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 presented for decision herein is whether or not Respondent's license should be disciplined based on conduct, set forth hereinafter in detail as contained in an Administrative Complaint filed herein dated February 14, 1986. INTRODUCTORY STATEMENT By Administrative Complaint dated February 14, 1986, Petitioner alleged that Respondent, while a licensed physician in the State of Florida, presigned blank prescriptions which prescriptions were later completed by one Dr. Jorge Horstmann in violation of Section 458.331(1),(aa), Florida Statutes. The complaint also alleged that Respondent never examined the alleged patient, Vivian Perez, who was an undercover operative, nor did the Respondent maintain any patient records for the treatment and thereby violated Section 458.331(1)(q), Florida Statutes, by failing to keep written medical records justifying the course of treatment and by prescribing a legend drug other than in the course of the physician's professional practice; that Respondent committed gross or repeated malpractice or failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances in violation of Section 458.331(1)(t), Florida Statutes. The Administrative Complaint further alleged that Respondent billed medicaid for various visits for the undercover operative, as well as fictitious children, and made or filed reports with Medicaid which the Respondent knew to be false and thereby failed to perform statutory or legal obligations placed upon a licensed physician in violation of Sections 458.331(1)(1) and 817.234, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received during the hearing and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Alfonso Rodriguez-Cuellar is, and has been at times material hereto, a licensed physician in the State of Florida having been issued license number MME002856. During June, 1983, Respondent shared office space with Dr. Jorge Horstmann who was at the time, not a licensed medicaid provider. Respondent was licensed as a medicaid provider during times material and was so licensed during June, 1983. During June, 1983, an investigation was undertaken by the State of Florida Auditor General's Office and as a result of that investigation, Special Agent Vivian Perez visited Respondent's office and requested to be attended by Dr. Horstmann. At the time, Special Agent Perez presented the receptionist, Emerson Figeuroa, her Medicaid card listing herself and (3) fictitious children as medicaid recipients. During that visit, four (4) Medicaid files were prepared by office staff and Special Agent Perez was seen by a person who identified himself as Dr. Horstmann. Dr. Horstmann appeared and testified in these proceedings and acknowledged that he, in fact, treated Special Agent Perez. Dr. Horstmann did not examine Agent Perez. Dr. Horstmann was carrying a prescription pad while he attended to Agent Perez and Agent Perez observed Dr. Horstmann complete prescriptions from the pad with the exception of the signatures. (Petitioner's Composite Exhibit 1). Dr. Horstmann left the room where he was attending Agent Perez. When he returned, they were signed by Respondent. Agent Perez was then given the prescriptions and she took them to a pharmacy and filled them by purchasing non- pharmaceutical items. (TR 89-92). Emerson Figeuroa was employed by Respondent as a medical assistant and receptionist since approximately 1982. Ms. Figeuroa denied that Respondent presigned prescriptions for Dr. Horstmann and contends that records are maintained for all of Respondent's patients. Ms. Figeuroa recognized Respondent's signature on two prescriptions received in evidence as being Respondent's signature. (Respondent's Exhibit 1 and 2). At the same time, Ms. Figeuroa denied that Respondent's signature appeared on prescriptions introduced which were the prescriptions given to Agent Perez. Hugh Fitzpatrick, a medical investigator for Petitioner, interviewed Respondent during June of 1983. Investigator Fitzpatrick's main concern was whether Respondent was presigning prescriptions for Dr. Horstmann. Investigator Fitzpatrick inquired of Respondent regarding that claim and Respondent admitted that he signed the prescriptions given to Agent Perez for Dr. Horstmann; that he signed the prescriptions as a friend and that he knew that Dr. Horstmann had been licensed and simply had not been provided with the documentation reflective of the fact that he (Dr. Horstmann) had been licensed as a Medicaid Provider. Respondent testified on his own behalf and openly admitted that the signatures on the prescriptions provided to Agent Perez were his although he questioned the "MD" next to his signature. (TR 58-60). Respondent also conceded that he never treated a patient by the name of Vivian Toledo (a/k/a Vivian Perez); he had no medical records for Toledo (Perez) or her children and acknowledged that he medically treat a large volume of patients, a great majority of which are Medicaid recipients. Respondent conceded that he received a check from Medicaid for $1,900 reflecting payment for the medical treatment of a large number of medicaid patients. Respondent conceded that although he signed the medicaid forms, the forms are prepared by other office personnel. Respondent usually does not verify the names of the individuals on the list to ascertain if he, in fact, treated each patient listed before he executes the form requesting payment from medicaid. (TR 64 and 86). Respondent is duty bound to ensure that he only bills medicaid for patients that he has, in fact, treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that Respondent's license be suspended for a period of (30) days. It is further recommended that the Board impose an administrative fine against Respondent in the amount ($2,000). Recommended this 10th day of February, 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 10th day of February, 1987. COPIES FURNISHED: Joel S. Fass, Esquire Colodny, Fass & Talenfeld, P.A. 626 N. E 124 Street North Miami, Florida 33161 Franz A. Arango, Esquire 1999 S. W. 27th Avenue Miami, Florida 33145 Dorothy Faircloth, Executive Director 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent's dental license should be disciplined and, if so, what penalties should be imposed.
Findings Of Fact Respondent is a licensed dentist with the State of Florida, holding License No. DN 9800. In 1999, Respondent decided to move his practice from South Florida to Tallahassee, Florida. In preparation for the move, Respondent investigated the need for Medicaid dental services in the Tallahassee area. Respondent discovered that Medicaid recipients were a significantly under-served population in the Tallahassee area for the availability of general dental services. Respondent concluded that the number of Medicaid recipients in need of dental services would support a dental office in Tallahassee. Medicaid is a federal program which funnels money to the states for payment of the cost of health care to the needy. In order to obtain the federal money, a state must establish a Medicaid Program which meets federal requirements. Florida has established such a program. It is administered by the Department of Health. Around September 1999, Respondent located appropriate office space in Tallahassee. Over the next few months, Respondent remodeled the office space on the weekends while maintaining his dental practice in South Florida. Eventually, Respondent sold his practice in South Florida. In January 2000, Respondent opened his office, Medident Center, Inc. (Medident), in Tallahassee. Respondent was the president and owner of Medident. In an effort to let the public, medical and dental community know that his office was open and would primarily serve Medicaid recipients, Respondent contacted local pediatricians, local medical and dental associations, public health and welfare agencies, and local housing authorities. Respondent also advertised in the Thrifty Nickel advertising publication. After opening his office, Respondent hired a van driver to go to local housing neighborhoods and contact people in those areas in regards to Respondent's dental practice. Respondent got the information of where to send the van from an elderly woman who was part of the local housing authority and wanted to help Respondent supply this service. This elderly woman often road in the van with the driver to the local housing neighborhoods. Transportation was offered to the people needing such service. The driver of the van would distribute a flyer to residents or persons she found in the housing project. The flyers advertised free transportation for groups of eight to ten patients or groups of neighbors and asked that the person call for information. In the flyers, Respondent stated he provided dental services to children (3 to 20 years old). The flyer also welcomed Medicaid and private patients, indicating no other insurance would be accepted. The advertisement stated: FREE TRANSPORTATION FOR FAMILIES OF 8 TO 10 PATIENTS OR GROUP OF NEIGHBORS. CALL FOR INFORMATION ADOLFO R DE CESPEDES DDS MEDIDENT CENTER INC. WELCOME MEDICAID NEW PATIENTS AND PRIVATE PATIENTS (NO OTHER INSURANCE ACCEPTED) 1391 TIMBERLANE RD #101 TALLAHASSEE FL 32312 (BETWEEN GILCREST SCHOOL AND MARKET SQUARE) EXIT 30 GO NORTH ON THOMASVILLE, FIRST LIGHT LEFT. (850) 894-5044 (850) 894-5642 Respondent, through Medident, provided general dental services to Medicaid recipients for which Medicaid paid. Respondent's Medicaid provider number was 0717282. In essence, the Medicaid program establishes a flat rate of compensation for delivery of various medical services, in this case, dental services to a Medicaid qualified patient. The rate of compensation is generally a flat fee for a certain type of dental service or category of treatment, that is, fillings involving one tooth surface; fillings involving two or more tooth surfaces; surgical extractions; and, application of sealants to the teeth, etc. A Medicaid provider bills Medicaid for dental services by a system of billing codes. These codes classify each dental service and establish a price for that service. As a general rule, a Medicaid provider is entitled to be paid after dental services are rendered or delivered. The average Medicaid dental patient has gross decay when compared to the general dental population. The Medicaid population often requires more dental treatment than the general dental population. Beginning in February 2000, Respondent was the subject of an investigation by the Medicaid Fraud Control Unit of the Attorney General's Office. The investigation stemmed from a complaint by a parent whose child had been one of Respondent's patients in South Florida and two inquiries from investigators from AHCA involving the advertisements used by Respondent to advertise his dental practice and solicit Medicaid recipients. The complaining parent in South Florida could not be located. However, four other patient names were supplied to the Medicaid Fraud Investigation Unit by AHCA. These patients were C.W., C.T., K.M. and T.F. These patients were examined by Dr. Douglas W. Loveless, D.D.S., a dental consultant and dental expert for the Department. The examinations took place under good conditions at the local health department dental facility on March 15, 2000. After the initial group of four patients, 15 patients' names were supplied by AHCA to the Medicaid Fraud Investigation Unit. They were examined by Dr. Loveless on May 4, 2000, in a room at Riley Elementary School. The examination conditions at the school were good. Later, ten other patients' names were supplied by AHCA to the Medicaid Fraud Investigation Unit. These patients were examined by Dr. Loveless under good conditions at the local health department dental facility on June 20, 2000. In general, Dr. Loveless' exams revealed that Dr. de Cespedes billed Medicaid for dental work which was not performed. The Department also had Dr. Thomas Eugene Shields, II, D.D.S., and Dr. Stanley Sheppard, D.D.S., clinically examine the patients examined by Dr. Loveless. These examinations occurred under good conditions in Dr. Sheppard's dental office. In general, the Shield and Sheppard examinations corroborated the results of the Loveless examinations. Respondent asked Dr. Fish, D.D.S., to conduct a separate independent examination of some of the patients included in the Amended Administrative Complaint. Dr. Fish clinically examined some of the patients that Dr. Loveless examined. The patients were examined in a dental office. In general, Dr. Fish's examinations disagreed with the other three expert examinations. However, the specific details of Dr. Fish's examinations could not be determined because Dr. Fish refused to attend the hearing in Tallahassee falsely indicating that he could not book a flight to Tallahassee after the hearing had been continued one time for the same reason to enable Dr. Fish to book such a flight. In lieu of live testimony, Respondent was forced to introduce the deposition of Dr. Fish which had been taken by the Department. Upon analysis, Dr. Fish's deposition proved to be of little use due to the importance of viewing X-rays and pictures in this case and referring to specific areas on those X-rays and pictures. From the deposition, it was impossible to determine which areas of the X-rays or pictures Dr. Fish referred to as showing the dental work Respondent claimed to have performed since Dr. Fish's referring gestures could not be seen, and the description of the area was inadequate to isolate the areas to which his gestures referred. Therefore, Dr. Fish's deposition is not supportive of Respondent's claim, which claim was not demonstrated by the evidence that he performed the work for which he had billed Medicaid, and that the fillings were hard to locate since they were generally pinpoint, one-surface fillings which could not be readily found or seen on an X-ray or picture. Respondent had no independent recollection of the services he allegedly rendered to the patients involved in this case but relies on his records of treatment for each patient. It is simplest to visualize the surfaces of a tooth by visualizing a closed box. It has a top with four sides. These "surfaces" connect to an adjoining surface at some point or plane. A particular surface is referred to by that surface's location inside the mouth. The surfaces are occlusal, mesial, distal, buccal, and lingual. The Department's doctors reported their exam findings on a form developed for such a purpose. Common notations used by each dentist were as follows: (a) the letter "O" was used to signify the occlusal surface of a tooth which is top of the tooth; (b) the letter "M" was used to signify the mesial surface of a tooth which is the part of the tooth that faces the front; (c) the letter "D" was used to signify the distal surface of a tooth which is the part of the tooth that faces the back of the mouth; (d) the letter "B" was used to signify the buccal or facial surface of a tooth which is the side of the tooth facing the cheek or face; and, (e) the letter "L" was used to signify the lingual surface of a tooth which is the side of the tooth that faces the tongue. Each doctor also referenced a particular tooth according to a standard numbering or lettering system where each tooth is given a number or letter. Baby teeth are lettered and adult teeth are numbered. A diagram showing this numbering/lettering system is contained in Appendix I to this Recommended Order. As indicated earlier, the Amended Administrative Complaint involves 21 separate patients. For purposes of clarity the facts and circumstances surrounding each patient, the counts related to that patient and any violations related to that patient will be discussed individually. No alleged violations of Chapter 466, Florida Statutes, were established by the evidence unless it is specifically noted below. PATIENT S.T. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of one-surface resin restorations on the occlusal surface of teeth A, J and 19, the lingual surface of tooth J, and the buccal surface of tooth 19. Respondent's record of treatment on Patient S.T. reflects that on January 26, 2000, Respondent allegedly restored the occlusal surface of teeth A, J, and 19; the lingual surface of tooth J; and the buccal surface of tooth 19. All the restorations were one-surface composite resin restorations. Respondent was paid $155.00 or $31.00 apiece for these restorations by Medicaid. Examinations by the Department's three experts revealed that there were no restorations present on any of the surfaces claimed to have been restored by Respondent. Moreover, comparison of the pre- and post-examination X-rays of Patient S.T.'s teeth showed decay still present on the mesial-occlusal surface of tooth J, further indicating no restoration had been performed by the Respondent. All three experts found only a sealant had been placed on tooth 19. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient S.T., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT T.F. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the mesial-buccal surface of tooth 8; the restoration of the distal-buccal surface of tooth 8; the restoration of the lingual surface of tooth 14; and the restoration of the lingual surface of tooth 30. Respondent's record of treatment on Patient T.F. reflects that on January 27, 2000, Respondent allegedly restored the mesial-buccal surface of tooth 8; the distal-buccal surface of tooth 8; the lingual surface of tooth 14; and the lingual surface of tooth 30. The restorations were variously one- and two-surface composite resin restorations. Respondent received $206.00 for these restorations. Examinations by the Department's three dental experts revealed no restorations had been performed on teeth 8, 14, and 30. Moreover, T.F.'s mother was present when the work claimed by Respondent was allegedly performed. She only saw Respondent clean T.F.'s teeth during the first visit and pull one of T.F.'s baby teeth during the second visit. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient T.F., filed false reports of service to Medicaid, and gained financially when Respondent was paid for services he did not perform. PATIENT K.M. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment for the restoration of the occlusal surface of teeth 3, 14, A, B, I and K; the restoration of the lingual surface of teeth 3, 14 and A; and the restoration of the buccal surface of tooth K. Respondent's record of treatment on patient K.M. reflects that on February 3, 2000, Respondent allegedly restored the occlusal surface of teeth 3, 14, A, B, I and K; the lingual surface of teeth 3, 14 and A; and the buccal surface of tooth K. Respondent was paid $310.00 for these services. Examinations by the Department's three dental experts found that no restorations as described above had been performed. Tooth B had an existing amalgam restoration. Tooth B had untreated decay. Tooth I also had untreated decay on the mesial and occlusal surface. Such untreated decay indicates no restorations were performed to the decayed surfaces of these teeth. Tooth K had a sealant only, indicating that no restoration was performed. Additionally, the evidence showed that Respondent did not use a drill during Patient K.M.'s dental visit. Respondent fraudulently billed and was paid for services not rendered to Patient K.M., filed false reports of service to Medicaid, and gained financially when he was paid for services he did not perform. PATIENT J.G. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the occlusal surface of teeth A and J; and the restoration of the lingual surface of teeth A and J. Respondent's record of treatment on Patient J.G. reflects that on February 3, 2000, Respondent allegedly restored the occlusal surface of teeth A and J, and the lingual surface of teeth A and J. All of the restorations were one-surface composite resin restorations. Medicaid paid Respondent $124.00 for these procedures. Examinations by the Department's experts found that no restorations had been performed. Moreover, tooth A and J had only sealants on their occlusal surfaces. Respondent fraudulently billed and was paid for services not rendered to Patient J.G., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT C.W. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the lingual surface of teeth 3, 14 and A; the restoration of the buccal surface of teeth 3, 14 and A; the restoration of the occlusal surface of tooth A; the restoration of the mesial-buccal surface of teeth C and D; and the restoration of the distal-buccal surface of teeth C and D. Respondent's record of treatment on patient C.W. reflects that on February 8, 2000, Respondent allegedly restored the lingual surface of teeth 3, 14 and A; the buccal surface of teeth 3, 14 and A; the occlusal surface of tooth A; the mesial- buccal surface of teeth C and D; and the distal-buccal surface of teeth C and D. All of the alleged restorations were one- or two-surface composite resin restorations. Respondent was paid $505.00 by Medicaid for the restorations. Examinations by the Department's experts showed that no restorations had been performed. Additionally, post- procedure radiographs indicated decay present on tooth C. Finally, tooth A, a baby tooth, was ready to exfoliate at the time Respondent billed for the work performed on tooth A. By the time of the follow up examination by the Department's experts on March 2, 2000, the post-operative radiograph showed complete re-absorption of the root of tooth A with only the shell of the clinical crown remaining. Medicaid policy prohibits restoration of a deciduous (baby) tooth if it is likely to exfoliate within six months. Tooth A was likely to exfoliate within six months when Respondent treated Patient C.W. In any event, Respondent fraudulently billed and was paid for services not rendered to Patient C.W., filed false reports of service to Medicaid and gained financially when he was paid for services Respondent did not perform. PATIENT L.C. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the lingual surface of tooth L. Respondent's record of treatment on Patient L.C. reflects that on March 9, 2000, Respondent allegedly restored the lingual surface of tooth L with a composite resin filling. Respondent received $31.00 in payment from Medicaid for the alleged restoration of tooth L. Examinations by the Department's experts showed no restoration present on tooth L. For Patient L.C., Respondent fraudulently billed and was paid for services not rendered to Patient L.C., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT L.B. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for the restoration of the occlusal surface of tooth 30 and the restoration of the lingual surface of tooth 30. Respondent's record of treatment on Patient L.B. reflects that on March 10, 2000, Respondent allegedly restored the occlusal surface of tooth 30 and the lingual surface of tooth 30 with one-surface composite resin fillings. Respondent was paid $62.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations were present. For Patient L.B., Respondent fraudulently billed for services not rendered to Patient L.B., filed false reports of service to Medicaid and gained financially when Respondent was paid for services he did not perform. PATIENT S.C. #1 Count I of the Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of placing a sealant on teeth 2 and 15, the restoration of the buccal surface of teeth 3 and 14, and the restoration of the lingual surface of teeth 19 and 30. Respondent's record of treatment on Patient S.C. #1 reflects that on March 10, 2000, Respondent allegedly placed a sealant on teeth 2 and 15, restored the buccal surface of teeth 3 and 14, and the lingual surface of teeth 19 and 30. Respondent was paid $150.00 by Medicaid for these services. Examinations by the Department's experts revealed no restorations or sealants were present on the surfaces declared by Respondent. However, tooth 3 had some sealant material on it, indicating some dental work had been done on S.C. #1's teeth. On the other hand, tooth 15 had occlusal decay indicating no sealant had been placed on the tooth. The clear and convincing evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient S.C. #1, filed false reports of service to Medicaid and gained financially when he was paid for services Respondent did not perform. PATIENT S.C. #2 The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 19, 30, and T; and the restoration of the occlusal surface of tooth 29. Respondent's record of treatment on Patient S.C. #2 reflects that on March 10, 2000, Respondent allegedly restored the lingual surface of teeth 19, 30, and T and the occlusal surface of tooth 29. Respondent was paid $124.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations, as claimed, were present. Importantly, tooth T is the baby tooth that is replaced by tooth 29. Conceivably, tooth T and permanent tooth 29 could be present at the same time with the permanent tooth coming in over or under the baby tooth. It is unclear whether tooth 29 had erupted. However, tooth T was likely to exfoliate within 6 months of the time the patient was seen by Respondent. Therefore, tooth T should not have been treated by Respondent since the tooth would likely be gone within six months. The clear and convincing evidence showed Respondent fraudulently billed and was paid for services not rendered to Patient S.C. #2, filed false reports of service to Medicaid and gained financially when he was paid for services Respondent did not perform. PATIENT S.C. #3 The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the occlusal surface of tooth A; the restoration of the buccal surface of teeth B, I, J and L; the restoration of the distal-buccal surface of teeth D and G; the restoration of the mesial-buccal surface of teeth D and G; and, the restoration of the lingual surface of teeth J and K. Respondent's record of treatment on Patient S.C. #3 reflects that on March 10, 2000, Respondent allegedly restored the occlusal surface of tooth A; the buccal surface of teeth B, I, J and L; the distal-buccal surface of teeth D and G; the mesial-buccal surface of teeth D and G; and, the lingual surface of teeth J and K. Respondent was paid $505.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations were present. Tooth A had a sealant present over either decay or an amalgam. Tooth D showed evidence of a wear pattern which indicated no restoration had been performed on the tooth since such restoration would have interrupted the tooth's wear pattern. Tooth J had extensive decay with no evidence of any restorations. Tooth K had only a sealant on it with decay that had been sealed over on the occlusal side of the tooth. Likewise, tooth L had only a sealant on it. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient S.C. #3, filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT M.J The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the distal-buccal surface of teeth C, D, G and H; the restoration of the mesial-buccal surface of teeth C, D, G and H; and, the restoration of the lingual surface of tooth J. Respondent's record of treatment on Patient M.J. reflects that on March 17, 2000, Respondent allegedly restored the distal-buccal surface of teeth C, D, G and H; the mesial- buccal surface of teeth C, D, G and H; and the lingual surface of tooth J. All of the restorations were either a multi-surface or one-surface composite resin. Respondent was paid $607.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations were present. Teeth D and G appeared ready to exfoliate at time of examination since their roots were not present. Therefore, there was no justifiable reason to restore either tooth D or G. Finally, tooth J had decay present, indicating no restoration had been performed. Clearly, Respondent fraudulently billed and was paid for services not rendered to Patient M.J., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT R.P. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of placing a sealant on tooth 18; the restoration of the distal- buccal surface of teeth 6 and 8; and the restoration of the mesial-buccal surface of teeth 6, 7 and 8. Respondent's record of treatment on Patient R.P. reflects that on February 23, 2000, Respondent allegedly placed a sealant on tooth 18; restored the distal-buccal surface of teeth 6 and 8; and the mesial-buccal surface of teeth 6, 7 and 8. Respondent was paid $373.00 by Medicaid for these procedures. Examinations by the Department's experts revealed no restorations or sealants were present. There was no indication of any four surface preparation on R.P.'s teeth. However, R.P. testified that something was placed on her teeth which material started coming out of her mouth 10 to 15 minutes after she left the Respondent's office and over the next few days thereafter. The clear and convincing evidence indicates that this material was the sealant material used by Respondent. The total loss of this material so soon after placement shows Respondent fell below the standard of care in placing a sealant on R.P.'s teeth. The evidence as to the restorations shows Respondent fraudulently billed and was paid for services not rendered to Patient R.P., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT A.S. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 14, 19 and 30, and the restoration of the occlusal surface of tooth 19. Respondent's record of treatment on Patient A.S. reflects that on March 3, 2000, Respondent allegedly restored the lingual surface of teeth 14, 19 and 30, and the occlusal surface of tooth 19. Respondent was paid $155.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations were present. Tooth 30 had multiple areas which indicated the presence of untreated decay around an older resin filling on the occlusal surface. Tooth 19 had untreated decay. None of the teeth treated by Respondent showed evidence of any preparation for restoration. Given these facts, Respondent fraudulently billed and was paid for services not rendered to Patient A.S., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT J.A. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the occlusal surface of teeth T and S, and restoration of the buccal surface of tooth T. Respondent's record of treatment on Patient J.A. reflects that on March 23, 2000, Respondent allegedly restored the occlusal surface of teeth T and S, and the buccal surface of tooth T. Respondent was paid $93.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations were present. Moreover, no preparation of the tooth's surface was done on either tooth T or S. For Patient J.A., Respondent fraudulently billed and was paid for services not rendered to Patient J.A., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT R.M. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the distal-buccal surface of teeth D, E, F and G, and the restoration of the mesial-buccal surface of teeth D, E and F. Respondent's record of treatment on Patient R.M. reflects that on March 25, 2000, Respondent allegedly restored the distal-buccal surface of teeth D, E, F and G, and the mesial-buccal surface of tooth D, E and F. Respondent was paid $504.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations or preparations for such were present. However, the first expert examination of the patient revealed a small amount of composite material on the buccal and lingual surface of tooth D. By the second examination no composite material was present on tooth D, indicating that Respondent failed to competently practice dentistry in regards to tooth D. Finally, the evidence showed that this patient had rampant decay and should have been treated with stainless steel crowns, again indicating incompetence or malpractice. As to the other teeth and restorations, the evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient R.M., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT E.I. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the mesial-buccal surface of teeth C, D and F, and the restoration of the distal-buccal surface of teeth C and F. Respondent's record of treatment on Patient E.I. reflects that on April 5 and 19, 2000, Respondent allegedly restored the mesial-buccal surface of teeth C, D and F and the distal-buccal surface of teeth C and F. Respondent was paid $360.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations were present as billed for by Respondent. Additionally, the patient's lower cuspid makes contact on the mesial corner of tooth C and the incisal tip of the lower cuspid almost touches the gingival mesial area of tooth C. This overlapping of teeth relative to tooth C makes it impossible for a mesial restoration to be retained without adequate preparation being done on the mesial of tooth C. There was no four-surface preparation on tooth C. Finally, tooth D had evidence of a remnant of filling material on the mesial surface of the tooth. However, no decay was evident in the intact line angle of tooth D and no preparation was done on the mesial of tooth D, indicating no restorations were present on the mesial or distal surface of the tooth. All of these facts show that Respondent fraudulently billed and was paid for services not rendered to patient E.I., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT S.G. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the buccal surface of teeth S and T, and the restoration of the occlusal surface of teeth S and T. Respondent's record of treatment on Patient S.G. reflects that on April 21, 2000, Respondent allegedly restored the buccal surface of teeth S and T and the occlusal surface of teeth S and T. Respondent was paid $124.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations or preparations were present. Both teeth had deep unfilled occlusal grooves indicating no restorations were performed. However, S.G. was an uncontrolled behavior management problem during these examinations. S.G. would not let the Department's experts examine her teeth in a clinical fashion but only afforded these experts a quick look at her teeth or would not let the expert look at all. Therefore, these examination results are of limited value. On the other hand, testimony of a previous treating dentist showed that when he saw the patient two weeks prior to the Respondent treating the patient, the only teeth in need of treatment were teeth I and S. No other decay was visible in the patient's mouth. The Respondent had noted decay on ten other teeth in S.G.'s mouth. Finally, the parent of S.G. testified that S.G. was only treated by the Respondent for approximately ten minutes, but that the tooth that was hurting S.G. and had prompted the visit to the dentist was fixed. Ten minutes is not generally a long enough period of time for the procedures and examination allegedly performed on the patient. However, given this testimony, the evidence was neither clear nor convincing that Respondent fraudulently billed and was paid for services not rendered to Patient S.G., or otherwise was guilty of any of the other alleged violations relating to his treatment of S.G. PATIENT S.L. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the occlusal surface of teeth A, J, K, S and T; the restoration of the lingual surface of teeth J and T; and the restoration of the buccal surface of teeth K and T. Respondent's record of treatment on Patient S.L. reflects that on April 25, 2000, Respondent allegedly restored the occlusal surface of teeth A, J, K, S and T; the lingual surface of teeth J and T; and the buccal surface of teeth K and T. Respondent was paid $279.00 for these procedures by Medicaid. Examinations by the Department's experts revealed that, except for the lingual surface of tooth K, no restorations were present. Tooth J had decay. The evidence was not clear whether tooth K had a poor restoration or a sealant on it. Tooth K had decay indicating no restorations had been performed by Respondent. On the whole, the clear and convincing evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient S.L., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT P.F. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 2, 3, 15, 19 and 30; the restoration of the buccal surface of teeth 2, 3 and 30; and the restoration of the occlusal surface of teeth 4, 15, 18 and 30. Respondent's record of treatment on Patient P.F. reflects that on May 4, 2000, Respondent allegedly restored the lingual surface of teeth 2, 3, 15, 19 and 30; the buccal surface of teeth 2, 3 and 30; and the occlusal surface of teeth 4, 15, 18 and 30. Respondent was paid $372.00 for these procedures by Medicaid. Examinations by the Department's experts revealed no restorations or preparations were present as billed by the Respondent. Tooth 3 showed untreated decay. Tooth 19 and 30 had amalgam fillings which were in place prior to Respondent's treatment. Finally, the parent of Patient P.F. testified that Patient P.F. told her that no fillings were done to his teeth. Given these facts, Respondent fraudulently billed and was paid for services not rendered to Patient P.F., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT L.S. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of teeth 2, 3, 15, 19, 30 and 31; the restoration of the buccal surface of teeth 3, 18, 19 and 31; and the restoration of the occlusal surface of teeth 13, 14, 15 and 18. Respondent's record of treatment on Patient L.S. reflects that on May 8, 2000, Respondent allegedly restored the lingual surface of teeth 2, 3, 15, 19, 30 and 31; the buccal surface of teeth 3, 18,19 and 31; and the occlusal surface of teeth 13, 14, 15 and 18. Respondent was paid $465.00 for these procedures by Medicaid. Examinations by the Department's experts revealed that, other than noted below, no restorations or preparations were present. Teeth 14 and 15 had some restoration material present in the distal-occlusal pit. The resin in the distal- occlusal pit on tooth 15 was loose and came out easily when scraped with the exploring point. There was no preparation evident on the occlusal surface of tooth 15. Tooth 30 had some restorative material on the buccal and occlusal surface. The buccal resin was poorly formed. Teeth 30 and 18 showed untreated decay on the occlusal surface. There was some resin material on the mesial-occlusal surface of teeth 2 and 3. However, the evidence showed that the unusual amounts of alleged lingual restorations on this patient were improbable since the tongue is a natural cleaner of the lingual area on these teeth. Finally, the parent of Patient L.S. testified that no drill was used on Patient L.S.'s teeth and that Respondent did not discuss the treatment with the parent. Given these facts, the evidence showed that Respondent fraudulently billed and was paid for services not rendered to Patient L.S., filed false reports of service to Medicaid, and gained financially when he was paid for services Respondent did not perform. PATIENT N.J. The Amended Administrative Complaint charges Respondent with fraud in the practice of dentistry, filing false reports, making deceptive, untrue or fraudulent representations in the practice of dentistry, and exploiting a patient for financial gain by submitting bills to Medicaid for payment of the restoration of the lingual surface of tooth 3; the buccal surface of tooth 30; and the occlusal surface of tooth 30. Respondent was paid $93.00 for these procedures by Medicaid. Respondent had no record of treatment on Patient N.J. and had no personal recollection of Patient N.J. Without such records Respondent cannot adequately formulate a defense to the charges related to his treatment of Patient N.J., determine the pre-treatment state of Patient N.J.'s teeth, or determine the results of his examination of Patient N.J. Examinations by the Department's experts revealed no restorations were present. However, without the patient records for Patient N.J., it cannot be determined whether Respondent is guilty of any violations of Chapter 466, Florida Statutes. Petitioner's experts saw the above patients between one and nine months from the date that Respondent allegedly treated them. Such a lapse of time would not generally produce the degree of untreated decay or the loss or lack of restorations observed in these patients. Preparations for filling cavities is generally permanent. Most of these patients showed no preparation of the surface of the tooth for restoration. With the exception of Patients S.G. and N.J., Respondent's treatment of these patients was below the standard of care since in most instances, no treatment was rendered to these patients where needed. Respondent acted fraudulently when he represented that services were performed when such services had not been performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of It is RECOMMENDED that the Respondent's license be revoked and that he pay a penalty of $500,000. DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2001. COPIES FURNISHED: Douglas L. Stowell, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302 Tracy J. Sumner, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 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
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the amendment thereto, which added an additional count, and, if so, what action should be taken.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of dentistry pursuant to Chapters 455 and 466, Florida Statutes, and Section 20.43, Florida Statutes. At all times material hereto, Respondent was a licensed dentist in the State of Florida, having been issued license number DN 0013137. Respondent has been licensed to practice dentistry since July 1992, over eight years. Prior to being licensed in Florida, Respondent was a licensed dentist in Cuba, having been licensed in 1986. Respondent has also completed a post-graduate course in oral surgery, maxillary facial surgery, and oral and facial reconstructive surgery. son. Respondent is a single parent. She has a 15-year-old In 1993, Respondent opened her first dental office. Her patients were Hispanic and were mostly private patients. In her dental practice, Respondent performed general dentistry, as well as specialty areas of dentistry, such as root canals and surgery. As a result, she did not refer her patients to dentists who practiced in the specialty areas. From 1995 to 1996, Respondent's practice significantly changed in patient base and volume. As a result of the Cuban rafter crisis in South Florida in August 1994, her patient base changed from mostly private patients and became mostly Medicaid patients, who were Cuban refugees, and the number of her Hispanic clients greatly increased. Between 1995 and 1996, most of Respondent's patients possessed common characteristics. Most of her patients were Cuban refugees, who did not speak English, were poor, had teeth in generally poor condition, which needed a substantial amount of dental work, had gum disease, and were qualified for Medicaid. During the relevant time period in the instant case, for patients over the age of 21 years, Medicaid paid for only three services: oral exams, dentures, and extractions. Medicaid did not cover services or treatments for a filling, cleaning, root canal, crown, or gum disease. Many of the Respondent's Cuban refugee patients had chronic gum disease. Respondent rendered many needed dental services that were not covered by Medicaid. Respondent was known to the Cuban refugees as a dentist who did not refuse to provide dental treatment. Many of the Cuban refugees were aware that Respondent would provide dental treatment for those who were over 21 years of age. In some instances, Respondent provided dental treatment without cost. Many Cuban refugees were referred to Respondent by a well-known Hispanic newspaper in Miami-Dade County. Respondent's practice increased dramatically. Her patient base increased from 10 to 15 patients a day to nearly 40 patients a day. Her practice experienced a substantial increase in dental treatment; hours of operation (11 to 12-hour days); the cost of treating the volume of patients; lab supplies; paper work; staff; overhead; and administrative costs. As a result of the increase in her practice, Respondent hired Augustine Gonzalez, as a dental assistant. Mr. Gonzalez was employed with Respondent for approximately six months, beginning on or around May 1995. Respondent knew Mr. Gonzalez as he had graduated from dental school with her in Cuba and they interned together in Cuba. Respondent considered Mr. Gonzalez to be a competent dentist due to his education, training, and experience even though he was not a licensed dentist in the State of Florida. Mr. Gonzalez performed dental services or treatments, which were originally designed to be under Respondent's supervision. Respondent was not always in the same room with Mr. Gonzalez when he performed the dental services or treatments. Due to the escalation in her practice, Respondent permitted Mr. Gonzalez to examine patients, drill, and install permanent fillings. In many instances, because of the escalation of her practice, Respondent was not able to check a patient after Mr. Gonzalez examined the patient and to review dental work performed by Mr. Gonzalez. In the State of Florida, Mr. Gonzalez was not qualified by training, experience, or licensure to examine patients, drill, and install permanent fillings. Mr. Gonzalez was not a licensed dentist in the State of Florida. He was not authorized in the State of Florida to examine patients or drill or install permanent fillings. Additionally, Mr. Gonzalez had not completed any course recognized by the American Dental Association which would have expanded his duties as a dental assistant. From 1995 to 1996, the following 15 Cuban refugees patients were among the refugee patients who received dental services and treatments from Respondent: M.A.A.; A.F.; A.A.; M.A.; C.G.; D.A.G.; E.A.; I.A.; M.C.A.; E.B.; R.D.; C.V.; R.B.; M.I.; and A.B.4 At the time that Respondent rendered the dental services or treatments, all of Respondent's dental records were written in Spanish. Extractions and fillings were performed on the patients without first obtaining X-rays. The minimum standard of care requires the taking of X-rays in diagnosis and treatment prior to extracting or filling teeth. The Patients' records do not reflect that X-rays were taken or contain the results of any X-rays. Respondent contends that X-rays were taken of all patients who were receiving dentures and routinely of first-time patients. The minimum standard of care requires the recording in a patient's record of X-rays being taken and the results therefrom. Respondent failed to take X-rays of the Patients. If X-rays were taken, the Patients' records would have reflected it. Respondent rendered dental services or treatments which were not recorded in the Patients' records and rendered more dental services than reflected in the records. Additionally, some services or treatments recorded as being performed were not performed. As a result, Respondent generally failed to maintain accurate patient records. For example, (1) as to Patient E.B., (a) three Spanish charts existed, with each reflecting a different number of visits and (b) one of the Spanish records reflected the filling of two teeth (Nos. 18 and 20), one other such record reflected one filling (No. 18) and sealants; (2) as to Patient D.A.G., the Spanish chart reflected nine fillings but Patient D.A.G. maintains that there were probably only two fillings; (3) as to Patient C.V., the Spanish record failed to reflect services rendered on a tooth in the patient's lower jaw; (4) as to Patient M.A., two Spanish charts existed and Respondent could not definitively state whether the recorded services were the services rendered to the patient; and (5) as to Patient A.B., the recorded entries were out of sequence and Respondent could not definitively state whether the recorded services were the services rendered. Respondent's dental records reflect that an oral exam was performed on the first visits but failed to reflect existing disease or pathology, or lack thereof, of the patients. Further, Respondent's dental records reflect the terminology "medical history" but fail to recite the Patients' medical history. Consequently, no disease or pathology, or the lack thereof, or medical history was recorded in the Patients' records. Respondent contends that her dental practice was too busy and overwhelmed to maintain complete dental records for the Cuban refugee patients. However, Respondent agrees that a busy practice does not relieve a dentist from complying with minimum standards of record keeping. Respondent instructed her office manager, Maria Otero, to handle the Medicaid billing for the dental office. Respondent directed Ms. Otero to falsify Medicaid billings and Medicaid billing records. Ms. Otero was directed by Respondent to change the dates of services rendered, as necessary, in order for the services billed to qualify for Medicaid; and to bill Medicaid for X-rays, extractions, alveoplasties, and dentures. Ms. Otero had no knowledge of which services or treatments were actually being performed and which were not. Because of this lack of knowledge, in her billing, Ms. Otero saw no relationship between the dental work actually performed and the dental work which was billed. Although dental services and treatments were rendered for each Patient, Ms. Otero billed for services or treatments rendered and services or treatments not rendered. Respondent did not review or check the billing to Medicaid. She signed the Medicaid billing requests without reading them. To prepare for the possibility an investigation, Respondent directed Ms. Otero to create dental records in English to match the false Medicaid billing. As a result, Respondent had two sets of dental records for the Patients, one in Spanish (the correct records) and one in English (the false records). Florida's Office of the Attorney General, Medicaid Fraud Control Unit (Fraud Unit) conducted an investigation of possible fraud by Respondent. During the investigation, the Fraud Unit requested the Patients' records from Respondent. Respondent provided the actual questionnaire completed by Patients and also provided the English records, instead of the Spanish records, as the authentic records. Even when the dental records were subpoenaed, the English records were provided. During the investigation by the Fraud Unit, Respondent approached Patient M.A.A. and attempted to persuade him to join in the untruths presented regarding services or treatments rendered by Respondent to the Patients. She requested Patient M.A.A. to lie about the services that had been rendered to him if he was questioned regarding the services that he had received. Respondent requested that Patient M.A.A. tell the Fraud Unit that her office had performed his extractions even though the extractions were performed in Cuba. Respondent did not admit her participation in the fraud being perpetuated until her deposition which was taken by Petitioner on July 11, 2000. As a Medicaid provider, Respondent agreed to accept payments on Medicaid's scale of fees for Medicaid patients. Respondent's charges for the same services or treatments rendered by her to her private patients were more than the reimbursement fees reflected on Medicaid's scale of fees. Respondent does not dispute that she billed for the services or treatments rendered in the Administrative Complaint filed against her by Petitioner. Furthermore, Respondent does not dispute the dollar amount that she received from Medicaid.5 For Patient M.A.A., Respondent billed for services rendered on five visits from a period of February 9, 1996, through March 12, 1996. Respondent billed Medicaid $1,175.00 and was paid $273.85 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $261.85. For Patient A.F., Respondent billed for services rendered on 12 visits from a period of May 31, 1995, through July 28, 1995. Respondent billed Medicaid $819.00 and was paid $778.05 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $766.05. For Patient A.A., Respondent billed for services rendered on eight visits from a period of December 14, 1995, through February 4, 1996. Respondent billed Medicaid $1,990.00 and was paid $581.80 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $569.80. For Patient M.A., Respondent billed for services rendered on four visits from a period of June 6, 1996, through June 27, 1996. Respondent billed Medicaid $1,035.00 and was paid $267.15 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $255.15. For Patient C.G., Respondent billed for services rendered on six visits from a period of April 29, 1995, through June 7, 1995. Respondent billed Medicaid $908.00 and was paid $808.45 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $796.45. For Patient D.A.G., Respondent billed for services rendered on five visits from a period of April 27, 1995, through May 25, 1995. Respondent billed Medicaid $774.00 and was paid $697.30 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $685.30. For Patient E.A., Respondent billed for services rendered on six visits from a period of January 19, 1996, through February 20, 1996. Respondent billed Medicaid $1,410.00 and was paid $341.00 by Medicaid. Patient E.A. was under the age of 21 years, and, therefore, all services were covered by Medicaid. Had the appropriate service been billed by Respondent, the payment by Medicaid would have been $1,215.00, resulting in an underpayment by Medicaid of $874.00. For Patient I.A., Respondent billed for services rendered on four visits from a period of May 2, 1996, through May 23, 1996. Respondent billed Medicaid $835.00 and was paid $229.18 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment of $217.18. For Patient M.C.A., Respondent billed for services rendered on 11 visits from a period of June 3, 1995, through December 26, 1995. Respondent billed Medicaid $1,570.00 and was paid $1,067.70 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $1,055.70. For Patient E.B., Respondent billed for services rendered on 11 visits from a period of May 16, 1995, through July 15, 1995. Respondent billed Medicaid $908.00 and was paid $862.60 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $850.60. For Patient R.D., Respondent billed for services rendered on nine visits from a period of June 30, 1995, through August 24, 1995. Respondent billed Medicaid $1,116.00 and was paid $1,060.20 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $1,048.20. For Patient C.V., Respondent billed for services rendered on nine visits from a period of June 6, 1995, through August 4, 1995. Respondent billed Medicaid $1,121.00 and was paid $1,064.95 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $881.00, resulting in an overpayment by Medicaid of $183.95. Also, included in the services rendered and billed to and paid by Medicaid was the preparation of dentures to Patient C.V., however, no extractions were performed on Patient C.V., so he did not obtain the dentures from Respondent. For Patient R.B., Respondent billed for services rendered on eight visits from a period of March 8, 1995, through April 21, 1995. Patient R.B. also received dentures from Respondent. Respondent billed Medicaid $1,063.00 and was paid $971.85 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $500.30, resulting in an overpayment by Medicaid of $471.55. For Patient M.I., Respondent billed for services rendered on 11 visits from a period of April 1, 1995, through May 30, 1995. Respondent billed Medicaid $1,231.00 and was paid $1,169.45 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $1,157.45. For Patient A.B., Respondent billed for services rendered on 10 visits from a period of November 2, 1995, through January 12, 1996. Respondent billed Medicaid $1,231.00 and was paid $1,169.45 by Medicaid. Also, included in the services rendered and billed to and paid by Medicaid were the preparation and delivery of dentures to Patient A.B. It could not be determined what services were actually performed for Patient A.B. and, therefore, it cannot be determined what the payment by Medicaid would have been if the appropriate services had been billed and what the overpayment, if any, is. As a result, for the 15 Patients, Respondent billed $18,467.00 to Medicaid, was paid $11,126.88 by Medicaid, and received $7,445.23 in overpayment from Medicaid. None of the 15 Patients were aware that Respondent was billing Medicaid for dental services not rendered. Medicaid pays for dentures only once. For patients who did not actually receive dentures from Respondent, but the providing of dentures was billed to Medicaid, those patients may possibly have a problem in the future in securing dentures paid for by Medicaid. As to services or treatments rendered by Mr. Gonzalez, he performed the examination and cleaning and checked fillings of Patient C.G.; performed the examination and cleaning and installed fillings of Patient D.A.G.; and performed the examination and cleaning, installed fillings, and took impressions for dentures of Patient C.V. Patients C.G., D.A.G., and C.V. were satisfied with the services that they received. The services and treatments performed by Respondent for the 15 Patients were necessary services. Petitioner does not contend that Respondent failed to practice dentistry with reasonable skill and safety. By Order of Emergency Suspension of License, filed April 17, 1998, Respondent's license to practice dentistry was suspended on an emergency basis by the Board of Dentistry. On October 15, 1999, Respondent was charged with one count of Medicaid fraud by the Statewide Prosecutor for the State of Florida in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, Case No. 99-35476. The charge of Medicaid fraud was a result of her false Medicaid billing arising from her practice of dentistry. On June 28, 1999, Respondent entered into a plea agreement. The terms of the plea agreement included, among other things, a plea of guilty with the understanding that Respondent would request that adjudication be withheld; three-year probation with 2600 hours of community service, $100,000.00 reimbursement to the Florida Medicaid Program, pay $5,000.00 to the Office of the Attorney General, Medicaid Fraud Control Unit for costs of the investigation, and $3,500.00 to the Office of the Statewide Prosecutor for costs of prosecution; and full cooperation by Respondent with the State of Florida in its investigation. On November 9, 1999, Respondent plead guilty to the one count of Medicaid fraud. Adjudication was withheld and Respondent was placed on probation for three years with 2600 hours of community service. Furthermore, on November 9, 1999, the Court entered judgments against Respondent for $100,000.00, payable to the Agency for Health Care Administration for restitution; for $5,000.00, payable to the Office of the Attorney General, Medicaid Fraud Control Unit for investigative costs; and for $3,500.00, payable to the Office of the Statewide Prosecutor for costs of prosecution. On November 18, 1999, the terms of Respondent's probation were modified by the Court to permit Respondent to perform her community service hours in a dental facility. On January 3, 2000, Respondent's counsel and counsel for the Statewide Prosecutor entered into a stipulation amending Respondent's plea agreement. The amended stipulation was filed with the Court in Respondent's Medicaid fraud case. The amended stipulation provided in pertinent part as follows: In order to serve the public in a more appropriate manner and commensurate with her professional abilities, Dr. Nieto may fulfill her obligation providing services as a dentist or a dentist assistant in any governmental or public health facility (including a correctional facility), during the three year period, which will include the period during which she is suspended from private practice, if approved by the Department of Health, Board of Dentistry, at a rate of no less than twenty (20) hours weekly as community service. An inference is drawn, from the actions of the Statewide Prosecutor and the Court, that Respondent's conduct should not prevent her from practicing dentistry. In February 2000, Respondent was notified by the U.S. Department of Health and Human Services that, as a result of her conviction for Medicaid fraud, she was excluded from participating in the Medicare, Medicaid, and all federal health care programs for a minimum of five years. Respondent has not practiced since the emergency suspension of her license on April 17, 1998, almost three years ago. Not being able to practice has exacted a toll on Respondent's life. She experienced a state of depression and is under psychological treatment and taking medication for her depression. Her finances have suffered severely, and in addition to losing her dental practice and office, she has lost her home. Respondent has no prior disciplinary action by Petitioner. Character witnesses testified on behalf of Respondent. One such witness was Eladio Armesto who publishes the oldest Cuban-American weekly newspaper in the State of Florida and publishes a magazine which is a feature of the newspaper. Mr. Armesto referred many Cuban refugees to Respondent, advising Respondent that the potential patients could not pay her for her services. He also referred non-Medicaid eligible persons, as well as Medicaid-eligible persons, to Respondent. Respondent never refused services or treatments to any of the referrals. Mr. Armesto praised Respondent's willingness to help and the dental work provided to Cuban refugees by Respondent. Many letters in support of Respondent were also submitted. The undersigned is persuaded that Respondent's actions in falsifying the dental records and the Medicaid billing claims were not for financial gain, although one cannot dismiss that Respondent did receive monies from Medicaid, but were to assist Cuban refugees with the dental work needed by them. Respondent rendered dental services, for the 15 Patients and other patients, beyond that for which Medicaid would pay and for which the patients could pay themselves.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order: Finding that Marta Nieto, D.D.S., violated Subsections 466.028(1)(c), (j), (l), (m), (t), (x), (z), and (aa), Florida Statutes. Suspending Dr. Nieto's license for five years, with the time period during the emergency suspension being applied towards the five-year suspension. Placing Dr. Nieto on probation for three years under the terms and conditions deemed appropriate. Imposing an administrative fine of $24,000.00. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 1st day of February, 2001.
