The Issue The issues in this case are whether the allegations set forth in the Administrative Complaint filed by the Department of Health (Petitioner) against Alexander Gaukhman, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed dentist in the State of Florida, holding license number DN 15657. The Respondent's mailing address of record was 400 Hanchey Drive, Nokomis, Florida 34275. Beginning on February 28, 2006, and continuing through January 10, 2007, the Respondent, or persons in his dental office, provided dental care and treatment to Patient S.K. (Patient), a female approximately 46 years of age. According to the Respondent's records, the woman presented to the Respondent as a new patient complaining of "severe pain" on February 28, 2006. On that date, the Respondent's records indicate that he performed a limited examination that included taking diagnostic x-rays. A limited oral examination is appropriate under emergent circumstances where the presenting complaint is severe pain. The Respondent's records contain no written documentation of the Respondent's findings based on his examination of the patient and no written diagnosis of oral pathology or disease. The Respondent performed root canal treatment on the Patient's teeth numbered 8 and 9 and placed crowns on the two teeth. The Respondent's records contain no written treatment plan related to root canal treatment provided to the patient. The Administrative Complaint alleged that the Respondent's treatment notes failed to identify the type or amount of anesthetic used during the root canal treatment. The evidence fails to establish that the Respondent administered anesthetic to the Patient during the root canal treatment. In addition to the emergency root canal treatment performed on February 28, 2006, the Respondent also placed veneers on the Patient's teeth numbered 6, 7, 10, and 11. Placement of prosthetic dental veneers is a cosmetic, not an emergent, procedure. The Respondent's records contain no written record of an examination related to placement of the cosmetic prosthetic dental veneers, no diagnosis or other information establishing the rationale for placement of the veneers, and no written follow-up plan related to the veneers. The Patient presented for prophylaxis (cleaning) on March 16, 2006, and again on October 10, 2006. The cleaning was performed by a dental hygienist working for the Respondent. According to the Respondent's records, the Respondent examined the patient on those dates. Such an examination would have included periodontal probing to determine the Patient's dental health. The Respondent's records fail to contain any record of a periodontal probing on March 16, 2006, or on October 10, 2006. Other than notation of pockets related to the root canal procedure, the Respondent's records fail to contain any indication that the Respondent performed periodontal probing on the Patient. Such probing is a basic and routine part of an examination to determine dental health. Because the Respondent was providing dental health services to the Patient, it is reasonable to presume that the Respondent performed the probing, but failed to document the process in his records. The Respondent has been previously disciplined by the Petitioner in an unrelated matter that was resolved in 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding the Respondent in violation of section 466.028(1)(m) and imposing the following penalty: Imposition of a fine of $2,500. Successful completion of an educational course related to dental record-keeping and passage of the Florida Board of Dentistry Laws and Rules Exam. The Board of Dentistry shall designate the educational course and shall establish the deadlines related to imposition of this penalty. DONE AND ENTERED this 31st day of October, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921- 6847www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2011.
The Issue Whether Respondents violated Sections 458.331(1)(k), (m), (n), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of medicine pursuant to Section 20.42 and Chapters 455 and 458, Florida Statutes. Respondent, Alan K. Roberts, M.D. (Roberts), is and has been at all times material to this proceeding a licensed physician in the State of Florida having been issued license number ME 0030398 in 1977. He is a Board Certified family practice physician. Respondent, Peter R. Genovese, M.D. (Genovese) is and has been at all times material to this proceeding a licensed physician in the State of Florida having been issued license number ME 0013626. He is a Board Certified family practice physician. Roberts and Genovese are the co-owners of Sunshine Medical Center (SMC) which operates three separate offices located in the Miami area at Sunset Drive, Port of Miami, and Port Everglades. Jose R. Menendez, M.D. (Menendez) has been a licensed physician in the State of Florida since 1973. Menendez began working for SMC in 1992 and worked there for approximately six months. Menendez worked at the Sunset Drive and Port of Miami locations. Aside from his salary, Menendez received no other remuneration and had no financial interest in SMC. PATIENT C.W. In 1985, SMC had a contract with the Public Employees Service Company (PESCO) whereunder SMC would perform routine screening physicals on Dade County teachers and administrators. The physicals were called VISTA examinations. Patient C.W., a clerk with the Dade County School System, went to SMC for a VISTA examination on October 16, 1985. She filled out a patient information form indicating her home address, home telephone number, name of employer, and her work telephone number. C.W.'s examination consisted of blood tests, urinalyses, chest x-rays, EKG, hearing function tests and a spirometry. All of the tests were administered by a female employee of SMC. After completion of the tests, C.W. met with a man whom she believed was a doctor, who in her presence, looked at the x-rays. C.W. did not see the x-rays herself. She was advised that "everything looked fine." She was not told that she had a problem with her lungs or that the x-rays showed that she had any suspicious tumors or masses on her lungs. In reality, the x-rays indicated abnormalities in her chest. C.W.'s spirometry test results were abnormal and her white blood cell count was low, but she was not informed of these abnormalities. C.W.'s charts show that she was seen at SMC on October 16, 1985, but do not indicate what doctor was responsible for supervising and administering the tests and what doctor met with C.W. after the tests were completed. There are no physical findings recorded in the clinical data portion of C.W.'s chart and no notes are in the chart as to the results of the tests performed. Neither Dr. Genovese nor Dr. Roberts examined C.W. on October 16, 1985. SMC used a pre-printed form letter to notify its patients of the results of the VISTA examination. The form letter contained the stamped signatures of the Respondents. On October 21, 1985, an undated form letter was sent to C.W. advising her that the results of the VISTA examination were normal and satisfactory and that no medical follow-up was necessary. A handwritten notation on the form letter stated, "Please increase the iron intake. Your blood work show (sic) decrease iron. Also, stop smoking." C.W. received the letter. The form letter contained stamped signatures of the Respondents. On November 4, 1985, the Respondents were conducting a routine review of patients' charts and x-rays, including those of C.W. The Respondents noted the abnormality on C.W.'s x-ray. C.W.'s charts did not mention the abnormality. On November 4, 1985, Respondents sent a second preprinted and presigned form letter to C.W. which advised C.W. that the results of the VISTA examination required a follow up visit. The form letter contained the following handwritten note: Review of our records reveals that your lab reports were omitted from our report of 10-21-85. A copy is enclosed for your family doctor. Also, your chest x-ray is abnormal and you should see your family doctor immediately for a second x-ray and follow-up care. The second letter was sent by first class U.S. mail. C.W. did not receive the second letter informing her of the abnormal x-ray. On November 12, 1985, the laboratory supervisor for SMC placed a telephone call to C.W. at her home but did not get an answer. On November 14, 1985, Genovese placed a telephone call to C.W.'s home but did not receive an answer. On November 19, 1985, Roberts called C.W. at home and received no answer. On November 19, 1985, Roberts called PESCO and advised a PESCO staff member that C.W. had an abnormal chest x-ray. No further attempt was made by Respondents to contact C.W. The purpose of the telephone calls to C.W. was to make certain that she got follow-up treatment for the mass in her lung. After the examination at SMC, C.W. began having a fever and generally felt ill. In February, 1986, C.W. consulted with a doctor and was advised that she had a tumor in her lung. The lower lobe of her right lung was surgically removed; however, the cancer spread to other parts of her body. C.W. died as a result of lung cancer. When the October 21 and November 4, 1985 letters were sent under the Respondents' preprinted signatures, the Respondents became involved in the care of Patient C.W. Patient C.W. was advised by a form letter from Respondents that her examination was satisfactory, when a review of C.W.'s x-ray showed a gross abnormality. To so advise the patient gave the patient a false reassurance that she was physically well except for her anemia. The document did not accurately reflect the test results of the patient. Respondents again involved themselves in the care of Patient C.W. when they reviewed her x-rays and discovered the abnormality in her lung and sent a second letter to notify her that the x-ray was abnormal and that she should see her family doctor. Although the letter was sent first class U.S. mail and was not returned to Respondents, Respondents should have either sent the letter by certified mail or made personal contact with C.W. Failure to do so constituted a level of care and treatment which fell below that level which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. INSURANCE BILLINGS In order to start the billing process for services provided at SMC, each doctor generates a "super bill" which reflects the services provided such as office visit, x-rays, laboratory work and electrocardiograms. The charges are placed on the super bill by clerical staff and returned to the doctor at the end of the day to be checked for accuracy. The super bill is then transmitted to the billing department at SMC where it is encoded by a clerk and an insurance claim form is generated. As part of the encoding process, either a doctor's name or SMC's name is placed on the form. As part of SMC's quality assurance program, the insurance claims are reviewed in batches to check that the diagnoses, procedures and charges are appropriate. It is common for the insurance claims to be backed up for 7 to 10 days in the billing department. The money collected for the insurance billings goes directly to SMC. SMC submitted insurance claims for treatment of the following five patients during March 1993 through May 1993: J.V., R.L., L.W., P.Z., and D.W. SMC submitted a claim form dated March 31, 1993 to Metropolitan for services rendered to patient J.V. on March 25 and 29, 1993. The claim form stated that the physician was J.R. Menendez. Part of the services rendered to on March 25, 1993 was an injection of terramycin. Menendez did not work on March 25, 1993. He has never administered any Terramycin intramuscularly or intravenously to a patient in his professional career. Menendez did not provide any services to patient J.V. on March 25, 1993. The services listed on the claim form were provided to patient J.V. on March 25, 1993, by staff at SMC; however it was by someone other than Menendez. Menendez did provide follow-up services for J.V. on March 29, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient R.L. on March 30, 1993. The claim form stated that the physician was J.R. Menendez. Menendez did not work on March 30, 1993 and did not provide any services to patient R.L. on that date. However, the services listed on the insurance claim form were provided to patient R.L. by someone at SMC on March 30, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient D.W. on March 31, 1993. The claim form stated the physician was J.R. Menendez. Menendez did not work on March 31, 1993, and did not provide any services to patient D.W. on that date. Someone at SMC, other than Menendez, provided the services to patient D.W. on March 31, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient P.Z. on March 31, 1993. The claim form stated the physician was J.R. Menendez. Menendez did not work on March 31, 1993, and did not provide any services to patient P.Z. on that date. P.Z. was provided the services on March 31, 1993, by someone at SMC other than Menendez. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient L.W. on March 30, 1993. Part of the services rendered to L.W. was an injection of terramycin. Menendez did not work on March 30, 1993, and did not provide any services to patient L.W. on that date. Someone else at SMC provided the services to patient L.W. on March 30, 1993. SMC submitted an insurance claim to Central States Southeast and Southwest Areas Health and Welfare Fund for services provided to patient P.W. on February 3, 1993. The claim form stated that the physician was Jose M. Menendez and contained the purported signature of J. Menendez, MD. Menendez did not provide services to P.W. on February 3, 1993, and did not sign the insurance claim form. P.W. was a regular patient of Roberts. Roberts examined and treated on February 3, 1993. As of August 12, 1993, SMC had not received payment from Central States for services provided to P.W. on February 3, 1993. SMC submitted a second claim for the February 3 services, but this time the physician was listed as Dr. Modesto Ordoqui. Some time in April, 1993, one of the Respondents gave Menendez a folder containing some insurance claim forms to review to make sure the services correlated with the diagnoses. After reviewing the files, Menendez concluded that he had not provided services to patients J.V., R.L., L.W., P.Z. and D.W. listed on the insurance claim forms given to him by Roberts. On April 15, 1993, at a dinner meeting with Respondents, Menendez told them that he had not provided the services to the patients on the insurance claims that Roberts had given him to review. The Respondents told him that they did not know what he was talking about. Menendez resigned that evening.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaints in Case Nos. 94-3430 and 94-3757; finding Respondent Dr. Kenneth Alan Roberts guilty of violating Sections 458.331(1)(m) and (t), Florida Statutes in Counts One and Two of Case No. 94-3759, finding Respondent Dr. Peter R. Genovese guilty of violating Counts One and Two in Case No. 94-2142; and imposing the following penalty as to each Respondent: (1) one year probation with terms and conditions to be set by the Board, (2) an administrative fine in the amount of $3,000, and (3) a reprimand. DONE AND ENTERED this 27th day of December, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 27th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2142 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: The second sentence is rejected as unnecessary. The remainder is accepted. Paragraphs 3-4: Accepted. Paragraphs 5-8: Accepted in substance. Paragraph 9: Rejected as unnecessary. Paragraph 10: Accepted. Paragraph 11: The first, second, fourth, fifth, sixth, and seventh sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 12: The first and fourth sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 13: Rejected as unnecessary based on the finding that Menendez did not work on March 25, 30, and 31, 1993. Paragraph 14: Accepted that Menendez did not work on March 25, 30, and 31, 1993. The remainder is rejected as unnecessary. Paragraph 15: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 16: The first two sentences are rejected as unnecessary. The third and fourth sentences are accepted in substance. The fifth, sixth, seventh, and eighth sentences are rejected as unnecessary. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The last sentence is rejected as not supported by the record. The remainder is rejected as constituting argument. Paragraph 18: The first sentence is rejected as unnecessary. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 19: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 20: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraphs 21-22: Accepted in substance. Paragraph 23: Rejected as subordinate to the facts found. Paragraph 24: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 25: Rejected as unnecessary. Paragraph 26: Sentences 1-8, 10, and 11 are accepted in substance. Sentences 9 and 12 are rejected as unnecessary. The last sentence is rejected as subordinate to the facts found. Paragraph 27: The second and third sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 28: Rejected as subordinate to the facts found. Paragraph 29: Accepted in substance. Paragraph 30: The first sentence is rejected as not supported by the evidence. The billing practices may not have been proper in that the correct treating physician's name was not listed on some of the insurance claims but the evidence does not support a finding that the incorrect billing was anything other than a clerical mistake. The last sentence is rejected as subordinate to the facts found. Paragraph 31: The first two sentences are rejected as unnecessary. The third and fourth sentences are accepted in substance. The remainder is rejected as constituting argument. Paragraph 32: Accepted in substance that the second billing was a rebilling. The documentary evidence established that the second billing was in Dr. Ordoqui's name. The last sentence is rejected as constituting argument. Paragraph 33: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 34: The first through the fourth sentences are accepted in substance. The last two sentences are rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraphs 35-38: Accepted in substance. Paragraph 39: The second sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 40: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 41: Accepted in substance. Paragraph 42: Accepted in substance that Respondents met on November 4, 1985 and discovered the abnormality in the x-ray. Paragraph 43: The last phrase of the last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 44: Accepted. Paragraph 45: Accepted in substance. Paragraph 46: The evidence did not establish that Rene Bravo saw Patient C.W. The remainder is irrelevant based on the findings of fact. Paragraphs 47-49: Accepted in substance. Respondents' Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-6: Accepted in substance. Paragraph 7: The last sentence is accepted. The first sentence is rejected to the extent that the evidence does not establish that either Respondent gave either claim form for P.W. to Menendez. Given that one of the claim forms was not generated until after Menendez resigned, at least one of the forms could not have been given to Menendez. It is accepted that Menendez did not recognize the signature on one of the claims as his. Paragraph 8: Accepted in substance. Paragraph 9: The last sentence is rejected as not necessary. The remainder is accepted in substance. Paragraph 10-11: Rejected as subordinate to the facts found. Paragraph 12: The first sentence is accepted. The second sentence is rejected as unnecessary. Paragraph 13: Rejected as subordinate to the facts found. Paragraph 14: Accepted in substance. Paragraph 15: Accepted that the second billing was a rebilling for services for which no payment had been received. Based on the bill under Dr. Ordoqui's name, it appears that the first bill was under Menenedez's name and the second bill was under Dr. Ordoqui's name. Paragraphs 16-23: Accepted in substance. Paragraph 24: Accepted in substance that neither Respondent examined C.W. on October 16, 1985. Paragraph 25: Rejected as subordinate to the facts found. Paragraph 26: The first sentence is accepted in substance. The second sentence is accepted in substance to the extent that the use of a form per se does not constitute notification below the prevailing standard of care. Paragraph 27: Accepted in substance. Paragraph 28: Rejected as irrelevant since the Respondents adopted that method to inform the patients and by sending it out under their signature became responsible for the care of the patient. Paragraph 29: Accepted in substance that it was customary for the Respondents. Paragraphs 30-31: Accepted in substance. Paragraph 32: Rejected as subordinate to the facts found. Paragraph 33: Accepted in substance. Paragraph 34: The first sentence is rejected as not supported by the evidence. The second sentence is accepted in substance except as to treated. Paragraphs 35-36: Rejected as not supported by the evidence. COPIES FURNISHED: Joseph A. Garwood, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street allahassee, Florida 32399-0792 Harold M. Braxton, P.A. Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, Esquire General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue presented for decision herein is whether or not the Respondent engaged in proscribed conduct, set forth hereinafter in detail, as is more particularly set forth in a two count administrative complaint filed herein dated May 12, 1986.
Findings Of Fact Respondent, Cecil Rolle, during times material was a licensed dentist in Florida having been issued License Number DN0005067. On January 24, 1984, Respondent treated Karen Fuller, a patient. For such treatment, Respondent charged $250 for dental services rendered and Ms. Fuller paid $50 on account. (Petitioner's Exhibit 8). Ms. Fuller never returned for follow- up treatment nor did she pay the outstanding balance of $200 for services rendered. On approximately July 26, 1985, Respondent received a letter and an accompanying executed medical release authorization from Fuller's attorney, Scott Saperstein, requesting copies of "any and all records, charts and x-rays regarding the care and treatment of Karen Fuller." (Petitioner's Exhibit 1). Respondent failed to provide the records requested in the July 26, 1985 letter until more than one (1) year later on August 11, 1986. On about September 6, 1985, Respondent received a second written request from attorney Saperstein requesting Ms. Fuller's records. (Petitioner's Exhibit 2). Respondent again failed to provide the requested records. Shortly after making the September 6, 1955 request, Scott Saperstein spoke to Respondent who advised that he had treated patient Fuller on one occasion, that she had not made payment or still owed money for that visit and that he would not release patient records while the outstanding fee remained unsatisfied. On October 25, 1985, attorney Saperstein wrote to the Department of Professional Regulation (DPR) advising of Respondent's failure to provide the requested documents and a copy of that letter was sent to Respondent. (Petitioner's Exhibit 3). On December 10, 1985, Respondent received a letter from DPR requesting that he explain his failure to provide the patient's records to attorney Saperstein. (Petitioner's Exhibit 4). On January 28, 1986, Respondent sent a written reply to DPR apologizing for having delayed responding to DPR's original request and furnished a summary of treatment he provided to Ms. Fuller on November 24, 1984. (Petitioner's Exhibit 5). However, Respondent offered no explanation as to the reason he did not provide Ms. Fuller's records as requested by her counsel. On February 3, 1986, Respondent received another letter from DPR requesting that he respond to the allegations, i.e., his failure to make patient's records available immediately. (Petitioner's Exhibit 6). Respondent never replied to this second request by DPR. On July 28, 1986, Respondent received written notification from Karen Fuller's counsel advising of his intent to initiate litigation alleging dental malpractice against Respondent relative to the treatment Petitioner provided Ms. Fuller. (Petitioner's Exhibit 7). On approximately, August 11, 1986, Respondent provided Ms. Fuller's counsel with her original medical records. (Petitioner's Exhibit 8). Respondent acknowledged that he is required to know the pertinent statutes and rules relating to the practice of dentistry. Respondent also acknowledged that he did not turn over Ms. Fuller's medical records initially based on an informed decision reached after consultation with his attorney and directives from his medical malpractice insurance carrier to the effect that he should not release medical records until his insurance carrier authorized him to do so. Respondent initially advised attorney Saperstein that since Ms. Fuller had failed to pay the entire fee for services rendered, he would not be releasing copies of her medical records. Respondent made the decision to withhold Ms. Fuller's medical records until the air was cleared surrounding the competing claims between attorney Saperstein and his malpractice insurance carrier.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent pay Petitioner an administrative fine of $1,000 within thirty (30) days after entry of Petitioner's Final Order. Respondent be issued a written public reprimand by the Petitioner, Board of Dentistry. RECOMMENDED this 15th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3676 Rulings on Petitioner's Proposed Recommended Order Paragraph 8. Accepted as modified in paragraphs 6 and 13, Recommended Order. Paragraph 14. Accepted as modified in paragraph 11, Recommended Order. Paragraph 15. Accepted as modified in paragraph 14, Recommended order. COPIES FURNISHED: Henry N. Adorno, Esquire Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue Park Place II, Suite 240 Coral Gables, Florida 33146 Harold C. Culmer, Esquire, P.A. 5020 Northwest Seventh Avenue Miami, Florida 33127 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon all the evidence, the following findings of fact are determined: Background Respondent, Morley F. Vail, is a licensed dentist having been issued license number DN 0003030 by petitioner, Department of Professional Regulation (DPR), Board of Dentistry (Board). When the events herein occurred, respondent operated the Atlantic Denture Clinic at 1052 University Boulevard North, Jacksonville, Florida. He now resides at 2471 Sage Court, Middleburg, Florida. Respondent has been practicing dentistry for over thirty years, having been licensed by the state in 1960. Except for this proceeding, there is no evidence that he has ever been the subject of disciplinary action in connection with his license. Respondent rented his office space and equipment from another local dentist, Dr. Holloway, in an "as is" condition. The building in which the space was located was antiquated and, among other things, was in need of roof repairs. In addition, all of the equipment was old but still functional. Although the building had a number of rooms, respondent leased only a portion of the building. This included a room used as a reception area, two small cubicles used as patient examination rooms and a room behind the examination rooms which was used as a laboratory to make dentures. The remainder of the building was not used for dental purposes. However, respondent's office manager used a part of the unleased portion of the building as a storage area for her furniture and other personal items. At this point in respondent's career, his practice was limited to extractions and making dentures. Count I Count I alleges that inspections of respondent's office on March 26, 1992, and April 8, 1992, revealed he failed "to provide and maintain reasonable sanitary facilities and conditions" and that he violated Subsection 466.028(1)(bb), Florida Statutes, by violating Chapter 21G-25, Florida Administrative Code. Although not specifically stated in the complaint, this latter charge is presumably based upon the allegation that "Dr. Vail's Drug Enforcement Agency certificate expired on or about May 31, 1991". On an undisclosed date in March 1992, a City of Jacksonville deputy field inspector for the tax collector's office inspected respondent's office to determine if respondent had a city occupational license for the year 1991-92. Finding that the occupant of the building had no license, the inspector left a notice advising respondent that he needed a license. When no response was promptly received, the inspector returned to respondent's office on March 26, 1992. At that time, respondent paid for a new license. During the course of the visit, the inspector entered the premises and said he was not "impressed" with the conditions of the waiting room because it "wasn't what (he) was used to". Because the inspector desired to ascertain if more than one business was being conducted on the premises, he went to a "back room" and observed uncovered "utensils and pans" and concluded the room was a dental laboratory. Based upon an anonymous complaint, and a "referral" by the City of Jacksonville inspector, on April 8, 1992, a DPR investigator, Charles C. Coats, III, made an unannounced visit to respondent's office. According to Coats, the office had considerable dust, aged equipment, a leaky roof which had caused water damage to the panels of one room and "bleeding" paint from moisture, and a "cluttered" examination room. Photographs of the office taken by Coats have been received in evidence as petitioner's exhibits 2A and 2B. Coats also noted that respondent's Drug Enforcement Agency (DEA) certificate had expired on May 31, 1991, or almost a year earlier. Such a certificate is required from the DEA in order to prescribe controlled substances. After discussing these matters with respondent, Coats advised respondent that he would be required to turn the results of his investigation over to the Board for possible action. Although respondent's office was not a model of cleanliness in March and April 1992, it is found that it was not in such a deplorable condition as to constitute "unreasonable" sanitary facilities and conditions. Count II Count II alleges that from July 1991 through November 1991 respondent "violated Section 466.028(1)(q), Florida Statutes, by prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist". This charge stems from respondent's treatment in 1991 of a female patient identified as S. H. S. The facts underlying this charge are extremely confusing since the copy of the patient records offered into evidence is only partially legible, the abbreviations and medical jargon contained in the records were not translated by any witness, the dates in the complaint do not correlate in all respects to the dates in the patient records, many of the prescriptions are not recorded in the records, the testimony of the patient was confusing and contradictory, and most of the prescriptions offered into evidence were in the names of someone other than S. H. S. In addition, a large number of the prescriptions had been telephoned into the pharmacies by unknown persons or did not bear respondent's signature. In judging the credibility of S. H. S.'s version of events, the undersigned has considered the contradictions in her testimony, her inability to recall specific dates and times, and the fact that she has been arrested at least once for fraudulently obtaining drugs. In addition, the patient had a lengthy history of abusing drugs and did not relate this fact to respondent when she requested treatment. She also admitted that during the relevant time period, she used aliases to obtain drugs, and she would telephone various pharmacies, identify herself as respondent's assistant, and then authorize a prescription to be filled under her name or an alias. Finally, when she was arrested in 1992, it can be inferred from her testimony that she quickly volunteered respondent's name to authorities in a less than favorable light in an effort to obtain a lighter sentence. This disclosure led in part to an investigation of respondent by law enforcement authorities. Given these considerations, the undersigned has not accepted her testimony as being credible. Although the complaint alleges that respondent began treating S. H. S. in May 1991, the patient records reflect she first visited his office on April 15, 1991. Among other things, the patient desired to have all of her upper teeth extracted and replaced with a full plate denture. She also presented a complaint about her lower teeth which were causing pain. On the first visit, S. H. S. says respondent did an impression and took x-rays and on the second visit, which was "two or three days" later, he extracted fourteen teeth. However, the records indicate that the teeth were not extracted until her fourth visit, or on May 4, 1991. In any event, the records show that on visits made on April 15 and 20, 1991, the patient was given prescriptions for fifteen and twenty lortab 7.5 tablets, respectively, a schedule III controlled substance. This was presumably in response to a notation in the records that "pt. has pain." The records contrast with the patient's recollection that she received prescriptions for percodan and valium on her first and second visits. However, her recollection is partially confirmed by respondent's acknowledgement that when the teeth were extracted, he gave the patient valium because she was extremely nervous and jittery. The prescription for valium is not noted in the records. Although the patient says she next visited respondent's office in July 1991 when she broke her temporary plate, the records reflect that she returned to respondent's office on May 12, 1991. At that time, the records note that she asked for a refill of a prescription but she was "reminded still had Rx". However, on May 18, 1991, she was apparently given another prescription for eighteen lortab 7.5 tablets. The notes pertaining to the reasons why the prescription was given are not legible. On June 1, 1991, the records indicate S. H. S. "called on phone for Rx" but she was told she "needed to come in for exam." On June 5, 1991, the patient made another office visit. The word "healing" is legible but most of the remaining notes are not. The records do indicate that she was given a prescription for eighteen lortab 7.5 tablets that day. On July 5, 1991, or four weeks later, the patient returned to respondent's office for a visit. On that day, the records note that she was "still in pain" and was given a prescription for eighteen more lortab 7.5 tablets. S. H. S. next visited respondent's office on August 8, 1991, or more than a month later. The notes reflect that the "upper (illegible) healing slowly". She was given another prescription for eighteen lortab 7.5 tablets. There is a subsequent undated notation in the records that "pt. called on phone wanting Rx, pt. told required office visit." The final notation relevant to this complaint was made on December 6, 1991, and stated that "pt. has painful lower teeth, told to get (illegible)." The amended complaint alleges that "from approximately May 1991 through November 1991, Dr. Vail prescribed Lortab 7.5 to patient S. H. S." and "routinely provide(d) (her) access to controlled substances including Lortab 7.5 and Percodan, without the benefit of an evaluation, examination or proper diagnosis and treatment planning." To substantiate these allegations, a large number of prescription forms allegedly written or authorized by respondent were offered into evidence. In addition, S. H. S. attempted to bolster this allegation by stating that beginning in July 1991 she visited respondent's office up to three times a week and telephoned his office the same number of times, for a total of six personal or telephonic contacts per week, all for the purpose of obtaining prescriptions for drugs. As to this assertion, the patient's testimony is rejected as not being credible. Testimony was offered by four Jacksonville pharmacists who filled prescriptions for S. H. S., or an alias, or for a male who had the same last name. Since the undersigned has deemed the prescriptions in the name of someone other than S. H. S. or those written after the dates cited in the complaint to be irrelevant and having no probative value, only seven prescriptions in the name of S. H. S. have been considered. They are dated July 30, 1991 (fourteen lortab 7.5 tablets), August 1, 1991 (sixteen lortab 7.5 tablets), September 24, 1991 (sixteen percodan tablets), September 27, 1991 (eighteen percodan tablets), October 10, 1991 (fifteen percodan tablets), October 10, 1991 (ten lortab 7.5 tablets), and October 14, 1991 (twelve percodan tablets). Of these seven, prescription number 501738 filled on October 14, 1991, for ten lortab 7.5 tablets was apparently telephoned in by an unnamed person and has been disregarded given the testimony of the patient that she would telephone in prescriptions while posing as respondent's assistant. It is noted that none of these six prescriptions are found in the patient records and all were written after respondent's DEA certificate had expired. Controlled substances are classified into five schedules, with Schedule I drugs (e.g., heroin) having no medical value and the greatest abuse potential. Percodan is a Schedule II controlled substance having a high potential for abuse and addiction, and misuse may lead to severe psychological or physical dependence. It is noted that a Schedule II prescription cannot be telephoned in by a physician. Instead, a written prescription must be personally presented by the patient to the pharmacist. Lortab 7.5 is a Schedule III controlled substance and has a potential for abuse. Misuse of the substance may lead to moderate or low physical dependence or high psychological dependence. Finally, valium is a Schedule IV drug having a lower potential for abuse. It may be reasonably inferred from the evidence that the patient required percodan or lortab for a reasonable period of time after having fourteen teeth extracted, given the fact that she was a slow healer. In addition, the patient's lower teeth were in need of treatment, and the records reflect she continued to experience pain until December 1991. Even so, the dispensing of six prescriptions for schedule II or III controlled substances from July 30 until October 14, 1991, constituted a failure to prescribe drugs in the course of his professional practice, especially since the patient exhibited an unhealthy pattern of continually requesting refills. Count III In Count III, respondent is charged with failing "to provide and maintain reasonable sanitary facilities and conditions" during a July 1992 inspection, prescribing a legend drug to an undercover police officer other than in the course of his professional practice, operating a dental office in such a manner as to result in dental treatment below the minimum acceptable standards of performance for the community, and failing to keep written records and medical history justifying the course of treatment of a patient. Improper prescribing of a drug On June 15, 1992, Latoyle A. Levister, a detective with the Jacksonville Sheriff's Office, visited respondent's office in an undercover capacity. Using the name of "Nikki Lewis", and posing as a "go-go dancer just off the plane from Chicago", the detective told respondent that two fillings had just fallen out, she was in pain, and she needed advice as to what treatment was appropriate. This complaint turned out to be true since Levister had just lost fillings from two teeth. After Levister was taken to an examination room, and she gave a brief patient history, respondent examined her mouth with what Levister recalls was a "mirrow-type instrument". He did not take any X-rays. Respondent confirmed the fillings were missing and, according to Levister, suggested as a course of treatment that she either have an extraction, which he could perform, or a root canal, which would have to be performed by another dentist. He also suggested that to ease her pain until she made a decision, she take a prescription drug and offered her one of four drugs, including percodan. He also asked if she was allergic to aspirin. Levister selected percodan and thereafter received a prescription for eighteen percodan tablets and twenty-five ampicillin tablets, the latter being an antibiotic. The prescription for percodan was filled at a nearby drug store. On June 17, 1992, Levister telephoned respondent's office and asked for a refill of her percodan prescription. She was told it could not be done by telephone and she must make an office visit. Accordingly, she visited his office that afternoon. After Levister was seated in the examination room, Dr. Vail entered the room, asked her what she needed, and she responded "percodan". He then had her open her mouth, briefly checked her teeth, and wrote her a prescription for eighteen percodan tablets. Before she left, respondent asked her to advise him if she had any problems. On June 23, 1992, Levister again telephoned respondent's office and asked for a refill of her percodan prescription. She was told she needed to make an office visit. That afternoon, she visited respondent's office but did not see Dr. Vail. Instead, she spoke to his office manager who then went to the laboratory and returned with a prescription for twenty percodan tablets written by Dr. Vail. On June 26, 1992, Levister returned to respondent's office without an appointment. This was because respondent's telephone line had been busy and she was unable to secure an appointment by telephone. After being seated in the examination room, Levister told Dr. Vail that she wanted a refill of the percodan. Respondent reminded her that she had already received three prescriptions and cautioned her that the drug was "highly addictive". After briefly examining her teeth, he again advised her to either have an extraction or a root canal. Again, no X-rays were taken. Levister told respondent that she had difficulty in filling the last prescription, could not afford to have it filled in her own name, and asked if a prescription for percodan could be written in her mother's name, "Nancy Baker", who had dental insurance. Respondent then wrote a prescription for twenty percodan tablets in the name of "Nancy Baker". He readily acknowledges that this was "poor judgment" but his "intention was to provide (Levister) relief from pain, which the patient had complained of on previous visits." By prescribing a Schedule II controlled substance in the name of someone other than a patient, and by prescibing the same drug on June 23, 1992, without actually examining the patient, respondent prescribed a drug other than in the course of his professional practice. Failure to provide sanitary facilities After Levister's undercover work was completed, on July 7, 1992, the Jacksonville Sheriff's Office executed and served on respondent's office a search warrant and subpoena for certain patient records. A DPR investigator accompanied the detectives. Respondent was not present on the premises that day. As a result of his inspection, one detective characterized the premises as "deplorable", "very nasty" and "dirty", and he observed rust and blood on instruments. Levister was also present and observed a suction device in a patient examination room lying on the floor. She also saw dirty (rusted or bloodied) instuments and ants crawling across the counter in one of the rooms. Although she found a back room clogged with "all kinds of junk and furniture" and a refrigerator with mold and mildew, this room was not a part of the dental office but rather was used as a storage area by the office manager. According to the DPR investigator, the office was in a "little bit more deteriorated" condition than in April 1992, and no visible improvements or corrections had been made since his last visit. More specifically, he observed "exposed" dental instruments that appeared to be "corroded or rusted", a used pair of rubber gloves on a countertop and exposed hypodermic needles. When asked to compare the office with others he had inspected, Coats says he inspected only those offices that he suspected might be below standards, and respondent's office "could be worse or better" than others he had seen. He added that the office was "mighty close" to being classified as unsanitary. Petitioner's expert reviewed the photographs taken of respondent's office in April 1992 and heard the testimony given by the detectives and the DPR investigator. Based on the photographs and testimony, he opined that by respondent having "dirty or rusty" instruments throughout the office, and by failing to repair "wet, leaky walls", respondent had maintained his office in an unsanitary condition. This is because moisture and bacteria are easily carried from one room to another by the ventilation system, drills and compressed air from vacuums. Further, dirty or used instruments left unattended have the potential for injuring employees and luring bugs and rodents onto the premises. Accordingly, it is found that the office was maintained in an unsanitary condition during the July 7, 1992, inspection. Operating a dental office below acceptable standards During their inspection of the premises on July 7, 1992, the detectives did not find any patient records for "Nikki Lewis". Indeed, the only records found were file cards, and these were in disarray. By failing to maintain complete patient records and good sanitary conditions, writing a prescription for a ficticious patient, and using what appeared to be substandard materials or equipment, petitioner's expert opined that respondent was operating a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community. This opinion has been accepted by the undersigned. Adequacy of written records Since the detectives could find no records of "Nikki Lewis" during their search of the premises on July 7, 1992, it can be reasonably inferred that none were maintained for this patient. As to patient S. H. S., her records were offered into evidence but are partially illegible. Even so, there are no entries in the records concerning the six prescriptions given to the patient between July 30 and October 14, 1991, nor for the valium prescription which respondent says he gave her in May 1991. As to those seven prescriptions, and the ones given to "Nikki Lewis", it is found that the records did not justify the course of treatment of those patients. Mitigation After the execution of the search warrant, respondent and his office manager were arrested on July 8, 1992. On January 28, 1993, all charges were dropped against them in return for respondent agreeing not to practice dentistry for eighteen months retroactive to his date of arrest and to never prescribe any medication in the future. Accordingly, by the terms of this agreement, respondent cannot practice dentistry until on or about January 8, 1994, and he will never again be able to prescribe "medications." Although not stated on the record, exhibit 17 suggests that respondent's license to practice dentistry was suspended by the Board on the date of his arrest and will remain suspended pending the outcome of this proceeding. Except for these offenses, respondent has never been disciplined by the Board during his lengthy tenure as a dentist. Further, the matter of his competence is not in issue. Respondent has not practiced dentistry since this matter arose, and he has been financially devastated to the extent he was unable to hire counsel to represent him in this proceeding. The practice of dentistry is respondent's only livelihood. In recent years, respondent's practice has been restricted to a limited area (extractions and dentures), and he has focused on serving the lower-income, uninsurable segment of the community, or in respondent's words, "the bottom of the barrel" type of dental patients. He denies he ran a "prescription mill" as alleged in the complaint, and this is partially confirmed by entries in S. H. S.'s records, which show respondent would not give her a prescription on several occasions unless she visited the office, and his twice refusing to write a prescription for "Nikki Lewis" without an office visit. It should also be noted that respondent assisted the Jacksonville Sheriff's Office in having S. H. S. arrested for fraudulently obtaining drugs. As to the unsanitary conditions in his office, respondent pointed out that he used a Pelton autoclave on a daily basis to sterilize all instruments. He also says that Dr. Holloway (the lessor) refused to make any repairs and he (respondent) had insufficient funds to correct any of the building's deficiencies. Further, it may be inferred that financial limitations prevented respondent from upgrading the old equipment leased from Dr. Holloway. As to his failure to obtain a current DEA license, respondent acknowledges that the license had expired through inadvertence, but he instructed his office manager to renew it after the DPR investigator brought this to his attention. For some reason she placed the money order and application in a file drawer and neglected to sent them to the DEA regional office in Miami. While conceding he did not run an "ivory-tower practice", respondent says his clinic was providing a low-cost service to members of the public who could not afford expensive dental treatment. Finally, he recognizes that he may never again be able to practice dentistry on his own, but he does wish to practice in some capacity in the future, perhaps in an institution under another dentist's direct supervision.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a final order finding respondent guilty of the violations set forth in paragraphs 33 and 34, dismissing the charges in Count I, and suspending respondent's license for one year to be followed by five years' probation under such conditions as the Board deems to be appropriate. DONE AND ENTERED this 10th day of June, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 10th day of June, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7363 Petitioner: Partially adopted in finding of fact 1. Partially adopted in findings of fact 4 and 5. Partially adopted in finding of fact 5. Partially adopted in finding of fact 23. 5-6. Partially adopted in finding of fact 8. 7. Partially adopted in findings of fact 8-12. 8-10. Partially adopted in finding of fact 13. 11-13. Rejected as not being based on credible testimony. Partially adopted in finding of fact 14. Rejected as not being based on credible testimony. 16-19. Partially adopted in finding of fact 16. Partially adopted in finding of fact 17. Partially adopted in finding of fact 18. Partially adopted in finding of fact 19. Partially adopted in findings of fact 14 and 20. Partially adopted in finding of fact 25. Partially adopted in finding of fact 24. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, subordinate, not supported by the more credible evidence, a conclusion of law, or unnecessary. COPIES FURNISHED: William Buckhalt, Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Albert Peacock, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dr. Morley F. Vail 2471 Sage Court Middleburg, FL 32068
Findings Of Fact At all times pertinent to the issues herein either the Florida Department of Health and Rehabilitative Services, (Department), or the Florida Agency for Health Care Administration, (Agency), its successor agency, operated the Medicaid Program in Florida, a state and federally funded program to provide medical services to indigent and eligible individuals, including children, in Florida. Petitioner, Neonatology Associates, Inc., (NAI), is a provider to the Medicaid Program of the State of Florida, and is located in St. Petersburg, Florida. Its Medicaid provider number is 067920-01. It has been a Medicaid provider for approximately thirty years. Medicaid and Children's Medical Services (CMS) were, at one time, both separate components of the Department of Health and Rehabilitative Services. On July 1, 1993, responsibility for Medicaid was assigned to the Agency for Health Care Administration. Medicaid, and its fiscal agent, FMMIS, are not now and never have been a part of either Children's Medical Services or Regional Perinatal Intensive Care Center (RPICC) and neither CMS nor RPICC have ever been a part of Medicaid or its fiscal agent. RPICC serves only peripherally to Medicaid as a claims transmittal agency or billing agent. That relationship was formalized by a contract which is considered by FMMIS as a billing agent contract. The parties stipulated prior to the hearing that the medical services, which are represented by Petitioner to have been performed were actually performed and rendered, and that all of the patients for the disputed claims are assumed to be Medicaid eligible. The parties stipulated at the hearing that the five claims were submitted by Petitioner to RPICC in a timely manner; that the five claims were received by RPICC within a twelve month period from the date of service; that there was a problem at RPICC which precluded the transmittal of these five claims in a timely manner to the Florida Medicaid Management Information System, (FMMIS), the office with which they were to be filed for payment; and that there was communication by telephone and in person between officials of Petitioner, RPICC, and the Department/Agency, (CMS), in an effort to resolve the filing difficulty. These claims relate to five patients, M.H., M.C., C.J., B.A. and R.W. Claims which are not received by Medicaid or its fiscal agent within twelve months of service may not be paid pursuant to law described in the trade as the "twelve month rule." The five claims in issue here were transmitted electronically to RPICC by NAI's agent, Ms. Chandler, the RPICC billing clerk at All Children's Hospital, where the service was rendered, for subsequent re- transmittal by RPICC to FMMIS. This procedure is authorized by the Agency. However, due to technical problems not further identified, the claims were never received by FMMIS. RPICC, a part of the Department's Children's Medical Services, and operated by the University of Florida, does not adjudicate claims but merely gathers and analyzes neonatology data for statistical reporting. FMMIS, Medicaid's fiscal agent since July 1, 1993, is operated by a private vendor. The contract between Medicaid and the University under which RPICC data services are provided, and that between NAI and Medicaid, which provides for medical services, both contain the same "boiler plate" clauses. Both NAI and RPICC transmit electronic claims to Medicaid for adjudication, but neither is a party of or agent of Medicaid. FMMIS is Medicaid's agent for payment. RPICC data processing services charges are paid to the University of Florida by Children's Medical Services under their contract. Medicaid pays only for the actual medical care provided to indigent mothers and their sick newborn children. NAI has a contract with Medicaid. RPICC has a contract with Medicaid. Children's Medical Services has a contract with RPICC at the University of Florida. These are the only formal agreements involved in this situation. The contract between NAI and Medicaid provides that NAI will submit Medicaid claims "in accordance with program policies." Medicaid policy provides that receipt of electronic claims submission to Medicaid or its fiscal agent, FMMIS, takes place only upon acceptance and confirmation by FMMIS. Acceptance occurs when each claim is assigned its own identification number. Medicaid policy also provides that submittal of a claim to RPICC does not constitute receipt of the claim by Medicaid or its fiscal agent, and submittal of a claim to RPICC does not toll the running of time accounted for under the twelve month rule. The relationship between Medicaid and the RPICC data center may be likened to that of RPICC's being a billing transmittal agent for FMMIS. RPICC does not process claims submitted to it but merely forwards those it receives to the fiscal agent which operates the FMMIS. Medicaid, by letter from Mr. Thomas Arnold, dated March 5, 1990, authorized FMMIS to receive Medicaid claims from RPICC. That letter does no more than offer providers an option to have RPICC bill the fiscal agent for them, thereby creating a "billing agent" status for RPICC. It does not state that submittal of claims by providers to RPICC constitutes filing a claim with Medicaid or the fiscal agent so as to toll the running of the twelve months limit. The Medicaid Physician Provider Handbook made available to all providers expressly states that all claim inquiries be made to Consultec, a private computer services provider. Both Mr. Blasioli and the Agency's regional claims representative noted that NAI did not contact Consultec regarding the computer problems regarding the instant claims prior to the expiration of the twelve month claim filing limit. Neither did NAI make use of RPICC's internal claims tracking system during the period in issue. The evidence establishes that NAI experienced difficulty in submitting the five claims in issue. Nonetheless, within a month of being employed by NAI, its billing administrator advised Medicaid that he had addressed the problem and had established procedures with RPICC's data center to prevent future claims from exceeding the twelve month limit. NAI's difficulty with the five claims in issue were first brought to the attention of Medicaid personnel after the twelve month filing limit had expired. Though the claims in issue here were submitted electronically, NAI could have submitted these claims directly to FMMIS by traditional paper claim, omitting the RPICC channel and its potential for technical problems. It chose not to do so. The "twelve month rule" provides for exceptions which are expressly limited to those claims which are delayed by either legal action or lack of proof of recipient eligibility. An additional exception is afforded claims delayed by "crossovers" with Medicare. The rule does not provide for extension of time due to computer system error unless such error relates to processing errors which arise subsequent to Medicaid's acknowledgment of claim receipt. In essence, to justify an exception to the twelve month rule, the computer error must be Medicaid's. The Medicaid program cannot deviate from federally imposed requirements. Should it do so, it faces the potential loss of federal expenditure reimbursement which constitutes fifty-five percent of all money spent by Florida in its operation of the Medicaid program. The program processes 100,000,000 claims annually from more than 60,000 providers, paying out approximately $6,700,000,000 each year. Even minor exceptions to the rules governing the adjudication process could have extensive impact on and consequences to the program and the benefits it imparts to the indigent health care recipients it serves.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying as untimely Petitioner's five claims in issue. DONE and ENTERED this 22nd day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 22nd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3049 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. - 3. Accepted and incorporated herein. First sentence accepted. Balance accepted as definitions, not Findings of Fact. - 12. Accepted. Merely a restatement of testimony in support of Petitioner's position. Not a proper Finding of Fact. Accepted. Rejected as no more than a comment on the evidence and a statement of party position. - 20. Accepted as a statement of position, but rejected as probative of any material factual issue. 21. - 24. Accepted. Accepted. & 27. Not Findings of Fact but citations of statute. 28. & 29. Accepted. Not Findings of fact but cites of agency rule. A restatement of Handbook matter. Accepted. - 35. Accepted. Accepted but non-probative argument. Rejected as contra to the weight of the evidence. - 43. Accepted. Not a Finding of Fact but a restatement of testimony. - 49. Accepted. 50. & 51. Accepted and incorporated herein. 52. - 55. Accepted. 56. - 58. Accepted. 59. & 61. Accepted, but no evidence exists that RPICC's actions constitute receipt of the claim. The evidence of record better suggests that RPICC receives information from providers based upon which it acts as billing agent for the provider and it remains incumbent upon the provider to insure it gets the pertinent information to RPICC in sufficient time for the claim to be billed within the tweleve month constrains. 62. - 65. Rejected as contra to the better evidence of record. Respondent's Proposed Findings of Fact. 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the issue. - 7. Accepted and incorporated herein. 8. & 9. Accepted. 10. - 14. Accepted. Accepted. - 18. Accepted. 19. & 20. Accepted and incorporated herein. Not a Finding of Fact but a restatement of and comment on testimony. & 23. Accepted and incorporated herein. 24. Accepted but not probative of any material issue of issue of fact. COPIES FURNISHED: Frank P. Rainer, Esquire Ruden, McClosky, Smith, Schuster, and Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32310 Mark S. Thomas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3407 Tallahassee, Florida 32308 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue in this case is whether the Florida Insurance Commissioner should discipline the Respondent, Brian Craig Parker, for alleged violations of the Insurance Code.
Findings Of Fact The Respondent, Brian Craig Parker, is a licensed health and life insurance agent. He had a contract with Denticare appointing him to act as Denticare's agent in selling prepaid dental insurance. On or about March 19, 1992, the Respondent, acting as an insurance agent, met with Christine Gamse and accepted her application for Denticare coverage and her check in the amount of $75, representing a $60 premium, plus a $15 "policy fee." The Respondent never submitted Gamse's Denticare application or premium to the insurer. In May, 1992, Gamse complained to Denticare that she still was not covered. Denticare confirmed that Gamse was not covered and offered to telephone the Respondent. When contacted by Denticare, the Respondent stated that he thought he had sent the application and premium to Denticare but that he had been very busy and that his recall was sketchy. Denticare had Gamse reapply directly to Denticare. On or about April 3, 1992, the Respondent, acting as an insurance agent, met with Donald Naegele for the purpose of presenting two dental insurance policies. Naegele decided to apply for Denticare dental insurance. The Respondent advised Naegele to write the Respondent a check in the amount of $104 to accompany Naegele's insurance application, representing a $89 premium, plus a $15 "policy fee." The Respondent told Naegele that he would submit the application by April 20 and that Naegele's coverage would be effective on May 1, 1992. The Respondent negotiated Naegele's check on or about April 7, 1992, but he never submitted Naegele's Denticare application or premium to the insurer. On or about May 1, 1992, Naegele attempted to use Denticare to pay for dental services and was informed that he was not covered by Denticare. He telephoned the Respondent several times and left messages on an answering machine but none were returned. He then telephoned Denticare, and it was confirmed that Naegele was not covered. Denticare offered to telephone the Respondent to resolve the matter. Soon after telephoning Denticare, Naegele got a telephone call from the Respondent, who offered to refund Naegele's $104. Within a few days, Naegele received the Respondent's check for the refund. Under the Respondent's agency contract with Denticare, the Respondent was not authorized to charge a policy fee. The Respondent's commission for Denticare policies was to be paid by Denticare out of the initial premium. Although the contract allowed the agent to ask for additional compensation, the Respondent did not do so, and Denticare would not have allowed him to charge a $15 policy fee. Under the Respondent's contract with Denticare, the Respondent was to promptly submit applications and premiums received from insureds. If Denticare received an application and premium by the 20th of the month, coverage would be effective on the 1st of the following month. If the Respondent had timely submitted their applications and premiums, both Gamse and Naegele would have had coverage by May 1, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Insurance Commissioner enter a final order revoking the license of the Respondent, Brian Craig Parker, to act as a health or life insurance agent in the State of Florida. RECOMMENDED this 23rd day of February, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1994. COPIES FURNISHED: Joseph D. Mandt, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Brian Craig Parker 4004 Bainwood Court Tampa, Florida 33614 Brian Craig Parker 15713 Woodcock Place Tampa, Florida 33624 Tom Gallagher State Treasurer & Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact The Respondent, at all times material hereto, has been a dentist licensed in the State of Florida, holding license number DN 0005029. He is engaged in the practice of dentistry in Pensacola, specializing in orthodontics. The Petitioner is an agency of the State of Florida charged with regulating the licensure status, admission to practice and practice standards in the State of Florida. During the period from September 1980 until July 1981, Ms. Wendy Ling became a patient of the Respondent and went to the Respondent's office on a number of occasions during that period of time to receive dental treatment. During the course of her dental treatment involving installation, fitting and maintenance of braces, she became somewhat dissatisfied with the Respondent's services, claiming that he should have spent more time personally with her when she was in his office. Because of her dissatisfaction, she sought the services of another orthodontist, Dr. Trum. When she left the care of Dr. Tarwick and sought the services of Dr. Trum, she owed Dr. Tarwick $140 for services already rendered her for dental care. When Dr. Trum assumed responsibility for her care, he informed her that he would need copies of her dental records. Shortly thereafter, either Dr. Trum, a person in his office or Ms. Ling called Dr. Tarwick's office to seek the records. Dr. Tarwick's financial secretary responded that $140 was still owed on her bill from Dr. Tarwick. Dr. Tarwick refused to forward her records until her bill was paid. She continued to refuse to pay her outstanding bill and the doctor filed a civil action against her in county court and prevailed. The court found that she owed the sum in question but the Respondent accorded she and her husband, a doctor, "professional courtesy" and agreed to discharge the debt for the sum of $80. During the time when he had refused to forward her records prior to her paying her outstanding bill, she complained to the Petitioner regarding this situation. A representative of the Department of Professional Regulation contacted the Respondent and informed him of the legal requirement that he forward records regardless of whether an outstanding bill was due. The Respondent professed ignorance of that provision of the law, was apologetic and hastened to forward her records contending, as he did at the hearing, that he was unaware that it was illegal to withhold forwarding of the dental records pending payment of an outstanding bill for services rendered. Upon forwarding the record to Ms. Ling's new orthodontist, the Respondent charged her a duplication fee of $50 for this service. This resulted in the other count in the Administrative Complaint regarding the reasonableness of the $50 fee for duplication and forwarding of records. The Respondent established without question at the hearing that it cost in excess of $110 to duplicate such records, excluding the Respondent's own time involved. The records are not merely paper reports that must be xeroxed, they include molds and casts of the complaining witness' mouth and/or gums and teeth. Duplication of all these portions of her records is necessary because the professional association, to which the Respondent must belong, requires that he keep a complete set of records for all patients. It was thus unequivocally established that the Respondent's fee for this duplication and record forwarding was less than half of what it actually cost his office to perform. The Respondent quite candidly expressed to the Department of Professional Regulation his ignorance of the legal provision that he not withhold forwarding of records pending payment of outstanding fees and clearly informed the Department, before the Administrative Complaint was ever filed, that he did not dispute that allegation and that he would move quickly to correct the mistake, which he did. Thus, the Respondent went to the hearing in the belief that the only dispute with the Petitioner was the question of the reasonableness of the duplication and forwarding fee for the records. The Petitioner was on notice that the Respondent did not dispute the charge in Count I. At the hearing, however, the Petitioner voluntarily dismissed the count concerning the question of the reasonableness of the duplication and forwarding fee (paragraphs 12 and 13 of Count II of the Administrative Complaint). It is thus obvious that the only true dispute concerning which the hearing was convened was the question of the reasonableness of the duplication and forwarding fee since the department was already aware that the Respondent did not contest Count I concerning the issue of withholding the transfer of patient records pending payment of outstanding fees for services rendered. The Petitioner, however, did not voluntarily dismiss Count II and thus obviate the necessity of a hearing even though it was informed of Respondent's basis for the fee and the necessity for a large expenditure to bring in Witness Benz, who established its reasonableness, and even though it arrived at the decision to dismiss the charge in Count II some days prior to hearing. Therefore, believing that the department was proceeding against him in good faith on the question of reasonableness of the duplication fee, the Respondent hired an accountant to do a cost study of such duplication efforts by his office, whereupon aimed at a figure in excess of $110 for the performance of that service. The Respondent thus expended a substantial amount of money ($1,000) in paying the expert witness to prepare for, attend and testify at the hearing and was not informed by the department that it had chosen prior to the hearing to voluntarily dismiss that count until the convening of the hearing with the previously necessary witness already present. Both the testimony of Dr. Tarwick and the President of the Florida Association of Orthodontists established that it is customary in the profession to withhold duplication and transference of patient records until all fees have been paid and both expressed surprise that this might be illegal. Letters from other orthodontists in other cities were admitted by agreement establishing that this is indeed customary in the profession and not merely an isolated example of aberrant behavior by Dr. Tarwick. Further, it was established by Dr. Tarwick that, given that Ms. Ling's treatment contract ran through October 1982, the slight delay caused in transferring her records to her new doctor, Dr. Trum, caused no adverse effects on her course of treatment and the correction of her dental problem. Dr. Tarwick was unaware that he was violating the statute under which he was charged and did not intentionally do so. In all his conversations with counsel for the department, Mr. Carpino, the only dispute discussed between them concerned the $50 fee. It was the Respondent's belief that he had fully and early informed the department that he did not dispute the charge concerning the withholding of dental records in return for the payment of the outstanding fee.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence in the record, it is, therefore RECOMMENDED: That, in view of the technical, isolated and inadvertent violation of the above authority by the Respondent, which he corrected as soon as he became aware of the violation, a minimal penalty consisting of a private written reprimand should be imposed. DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of December, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Edward Moore, Jr., Esquire Sherrill, Moore and Hill Post Office Box 1792 Pensacola, Florida 32598 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent, Robert John Roberts, for violating Section 466.028(1)(m) and (y), Fla. Stat. (1991), by failing to meet minimum standards of performance and by failing to keep adequate dental records, as alleged in the Administrative Complaint, DPR Case No. 91-11243.
Findings Of Fact The Respondent, Robert John Roberts, D.D.S., is a Florida licensed dentist, having been issued Board of Dentistry license number DN 0012197. A patient who will be identified by her initials, M. N., saw the Respondent on February 22, 1991, about having crowns replaced. The Respondent's dental records on the patient's medical history and his record of the clinical oral examination of the patient were inadequate. In addition, the records contained no diagnosis and treatment plan. In total, the records do not adequately explain what the Respondent planned to do, and why. There apparently was some confusion about the number of lower crowns to be replaced. The patient apparently first requested, and understood that she was having, six lower crowns replaced, three on either side (teeth 22, 23, 24, 25, 26 and 27.) But two of the six, one on either side (22 and 27), were splinted to the crown on the tooth next to it (21 and 28, respectively). At some point, the Respondent apparently decided not to attempt to split the splints, but rather decided to replace the crowns on all eight teeth. The Respondent's medical records do not adequately explain when this decision was made, or why, or whether it was explained to the patient. The patient remains confused as to why more than six lower crowns were replaced. The patient wanted the crowns replaced by June 1, 1991, so that the work would be covered by her existing insurance. The Respondent required $1,700 to begin the work. Work began on May 6, 1991. Temporary crowns were cemented on May 23, 1991. Although the patient's dental work was not unusually difficult or complicated, unusual problems developed in making and fitting the permanent crowns. Several efforts had to be made to attempt to complete the work. On occasion, the permanent crowns did not fit. On other occasions, they broke. The patient's temporary crowns had to be removed and replaced several times. Between May 6 and August 14, 1991, the patient had to be seen nine times. On August 14, 1991, a day on which the patient was scheduled to return to the Respondent's office to finally have the permanent crowns fitted and cemented, the Respondent's office called to cancel the appointment because the Respondent was not in the office. At the end of her patience, M. N. asked for her money back. The Respondent's office refused, suggesting other alternatives that were not acceptable to the patient. Instead, in September, 1991, the patient made an appointment with another dentist who had to start over at a cost of $4,000, in addition to the $1,700 the patient already had paid to the Respondent. Normally, permanent crowns are made, fitted and cemented within six weeks after the patient gets temporary crowns. Nothing in the Respondent's records explains or justifies the delay in completing the work for this patient. The evidence is that the Respondent's performance in the treatment given to the patient, M. N., failed to meet the minimum standards when measured against generally prevailing peer performance. Contrary to the Department's allegations, the X rays taken by the Respondent before treating the patient, M. N., were not of poor quality. The Department's allegation was based on the opinion of their expert, who was given poor copies of the X rays the Respondent took and who was given to understand that the copies he was sent were indicative of the quality of the X rays the Respondent took.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order: (1) finding the Respondent, Robert John Roberts, guilty of violating Section 466.028(1)(m) and (y), Fla. Stat. (1991); (2) reprimanding the Respondent; (3) fining the Respondent $3,000; and (4) placing the Respondent on probation for two years, conditioned upon the successful completion of thirty hours of continuing education in fixed prosthetics and fifteen hours in risk management, and upon payment of the $3,000 fine. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Robert John Roberts, D.D.S. 172 Wickford Street East Safety Harbor, Florida 34695 William Buckhalt Executive Director Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
