quarterly report on March 22, 1990 and June 1, 1990, respectively. However, she failed to submit the third quarterly report which was due September 30, 1990. The Board sent her a letter notifying her that she was delinquent. She then submitted the third report on October 16, 1990. She was again late with the filing of her last quarterly report due December 31, 1990. The Board once again notified her of the delinquency, and she submitted the last quarterly report on February 11, 1991. On October 23, 1991, a formal administrative complaint was filed. It charged Ms. Nicolitz with a violation of Section 484.014(1)(i) F.S., which provides for discipline of a licensee for: Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. That administrative complaint became the underlying DOAH Case No. 92-1477, the procedural history of which is set out in Findings of Fact 3-4 supra. A more detailed factual history behind how the administrative complaint came to be filed is set out infra. There has never been any dispute that Ms. Nicolitz filed her first two of four required probation reports on time or that they were properly mailed directly to the Department of Professional Regulation instead of the Board. Since it was due on September 30, 1990, Ms. Nicolitz's third report, dated October 16, 1990, was 16 days late when she wrote it. Administrative Assistant Leah R. Hickel is an employee of the Board of Opticianry, whose paycheck is issued by the Department. In a letter dated October 17, 1990 Ms. Hickel advised Ms. Nicolitz that her quarterly report due September 30 had not been timely received and that she had thirty days from the date of Ms. Hickel's October 17, 1990 letter (i.e. November 16, 1990) to file the third quarterly report and comply with the terms of the final order. Ms. Nicolitz's October 16, 1990 report was stamped in as received by the Board on October 23, 1990. Ms. Hickel's letter and Ms. Nicolitz's third report must have crossed in the mail, but the third report was clearly timely received by the Board within the terms of Ms. Hickel's letter, and it may be reasonably inferred to have been received even earlier by the Department. Ms. Hickel sent a similar letter to Ms. Nicolitz on February 6, 1991 to the effect that Ms. Nicolitz's December 31, 1990 final quarterly report had not yet been received and that she must submit it within 30 days (i.e. March 8, 1991). The fourth report was filed with both Respondents within the time-frame provided in that letter. Contrary to the testimony of Susan J. Foster, the current Executive Director of the Board of Opticianry, and Manty Morse, a member of the Board and one of the members of the Probable Cause Panel which arrived at the new administrative complaint on September 16, 1991, the overwhelming record evidence is to the effect that Leah Hickel had apparent authority to extend the time for Ms. Nicolitz to file her third and fourth reports. Also, on the issue of whether or not Ms. Hickel had actual authority to extend probationers' time for reporting, it is found that she did. The Board had adopted a policy of extending by 30 days the time for filing probation reports as reflected by the minutes of an open meeting held November 3, 1989, stating: "The Board directed Ms. Hickel to send a 30-day letter any time a person is found not in compliance with a Final Order and to refer to complaints if they do not respond." (Emphasis supplied). Board Member Dale Wenal, the Board attorney, Theresa Bender, and the Department prosecutor, Renee Alsobrook, were present at the February 9, 1990 Board meeting when the November 3, 1989 Board meeting minutes were discussed and adopted. Board members, including Ms. Wenal, voted for adoption of the minutes, and both sets of minutes were preserved as a standard business record of the Board. This method of doing regular Board business, i.e. the instruction of its support service personnel, was common practice of this particular collegiate body. Under these circumstances, it is immaterial that a formal motion and vote to "create" such a policy did not occur at either meeting. It is also immaterial that Ms. Wenal and Ms. Morse were not present at the November 3, 1989 meeting and that Ms. Morse was not present at the February 9, 1990 meeting. No one for either the Board or the Department notified Ms. Nicolitz that she was in violation upon her late-filing of the third or fourth probation reports, filed within the extensions granted by Ms. Hickel on October 17, 1990 and February 6, 1991. However, on February 12, 1991, Ms. Hickel sent a memorandum to Denise Love, Senior Complaint Analyst, to the effect that she now wanted to initiate a complaint for violating the prior final order. Ms. Love advised Ms. Nicolitz via a February 26, 1991 letter of a preliminary investigation. Ms. Love already had signed the Department's internal uniform complaint form on February 21, 1991. To further obfuscate what the agency(ies) were doing, while the Department was initiating the investigation preparatory to an administrative complaint for late filed reports, Ms. Hickel notified Ms. Nicolitz by letter dated March 1, 1991 that: This will acknowledge receipt of your last quarterly report, received in this office on February 15, 1991. Please be advised we are notifying the office of licensure to remove your license from pro- bationary status, this date. The effect of the foregoing letter was to remove Ms. Nicolitz's license from probationary status as of March 1, 1991. By letter of March 28, 1991, Ms. Love invited a response to her February 26, 1991 letter from Ms. Nicolitz. Ms. Nicolitz, now thoroughly confused and frustrated, responded that she had sent all her reports and Ms. Hickel had acknowledged receipt thereof. On April 30, 1991, Ms. Love sent a similar letter to Ms. Nicolitz stating that no response from Ms. Nicolitz had been received. Ms. Nicolitz's attorney then entered the fray and wrote Ms. Love on May 21, 1991 advising her of the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. Ms. Love had already prepared an investigative synopsis to the file dated May 8, 1991. It was not altered thereafter by her. It reads: SECTION I - ALLEGED VIOLATION Failure to comply with terms of Final Order previously entered in a disciplinary hearing; violation of a rule. STATUTE/RULE NUMBER Rule 21P-8.020(2)(i), FAC; Section 484.014(1)(g), Fla. Stat. SECTION II - SYNOPSIS This investigation is predicated on the receipt of a complaint on 2/14/91 from the Board of Opticianry, alleging that Subject has failed to comply with the terms of the Final Order issued in DPR case #0072717. Subject was placed on probation and required to submit quarterly reports to the Board, but has not done so; Subject was notified of the complaint by letter to inquire dated 2/26/91 and again on 4/30/91. Response from Subject was received 4/24/91. Subject states that she has now complied with the terms of the Final Order and has submitted all of her quarterly reports. She says that Leah Hickel of the Board of Opticianry will confirm this. (Emphasis supplied). The Probable Cause Panel (Ms. Manty Morse and Ms. Dale Wenal) had at least the following items before them when considering Ms. Nicolitz's case on September 16, 1991: a uniform complaint form, a proposed closing order and a recommendation for a letter of guidance, an administrative complaint, a previously issued final order and attached affidavit of service, a memorandum of finding of probable cause, the four letters from Ms. Nicolitz to the Board purporting to be her quarterly reports, findings made by the Department, the two "extension" letters from Leah Hickel dated October 17, 1990 and February 6, 1991, the investigative synopsis, and the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. The materials had been received and reviewed by panel members earlier. Ms. Marcel Flannigan of the Department, Renee Alsobrook and Lucy Sneider, attorneys for the Department, and Theresa Bender, Counsel for the Board of Opticianry, were also present for the meeting. The direct evidence at formal hearing by Manty Morse was that she was unaware as of the September 16, 1991 Probable Cause Panel meeting of the Board's prior delegation of authority to Ms. Hickel and that she had not interpreted the Hickel letters as granting an extension for Ms. Nicolitz's third and fourth reports. With the advice of counsel, the panel had viewed each day which the probation reports were late as a separate violation of the prior final order which had never been formally modified. The exchange at the Probable Cause Panel Meeting went as follows: A VOICE: She's saying she filed her reports on April 17th of 1991. MS. ALSOBROOK: After Lea wrote. A VOICE: After. In other words, had she not written to her we'd still be waiting for her. MS. ALSOBROOK: And we also wrote her on September 30th of 1990 and she sent her report for that quarter in on October 23rd. So you may want to file an AC. It's up to you. A VOICE: An AC, air conditioning? MS. ALSOBROOK: An administrative complaint. What would you all like? You have probable cause; you can do either one. It's up to you. A VOICE: Well I would find probable cause, okay, and do file an Administrative Complaint. MS. BENDER: Okay. So you previously had found probable cause and -- A VOICE: Letter of Guidance. MS. BENDER: -- wanted to close it with a letter of guidance. A VOICE: But I would like to change that and have an Administrative Complaint. I don't feel good about this the other way. THE CHAIRPERSON: Okay. MS. ALSOBROOK: What section, 484.014(i), failure to comply with Final Orders? THE CHAIRPERSON: You don't want to send a letter to -- you want a response. A VOICE: I can't imagine that they would have attorneys -- MS. ALSOBROOK: Ready for the next one? (Whereupon, the above matter was concluded) Ms. Morse's formal hearing testimony essentially corroborated the statements made by the panel members at the September 16, 1991, Probable Cause Panel meeting. Her comments reflect the following, in part: Q With regard to the Nicolitz case, do you remember being provided with the entire investigative file? A Yes. Q When you reviewed this file to find probable cause, can you explain briefly why probable cause was found? A Probable cause was found because she didn't file her reports on time. Q Did the panel consider that each day that the reports were beyond the cutoff date for the quarter to be a violation? A Yes, we did. And we were upset that it had taken this long for her compliance and still she had not done it in a timely manner. Q Did you consider her to be, in essence, ignoring the Board? [objection] Q How did you interpret Ms. Nicolitz's actions as far as the late filing? A Well, the way the panel saw them, myself and Mrs. Wenal, was that she really didn't care, you know, and that's why we were both upset. So, she was just disregarding all the orders that were given to her previously and now, even though we had extended for her to file her reports, you know, two years, three years later. Q Do you recall if the prosecutor had recommended that you find probable cause? A Yes. Q Do you recall if the prosecutor had indicated a recommended penalty or action after you found probable cause? A I remember that they wanted a letter of guidance at that time. Q What is a letter of guidance? A It's to explain to her that there was probable cause found and for her to, you know, tell what went wrong and to guide her so she would not do it again, I guess. Q Did the panel decide to issue a letter of guidance? A At first we thought that was the proper thing to do. But then when we got into discussion, that we saw how far the case went and we saw all this inconsistency, you know, and she still filed late, that's when we decided not to go with the recommendation of the attorney. Q And what was the direction of the probable cause panel to the prosecutor? A It was to find probable cause, that we had found, and to file an administrative complaint. (Emphasis supplied) It is accepted that at the time of the Probable Cause Panel meeting, Ms. Morse did not have actual knowledge of the actual authority reposed in Ms. Hickel by the Board's actions of November 3, 1989 and February 9, 1990, but Ms. Morse's lack of actual knowledge of the Board's directive to Ms. Hickel is not controlling as to whether or not the panel's decision to file a new administrative complaint was substantially justified. Board members have a duty to advise themselves concerning the Board directives which have been previously issued to staff. Nor is it indicative of substantial justification whether or not Ms. Nicolitz knew of the content of the prior Board minutes. It is material whether the Probable Cause Panel knew or should have known on September 16, 1991, when it determined there was probable cause Petitioner had committed a violation, rejected the Department's recommendation for closing, and instructed the Department to file an administrative complaint, that the prior Board directive permitting extensions had been issued and what the panel did, knowing that the extensions had been granted. From her presence and vote on February 9, 1990, it may be inferred that on September 16, 1991 Ms. Wenel had actual knowledge of Ms. Hickel's actual authority to grant extensions and ignored it. It also is clear that on September 16, 1991, both Ms. Wenal and Ms. Morse also ignored the apparent authority of Ms. Hickel's October 17, 1990 and February 6, 1991 letters, which were physically before them, and knew of and also ignored Ms. Nicolitz's ultimate compliance with those letters, which were also before them, and that both Panel members did so because the Hickel letters were contrary to the members' subjective perception that Ms. Nicolitz had been ignoring them and their prior final orders. They also ignored the apparent ratification of Ms. Nicolitz's probation compliance contained in the March 1, 1991 Hickel letter. Their deliberations indicate no adequate basis for a probable cause determination since they had Ms. Nicolitz's quarterly reports and Ms. Hickel's extension letters before them and could not have been misled by the Department's report to the effect that Ms. Nicolitz only "states that she has now complied." (Emphasis supplied) The Department report also told them that Ms. Nicolitz requested that they ask Ms. Hickel to confirm all her assertions. Leah Hickel worked for the Board. Had the Panel consulted Leah Hickel, any doubts concerning her authority to grant extensions could have been cleared up. Therefore, the Panel ignored all exculpatory evidence pointed out by the accused. The Panel did not have a basis in law or fact for the administrative complaint actually filed. The Panel also deviated from proper legal and standard procedure by not conducting a clear vote on a finding of probable cause. 1/ Ms. Nicolitz's first report (March 22, 1990) stated that as of December 1989, she had closed Specs and Company Inc.'s optical business and that for the first quarter she had not practiced opticianry. The second report (June 1, 1990) stated she had not practiced opticianry in the second quarter. The third report (October 16, 1990) stated she had done nothing optical at all during the third quarter, other than going to a few optical meetings. The fourth report (February 11, 1991) reported that nothing had changed, Petitioner was not working for anyone as an optician and she had not done so for the last quarter of 1990. Ms. Nicolitz's four reports to the Board under the terms of her probation were that she had "closed Spec's and Company's Optical Business;" was home "out of all business settings;" "had not practiced opticianry," "was not operating a business and had not done anything optical at all," and "was not working optically or for anyone as an optician," throughout the whole of 1990. Despite a great deal of backpedalling on the foregoing representations as contained in pleadings and papers filed immediately prior to formal hearing with the intent to defuse Respondents' motion for summary final order of dismissal, Ms. Nicolitz's oral testimony at formal hearing does not appear to materially alter the representations contained in her four reports for the year 1990. To the extent that she has made any inconsistent statements in any form concerning the year 1990, those statements are found not to be credible. It is therefore found that Ms. Nicolitz was not operating as a "small business party" during the whole of 1990. With regard to her situation in 1991-1992, the only years relevant to the attorney's fees and costs incurred in the underlying case, Ms. Nicolitz testified that she operated Specs and Company, Inc. as an optical shop only until December 1989, when she closed it and moved into her two residential garages the portion of optical equipment which she was unable to sell. She did this, because, as she put it, "a question of conflict of interest arose" with her opthalmologist husband's work at Baptist Eye Institute. Specs and Company, Inc. was not administratively dissolved until October 9, 1992, but it was clearly no more than a de facto corporation at all times material. Ms. Nicolitz appeared in her individual capacity in the underlying case, and Specs and Company, Inc. was not a party. Prior to her licensure, Ms. Nicolitz was apparently only an appentice employee of the corporation. It is unclear if that status of "employee" altered after she was licensed in 1985. From 1982 until Ms. Nicolitz ceased to compete with her husband due to alleged "conflict of interest" in 1989, her corporation had all the indicia of doing business including maintaining a location open to the public during normal business hours; providing opticianry services to customers; having optical equipment, a lease agreement, secretarial staff, office equipment, finishing lab, city occupational license, business stationery, advertising, income, bank accounts; filing returns and paying sales and corporate taxes; and filing W-2 forms for employees. After 1989, any equipment which had not been sold sat in residential garages, and Ms. Nicolitz maintained no occupational license or any other indicia of a business. She specifically did not operate a business for profit out of any location labelled "Specs and Company, Inc." or "Elizabeth Nicolitz, O.D." at any time after December, 1989. Ms. Nicolitz's testimony and her answers to discovery were inconsistent or vacillated with regard to whether or not she considered what she personally did during 1991-1992 to constitute "practicing opticianry." Putting the best light on it, Ms. Nicolitz was clear that she did not think anything she did for family or friends during 1991-1992 constituted practicing opticianry "until I thought about it," immediately before a hearing on the motion for summary final order in this fees case. Her position at formal hearing was that merely maintaining an active individual professional opticianry license was sufficient to constitute "practicing opticianry." She gave as an example of what she was capable of doing as, "[A]t any time if I wanted to practice opticianry that I could. If someone was absent at, let's say Lens Crafters and they needed me to come in, I would bring my license in with me and practice under Lens Crafters with my new license for them." Admittedly, however, she never was actually employed anywhere by any other optician during this period of time. Rather, she listed herself for income tax purposes in both 1991 and 1992 as a "consultant" employee of her husband's business, "Ernest Nicolitz, M.D. P.A." She testified that this term meant "design consultant." Her husband is a medical physician, an opthalmologist. The total of the practice of opticianry now recollected by Ms. Nicolitz for 1991-1992 is that over some unspecified period of time, on sporadic occasions, she pushed lenses back into glasses frames for children whose names she did not know and with whom she had no ongoing relationship when their tumbling activities at a gym she belongs to resulted in the lenses popping out; in March or April of 1991, she replaced stripped screws in a neighbor's damaged glasses frames and heated the frames in hot water to mold them back in shape for the neighbor's face; later, she sold the same neighbor some glasses frames with nonprescription display lenses for the neighbor's mother, apparently without ever seeing the mother, and definitely without reporting the $50 sale as professional or any other type of income, and without paying any sales or other tax thereon. Ms. Nicolitz derived no pay as an optician for any of these activities and had no prescription for the tumblers, the neighbor, or the neighbor's mother. She had her professional license but no occupational license in her own name. Also, at a time no more definite than "in the fall" of 1991, Ms. Nicolitz was involved in fitting hunting glasses for her husband and son, one pair each. At her home, upon written prescriptions from her opthalmologist husband, Ms. Nicolitz fitted frames to her husband's face and her son's face, took the offset of the pupillary distance due to the scope on a gun and then "we figured out the density of the lenses we would be using and we figured out, what, you know, color tones we wanted to use in the lens. And then we ordered the lenses and had them ground at a lab to my specifications." Although she testified that her husband did not know how to offset the optical center for the hunting glasses and could not physically measure himself, her overall description shows Ms. Nicolitz was working under the direction, not of a customer, but of her husband, the opthalmologist, for whom she worked as a "consultant." She charged no separate opticianry fees and had no occupational license in her own name. Clearly, she was intentionally not in competition individually in her own right or as "Specs and Company, Inc." with her husband for "conflict of interest" purposes. Ms. Nicolitz and her C.P.A., Mr. Shelton, whose expert testimony came by way of deposition, estimated her personal net worth as between $400,000 and $450,000 for 1991-1992, but given that Ms. Nicolitz's C.P.A. made his estimates purely for family financial planning purposes 2/ and Ms. Nicolitz eschewed any concrete knowledge of her own financial affairs, their evidence does not establish Petitioner's net worth. The Department's C.P.A. expert witness estimated the combined worth of Ms. Nicolitz and her husband as $2,190,000, based upon tax returns and Mr. Shelton's deposition. No evidence categorized Petitioner's personal net worth as derived in any significant part as related to her practice of opticianry, or established the net worth of Specs and Company, Inc. or broke out with reasonable clarity Ms. Nicolitz's "personal net worth from personal and business investments." The testimony of the three attorneys who testified as to fees and costs has been thoughtfully considered and weighed. It is found that Petitioner was obligated to her attorney for fees and costs for 15.30 hours and no allowable costs as of the date of voluntary dismissal of the underlying case, for 40.30 hours and $279.70 in allowable costs as of the date the initial petition for fees and costs was filed February 26, 1993, for 40.30 hours and $279.70 in allowable costs as of the date of filing of the amended fees and costs petition herein; and for 126.30 attorney hours and $368.05 costs as of the commencement of formal hearing on fees and costs herein. The rate of $200.00 dollars per hour charged by Petitioner's counsel is a reasonable hourly rate, given the unique circumstances of this case. At that rate, Petitioner's counsel established sufficient hours to reach the $15,000 statutory cap prior to the commencement of formal hearing on the attorney's fees and costs issues. 3/
