The Issue The issue for determination in this proceeding is whether Respondent's license to practice dentistry should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 466, Florida Statutes.
Findings Of Fact Respondent is a licensed dentist in Florida. He has been so licensed since 1971. Dr. Boyd opened his private practice in 1971. That same year, Dr. Boyd began his employment with the Department of Health and Rehabilitative Services' Escambia County Public Health Unit. Since that time he has maintained his practice in both the private and public sectors, carrying on both pratices at the same time. Respondent is currently the Dental Executive Director of the HRS Escambia County Public Health Unit. During the times relevant to the Amended Administrative Complaint, Dr. Boyd earned in excess of $100,000.00 a year. Dr. Boyd comes from a well-established family in the Pensacola area. The family has many professionals in it. Dr. Boyd has a reputation as a highly ethical, very honest individual. He is also known as a sincere and hard working professional who has a high standing in the community and gives freely of his time to raising the quality of health care to the poor. Given these qualities and Dr. Boyd's income from the practice of dentistry, it does not appear likely that Dr. Boyd would jeopardize his career and life goals for the small amounts of money associated with the allegations contained in the Amended Administrative Complaint. From 1981-1985, Respondent was a Medicaid provider. Dr. Boyd's patient profile was about 60% white and 40% black. The majority of Dr. Boyd's patients were low income to indigent people. About 60% of his patients were Medicaid patients. The average Medicaid patient has very gross decay and pain. The problem is further exacerbated by the fact that the water in the Pensacola area is not fluoridated. The lack of fluoridation, results in a considerably higher rate of decay in children and also increases the incidence of dental work needed in the Medicaid population who already suffer from poor dental hygiene. Many of Dr. Boyd's patients under age 21 required deep root scaling because of their poor dental hygiene. This type of scaling was more than the normal scaling. It was uncommon to perform curettage on patients under 21 years of age. In general, most of Dr. Boyd's patients needed more dental work completed at one time than patients from higher income families. Often Dr. Boyd would be called upon to work on all of a patients teeth in one quadrant while the patient was anesthetized because he was not sure the patient could be made to come back in for later appointments. The majority of Dr. Boyd's patients would have an initial examination, X-rays, cleaning and then a treatment plan would be devised to use in follow-up appointments. The treatment plan consisted of an entry on a diagram in the chart, using colored markers and symbols to show where dental work was needed. It was highly unusual for Dr. Boyd to omit recording a treatment plan on a patient, except when he dealt with episodic patients. Dr. Boyd also relied on his oral examination sheets, preauthorization request forms and his notes on the record of treatment sheets as his treatment plans. 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 estab1ish a Medicaid Program which meets federal requirements. Florida has established such a program. It is administered by the Department of Health and Rehabilitative Services. 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, i.e. $8 for amalgams (fillings) involving one tooth surface, $16 for fillings involving two tooth surfaces, scaling and curettage, surgical extractions, etc. The fee has no relationship to the amount of time the doctor is actually required to spend with the patient in order to deliver any given dental service. However, in recognition of the fact that some dental patients require more time, Medicaid does allow a charge for troublesome patients when such patients are also under 21 years of age. There are several management type problems for children through the age of 21. These management problems include teeth gritting, thrashing heads to disable the dentist from injecting anesthesia and physical use of hands to push away instruments or syringes. In Dr. Boyd's case, more than half of his patients had some degree of behavior management problem. A Medicaid provider bills Medicaid for dental services by a system of billing codes. These codes are based on the American Dental Association's codes for classifying each dental service. As a general rule, a Medicaid provider is entitled to be paid after dental services are rendered or delivered. One exception to the delivery rule occurs when dentures are being made for the patient. In such a case, the doctor is entitled to be paid before actual delivery of the dentures. The exception is based on the fact that a great deal of reimburseable work is performed by the dentist or dental lab prior to actual delivery of the dentures to the patient. A dentist or dental lab is entitled to compensation for such work, even if the dentures are never delivered. Occasionally, Medicaid requires that a dentist obtain authorization before a particular dental procedure will be paid by Medicaid. Such pre- authorization was always required for scaling and curettage. When scaling and curettage was called for, a dentist would submit a request for such authorization to Medicaid along with X-rays of the patient's teeth. Medicaid would review the X-rays and approve or disapprove payment for the procedure. Pre-authorization relates only to the payment for services and not to when those services are performed by the den-ist. In essence, the dentist assumes the risk of not being paid by Medicaid should the pre-authorization be disapproved. Such approval could take from two to three weeks after submission of the documentation. Important to the determination of certain violations alleged in the Administrative Complaint is the fact that the relationship between the Department of Health and Rehabilitative Services and the dentist is a matter of contract entered into between the respective parties. Incorporated in the Medicaid contract is information contained in three manuals which when stacked on top of each other measure about an inch and one-half. A portion of this case involves certain "standards of practice" which have their sole legal basis in the interpretation of the contract between a Medicaid provider, such as Respondent, and the Department of Health and Rehabilitative Services' Medicaid Division. None of these "standards" have been adopted by the Board of Dentistry as a rule and the Board is not a party to the Medicaid contract. Moreover, the Board could not adopt such "standards" since Chapter 466, Florida Statutes, in no way grants the Board the authority to interpret the language contained in a contract for service that a licensee may have entered into. Therefore, to the extent that some of the alleged violations in certain of Counts of the Amended Administrative Complaint depend on or have their basis in the interpretation of the Medicaid contract or the breach of that contract, then those alleged violations cannot be sustained. In 1986, Respondent was the subject of an investigation by the Medicaid Fraud Control Unit of the Auditor General's Office. The investigation was conducted by Special Agent Wes Greenwald. The investigation stemmed from a computer printout produced by the Program Integrity Division of the Medicaid Office at HRS. The printout indicated that Respondent requested payment for dental work which when compared to a national average was over that average. Special Agent Greenwald selected 80 patient records out of the 967 Medicaid patients treated by Dr. Boyd during the period January, 1981, through April, 1985, for which claims were submitted to Medicaid for payment. Only 65 of the records could be located. Mr. Greenwald photocopied and reviewed the 65 patient records which could be found. Of the 65 patient records he reviewed, 18 patient records whose treatment had been for multiple tooth surface restorations were identified for further scrutiny. Of those 18 patients he was able to locate and interview 14 patients. Dr. Charles Kekich is a licensed dentist in Florida and for seven years was employed as a Dental Consultant by HRS Special Health Services. His duties included assisting the Medicaid Fraud Control Unit in their investigations. Prior to being employed as a dental consultant, Dr. Kekich was employed as a dentist with the State Board of Health which provided clinical dentistry to children from lower socioeconomic groups. For the past 21 years, Dr. Kekich has acted in an administrative or advisory capacity and has not actively rendered dental services, such as the services involved in this case, to patients. Additionally, Dr. Kekich has never been a Medicaid provider and has never filed a Medicaid form. His expertise in the area of Medicaid practice and the general standards of practice in dentistry is therefore given little weight when compared to the experts called by Respondent in this case. 2/ In his capacity as a dental consultant, Dr. Kekich clinically examined 14 of the 18 patients identified by Mr. Greenwald. 3/ Dr. Kekich did not have the benefit of examining any of the patients prior to any of the work performed on them by Dr. Boyd. Dr. Kekich used a specialized flashlight which looked like a penlight and a tongue depressor in conducting his examinations. Dr. Kekich examined the patients in the school lunch room and the principal's office at the school the patient attended, at the patients' homes and in the county jail. Smaller patients were asked to lie down on a table or sofa. He did not clean the teeth prior to the examination or attempt to pick the teeth to remove any small debris from the teeth which may be hiding the edges of a filling. He did not use any mirrors. Such an examination's results are at best tenuous since Dr. Kekich's failure to utilize good standard clinical equipment and procedures can easily create a situation where teeth cannot be c1ear1y seen. Dr. Kekich examined each tooth twice. If there was a question as to the extent of the restoration (e.g. how many of the tooth surfaces were restored), Dr. Kekich believed he gave the benefit of the doubt to Respondent. Respondent asked Dr. William Rogers to conduct a separate independent examination of the patients included in the Amended Administrative Complaint. Dr. Rogers is a licensed dentist employed by the Escambia County Public Health Unit. Dr. Rogers has been with the Health Unit for 15 years and has had a private dental practice for 16 years. Dr. Rogers clinically examined 11 patients of the 14 patients that Dr. Kekich examined. The patients were examined in Dr. Boyd's dental office. During the examination of each patient, Dr. Roger's used a dental chair, dental mirror, dental Explorer and dental light. Each doctor reported his 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 which is the part of the tooth that faces the front; (c) the letter "D" was used to signify the distal surface of the tooth which is the part of the tooth that faces the back; (d) the letter "B" was used to signify the buccal surface which is the side of the tooth facing the cheek; and, (e) the letter "L" was used to signify the lingual surface which is the side of the tooth that faces the tongue. The abbreviation "EX" on Dr. Kekich's exam chart means extracted. The abbreviation "NF" means no filling. Each Doctor also referenced a particular tooth according to a standard numbering system where each tooth is given a number. A diagram showing this numbering system is contained in Appendix II of this Recommended Order. The results of these respective examinations along with Dr. Boyd's results are as follows: PATIENT TOOTH BOYD KEKICH MCLEOD ROGERS S.C. 28 O O no exam O #1 30 OBL extracted missing 31 OBL O OBL 29 O O O M.G. 3 OBL OL no exam O-OL #3 2 OBL O OL 5 O O O 4 O O O 12 O O O 13 O O O 14 OBL OL OL 15 OBL O OL 18 OBL O OL 2O O O O 21 O O O 28 O O O 29 O O O 30 OBL O OB N.L. 2 OBL OL OL OL #6 3 OBL OL OL OL 14 OBL OL OL OL 15 OBL OL OL OL 18 OBL O O O 19 OBL OB OB OB 28 OL O O O 29 OL O O O 30 OBL OB OB OB 31 OBL O O OB J.L. 2 OBL O/site B O/site B no exam #7 9 OBL O/site O O/site I 10 OBL OL/site J OL/site J 11 OBL OB/site K OB/site K 12 OBL OB/site L OB/site L 19 OBL OB/site S O/site S 20 OBL OB/site T OB/site T S.M. 2 OBL OBL OBL no exam #8 3 OL OL OL 14 OL OL OL 15 OBL OL OL 18 OBL O O 19 OBL O O 20 OBL OBL O 21 MOL OL O 28 MOL MO OL 29 OBL O O 30 OBL OB OL 31 OBL OB OL M.M. 2 OBL O OL O #9 3 OBL OL OL OL 4 O O O O 5 O O O O 1O OBL no rest. no rest. no rest. 12 O O O O 13 O O O O 14 OBL OL OL OBL 17 OBL O O O 18 OBL O O OB 20 OBL O O O 21 OBL O O O 28 O O O O 29 OL O O O 30 OBL OB OB OB 31 OBL O O OB L.A.P. 3 OBL OL OL OBL #10 14 OBL OBL OL OBL 18 OBL O O OBL 19 OBL OBL O OBL 20 OBL DO OL OL 21 OL O O O 28 O O O O 29 O O O O 30 OBL OL OB OBL 31 OBL O O OB N.P. 2 OBL OL OL no exam #11 3 OBL OL OL 4 DOL DO DO 5 O O O 12 DOL missing missing 13 DOL DO DO 15 OBL OB O 16 OBL no rest. no rest. 19 OBL OB OB 20 O O O 21 O O O 28 O O O 29 O O O 30 OBL OB O-B 31 OBL O O L.P. 3 OBL OBL OBL OBL #12 1 OBL unerupted missing missing 5 MOL O O O 10 OBL replaced replaced replaced 12 MOL O O O 14 OBL OL OL OL 19 OBL OB OB OB 30 OBL OB OB OB J.S. 2 OBL OBL no exam OL-B #14 10 OBL 2D-DO DOL A.S. 2 OBL O O O #15 3 OBL OL OL OL 4 O O O O 5 O O O O 12 O O O O 13 O O O O 14 OBL OBL OBL OBL 15 OBL O O O 18 OBL OB O O 19 OBL OB O-B 0-B pit 20 OB O O O 21 O O O O 28 MOL O OL OL 29 O O O O 30 OBL OB O-B O-B 31 OBL O O O K.S. 1 OBL O O O #16 2 OBL OBL O-L OB-OL 3 B OBL O-OL-B B-OB-OL 4 OBL fil. mis. fil. mis. fil. mis. 14 B/OBL OBL O-B-OL B-OB-OL 16 OBL O O O 17 OBL OB OB OB 18 OBL OBL OBL OBL 19 OBL OBL OL-B OL-B 20 B O O O 21 MOL OL OL MOL 28 MOL OL O-O O-OL 30 OBL OB OB OB 31 OBL OBL OBL OBL 32 OBL OB OB OB M.W. 18 OBL O O O #17 19 OBL MOB MO-B MO-B 20 OBL O O O 21 O O O O 28 MOL O O-O O-O 29 OL O O O 30 OBL MOB MO-B MO-B 31 OBL O O O K.W. 2 OBL OL OL OBL #18 3 OBL/M BOL/M OL OBL-Mpit 5 OBL OD O O 12 MOB DO OL OBL 13 OBL missing missing missing 14 OBL OBL OBL OBL 15 OBL OB OB OB 18 OBL OB OB OBL 20 OBL OL OL OBL 21 MOB MO MO MOB 23 OBL no rest. no rest. no rest. 28 OBL MOL MOL MOL 29 OBL OBL OL OBL-fil.M In this case, four experts, including Dr. Boyd, testified, regarding the determination of how many tooth surfaces are involved with that tooth's filling. All four experts legitimately, differed, on how such a determination was made. It is simplest to visualize the surfaces of a tooth by visualizing a closed box. It has a top with four sides. Obviously, these "surfaces" connect to an adjoining surface at some point or plane. It is a matter of dental philosophy on how many surfaces are involved when dealing with whether an amalgam or filling involves one, two, or three surfaces at these connecting points or planes. The matter would be simple if a simple one dimensional linear connection existed between surfaces. However, such a connection is not the case. All of these surfaces have a thickness or width associated with them making it very difficult, if not controversial, whether a given surface is involved in an amalgam. Word-wise all of the expert's descriptions for such a determination sound relatively the same. However, it was in the description of what a 1, 2, or 3 surface amalgam looked like that very crucial differences appeared. The differences between the expert opinions depended on where that expert drew the line for a filling "touching" another surface. Dr. Kekich believed that a filling on the occlusal surface could not be said to touch one of the side surfaces, if looking at the top of the tooth, the filling was surrounded by tooth enamel. Dr. Boyd and for the most part his experts did not hold such a view given that the side surfaces have a thickness to them which flows into the occlusal surface. Given that thickness, a filling may be completely surrounded by tooth enamel but still involve "or touch" another surface because the inside interior of that side surface would be undermined by the operation of drilling on the occlusal surface and filling the cavity. A dentist who had not done the actual drilling would be hard put to say whether the drill and consequently the amalgam "touched" one of the side surfaces' interior wall. A dentist would simply have no way to tell if the interior wall of a side surface had been affected by the drilling activity because no individual can see the interior of a tooth. As a practical matter and especially in the case of surface amalgams, it is almost impossible to determine whether dental work on a patient was needed or not without having examined the patient before the questioned work was performed. None of the dentists who examined Dr. Boyd's patients had the benefit of examining these patients prior to any of the questioned work being performed by Dr. Boyd. The differences among these various experts alone demonstrates that there is no true standard of practice for determining how many tooth surfaces are involved when dealing with potentially multi-surface amalgams. All of the amalgams involved in this case were potential multi-surface amalgams. Absent a clear standard of practice, there can be no violations of Subsections 466.028(1)(j), (l), (n) or (u), Florida Statutes, when multi-surface restorations are at issue. Additionally, since Dr. Boyd had a legitimate reason for labelling a given amalgam as a multi-surface amalgam, Dr. Boyd is not guilty of violating Subsection 466.028(1)(j), (l), (n) or (u), Florida Statutes, because such a reason precludes a finding of any intent by Respondent to commit fraud, misrepresent facts, file false reports or exploit his patients. Mary Barron Powell prepared and processed the Medicaid billings in Dr. Boyd's office. Ms. Powell had a great deal of experience in preparing Medicaid claim forms and Dr. Boyd had no reason to doubt her ability in that regard. Ms. Powell was authorized by Medicaid to file Medicaid claims. Therefore, Dr. Boyd did not review the claim forms prepared by Ms. Powell. Such delegation of authority to a billing clerk is not unusual in the practice of dentistry and does not violate any standard of practice. When a Medicaid patient would come in to the office, Ms. Powell would place that patient's name on a list. Medicaid would be billed on a monthly basis for any dental work performed on that patient. All of the Medicaid bills were drawn up at the same time each month. Ms. Powell would generally prepare about fifty Medicaid bills a month. Ms. Powell completed the claim forms by utilizing Dr. Boyd's record of treatment contained in a patient's dental records. Ms. Powell would fill out the form, affix Dr. Boyd's signature as "Dr. Ralph Boyd/M.B." and mail the claim to Medicaid for payment. Whenever Ms. Powell had a question relating to preparing or processing a Medicaid bill, she would call the Medicaid office for instructions. When a Medicaid claim was denied, Ms. Powell would telephone Medicaid to ascertain the reason for the denial and receive instructions to refile the rejected claim as a totally new claim. Ms. Powell was never instructed by Dr. Boyd to bill Medicaid for services that were not performed or were not in a patient's record of treatment. She would occasionally catch and correct errors in her billings and would, if she was not sure about how to correct such errors, call the Medicaid office for instructions. Such instructions often included a direction to refile the claim as a new claim. At other times, Ms. Powell would discover that Medicaid had overpaid a claim. In those instances, she would advise the Medicaid office and Medicaid would subtract the overpayment from the next Medicaid payment. 4/ Occasionally, Ms. Powell would accidentally look at the wrong page of a patient's record and would fill the Medicaid billing form out with the information contained in the treatment plan of the patient instead of with the services which had been performed. Similarly occassionally, Dr. Boyd would indicate the wrong tooth had been treated. However, the dental record would be correct in the total number of teeth treated. Such inadvertant mistakes are a far cry from fraud or negligence in the practice of dentistry on the part of a licensee and do not constitute failure to practice within the minimum standards of practice in dentistry. Similarly the dentist's contractual responsibility in filing a Medicaid claim cannot be used to bootstrap a charge of fraud onto a dentist for such mistakes. As indicated earlier, the Amended Administrative Complaint contains twenty separate counts, involving 18 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.C. (1714277020). Count I of the Amended Administrative Complaint charges Dr. Boyd 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 amalgam restorations on teeth 31 and 30 after he had extracted tooth 30. Respondent's record of treatment on patient S.C. reflects that on February 17, 1984, Dr. Boyd extracted tooth #30 and that on February 28, 1984, he restored teeth ##31, and 30 with three surface restorations. Dr. Boyd's record of treatment also showed that on February 28, 1984, tooth 32 was restored and had a pulpotomy. Dr. Kekich's examination of patient S.C. revealed that tooth #30 was still present in S.C.'s mouth and that it had been restored on three surfaces as indicated in Dr. Boyd's record of treatment. On the other hand, Dr. Rogers examination of S.C. revealed that tooth #30 was missing and tooth #31 had a three surface amalgam restoration, as claimed by Respondent. On February 25, 1984, Ms. Powell billed Medicaid for restoration of teeth #31 and #30 with three surface amalgam restorations on February 28, 1984, and extraction of tooth #30 on February 17, 1984. Payment was denied on this claim. On March 21, 1984, Ms. Powell resubmitted the bill to Medicaid. Medicaid paid for the restoration of teeth #31 and #30. Medicaid did not pay for the extraction of tooth #32 because the extraction of that tooth had, inadvertently, been submitted as tooth #30. Given the fact that tooth #30 is present in S.C.'s mouth and was restored on three surfaces, it is apparent from a review of Dr. Boyd's record of treatment on patient S.C. that Dr. Boyd inadvertently indicated that tooth #30 had been extracted when, in fact, tooth #32 had been removed. The error was continued by Ms. Powell when she filled out the Medicaid claim form. In fact, had the bill been submitted with the correct information, the payment from Medicaid would have been the same as that made for the erroneous billing. As indicated earlier, such inadvertant errors in the submission of a Medicaid claim form do not support a finding of fraud on the part of Dr. Boyd. Moreover, such occasional errors in a patient's dental record do not fall below the standard of care in the pratice of dentistry in the Pensacola area. Therefore, the Department has not sustained its burden of proof regarding that portion of Count I of the Amended Administrative Complaint and that portion of Count should be dismissed. Count I of the Amended Administrative Complaint also charges Dr. Boyd with failure to maintain dental records on patient S.C. Importantly, the Board adopted Rule 21G-17.002, Florida Administrative Code, (formerly Rule 21G-17.02, Florida Administrative Code) effective Otober 8, 1985. Prior to this date, there was no rule adopted by the Board of Dentistry addressing any minimum record keeping requirements during the time periods relevant to the Amended Administrative Complaint. 5/ The more convincing evidence presented at the hearing indicates that there has been a considerable change in community and rule standards on minimum record keeping since 1984. In 1984, when S.C. saw Dr. Boyd for dental services, the prevailing standard of care in dentistry, even without a rule, required that a dentist maintain a treatment plan on a patient unless that patient received episodic care. Episodic care of a patient occcurs when a patient comes in on an irregular basis for treatment for a specific problem usually related to pain. A follow-up vist is not necessary since the patient's condition is treated that day. In such a situation, a treatment plan would be an exercise in futility since the dentist has no assurance of seeing the patient in order to obtain the goals of any treatment plan. A review of S.C.`s patient record reveals that patient S.C. was most likely an episodic patient. All of S.C.`s appointments were for acute pain and occurred in a relativly short time span. After these appointments, it does not appear that S.C. was seen by Dr. Boyd again. Since S.C. was most likely an episodic patient of Dr. Boyd's, Dr. Boyd did not violate the prevailing standards of record keeping in regards to S.C. by not completing a treatment plan for patient S.C. Therefore, Count I of the Amended Administrative Complaint should be dismissed. Patient J.D. (2630946789). Count II of the Amended Administrative Complaint alleges that Dr. Boyd is guilty of fraud in the practice of dentistry, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed and was paid for a lower denture for J.D. which was not "delivered" to J.D. In 1983, J.D. was an elderly gentleman who had difficulty with his hearing. Sometime prior to April 12, 1983, Dr. Boyd had ordered a set of upper and lower dentures for J.D. These dentures were eventually made by a dental lab and sent to Dr. Boyd for fitting in the patient's mouth. On April 12, 1983, Respondent attempted to fit the upper and lower dentures in J.D.`s mouth. The upper denture fit but the lower denture was uncomfortable to the patient due the shape of his lower mouth. J.D. was asked to return for refitting of the lower denture but did not hear Dr. Boyd's request. Consequently, J.D. did not make a follow-up appointment and never returned for refitting. J.D. kept the upper denture when he left Dr. Boyd's office. On May 9, 1983, Respondent billed, and was paid by, Medicaid for the upper and lower denture. Dentists are permitted by Medicaid to bill Medicaid for dentures while they are under construction. It is debatable whether a dentist may keep the money paid for such dentures when the patient does not take permanent possession of the dentures as in this case. Here Dr. Boyd was liable for payment to the lab for the construction of the dentures. The dentures were delivered to the patient, but were rejected by him and he did not return for any corrections. Medicaid does not contain any specific guidelines for a Medicaid provider in this situation, and it is not an unreasonable interpretation of the Medicaid manual and forms to expect to be paid by Medicaid for work performed and expenses incurred on a patient's behalf. Petitioner's argument that this episode constitutes fraud or negligence on the part of Respondent is spurious since the entire episode is nothing more than a fight over the interpretation of language in a contract for services between Dr. Boyd and the Department of Health and Rehabilitative Services. As indicated earlier, the Board has no authority to enforce its interpretation of that contract, to which it is not a party, by attempting to impose disciplinary action on a licensee. Moreover, even assuming Dr. Boyd's actions were not within the meaning of the Medicaid contract, these facts only support a conclusion of breach of that contract and do not come close to supporting the allegations of fraud levied against Dr. Boyd in the Amended Administrative Complaint. Therefore, this part of Count II of the Amended Administrative Complaint should be dismissed. Count II of the Amended Administrative Complaint also charges Respondent with poor record keeping in regards to J.D. since J.D.`s patient records do not contain a formal treatment plan. The more convincing evidence demonstrates that the prevailing community standards in the practice of dentistry required some type of "treatment plan." However, that plan need not be a formal plan, but could consist of information from other documents or forms contained within a patient's file which demonstrated the course of action a dentist intended to take with that patient. In J.D.`s case, such information was contained within the preauthorization form sent to Medicaid around February 19, 1983. That form indicated that the course of treatment for J.D. was to fit him for dentures and that the preliminary work had been completed to accomplish that goal. Since, in 1983, the preauthorization form was an adequate substitute for a formal treatment plan, Dr. Boyd is not guilty of poor record keeping in regards to J.D.`s patient record and Count II should be dismissed. Patient M.G. (1506307108). Count III of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed for multiple restorations on teeth ##2, 3, 14, 15, 18 and 30; performed unnecessary scaling and curettage; and claimed a behavior management fee on M.G. Count III also charges Respondent with poor record keeping. Respondent wrote in his records that on April 2, 1983, he restored teeth ##2, 3, 14, 15, 18 and 30 each with three surface restorations. Medicaid paid for the three surface restoration of patient M. G.'s teeth ##2, 3, 14, 15 18 and 30. Dr. Kekich's exam showed that teeth ##3 and 14 had only two surface amalgam restorations and that teeth ##2, 15, 18 and 30 had only one surface amalgam restoration, 10 surfaces less than that claimed by Respondent. Dr. McLeod's did not examine patient M.G. Dr. Roger's exam showed teeth ##2, 3, 14, 15, 18 and 30 with two surface amalgam restorations and teeth ##18, 28 and 29 with one surface amalgam restoration, 6 surfaces less than that claimed by Respondent. However, as indicated earlier in this Recommended Order, the evidence demonstrated that there was no one expert's opinion on the number of tooth surfaces involved in an amalgam which could be considered as a professional standard. In this regard, the exam results relating to one patient are not neceesarily controlling. The exam results for the entire group of patients demonstrates the lack of any true standard of practice in this area. Importantly, a review of the exam results also shows that the experts, including Dr. Boyd, often agreed with the number of surfaces involved in a given amalgam. Without a clear standard, Dr. Boyd cannot be found guilty of violating any of the provisions of Chapter 466, Florida Statutes. Additionally, since the theory followed by Dr. Boyd for determining the number of surfaces involved in a multi- surface restoration had a reasonable clinical basis; in good dental practice, the fact that Dr. Boyd claimed more tooth surfaces were affected by a given multi-surface amalgam than the other experts discovered does not support a conclusion that Dr. Boyd knowingly and deliberately claimed too many surfaces in order to defraud Medicaid. Similarly, the facts do not support a conclusion that Dr. Boyd misrepresented the number of surfaces involved in a multi- surface amalgam. Put simply, the number of tooth surfaces involved in a given multi- surface amalgam is highly debatable. Therefore, those portions of Count III relating to these facts should be dismissed. Respondent also billed and was paid for a behavior management fee for patient M.G. The behavior management problem occurred on M.G.`s second visit during which M.G.`s second molar was surgically extracted. At the time of the second visit, patient M.G. was 17 years old. In order to indicate a management problem had occurred, Respondent put in patient M.G.`s record "management problem". The notation in M.G. `s chart speaks for itself and means that a management problem existed. The notation, although brief, met the standards of practice at the time of M.G.`s second visit. 6/ The HRS Children's Dental Services manual states that a behavior management fee is allowed (when nitrous oxide is not used) to handle a patient under 21 years of age who is either handicapped or presents management problems. There is no specific contractual definition of what constitutes a behavior management problem. Nor is there any Board rule on the subject. However, generally, it is reasonable to interpret the Medicaid contract to mean that a behavior management problem exists when a patient makes it more difficult than usual to treat, or when it takes extra time or effort to treat, or when the patient is being uncooperative. Such behavior management problems can occur on a random basis for inexplicable reasons. The Department's expert in the field of pediatric dentistry testified to a number of generalities about behavior management problems. Significantly, there was no evidence (other than Dr. Boyd's records) regarding M.G.`s actual behavior while in Dr. Boyd's office. Without such evidence there is no way to clearly or convincingly determine whether M.G. was, in fact, not a behavior management problem. Generalities about the type of patient who presents a "normal" behavior management problem simply do not constitute sufficient evidence to demonstrate clearly or convincingly that M.G. was not such a case or was not an exception to the average patient with a behavior management problem. Moreover, such evidence does not shift the burden of going forward with the evidence to Respondent. 7/ Therefore, the portions of Count III relating to these facts should be dismissed. Respondent's records also show that he performed scaling and curettage on patient M.G. Scaling is the removal of hard deposits from teeth through the use of instruments or ultrasound. Scaling is the procedure used to remove calculus. Curettage is the use of a very sharp instrument to remove soft tissue that is inflamed or diseased in order to promote healing. Curettage is not limited to hard tissue. The Medicaid Children's Manual has a series of billing codes relating to scaling and curettage procedures. Code 04220 refers to scaling and curettage, two different procedures. It is reasonable to interpret this code as covering either procedure. The code includes deep cleaning by scaling or deep root cleaning by scaling of the tooth roots supergingival, i.e. deep periodontal root cleaning. Code 04341 is the procedure code for periodontal scaling. Periodontal scaling does not generally involve the root. Respondent testified that he performed deep-periodontal root cleaning on M.G. Deep periodontal root cleaning either falls within the code for scaling and curettage or it is a reasonable interpretation of the Medicaid contract that the billing code for scaling and curettage includes instances where only deep periodontal root cleaning is performed on a patient. Additionally, as indicated earlier, a dentist is required to obtain pre-athorization from Medicaid for scaling and curettage. In this case, Dr. Boyd received such pre-authorization from Medicaid after Medicaid reviewed the Medical documentation, including x-rays, sent by Dr. Boyd for such pre- authorization. It is absolutely ludicrous to now assert that Dr. Boyd is guilty of any falsehoods or fraud based on his billing Medicaid for dental services he performed under code 04220 when Medicaid reviewed the medical information for Dr. Boyd's work and approved payment of the procedure under that code. Therefore, the portions of Count III relating to violations of Sections 466.028(1)(j), (1), (n) or (u), Florida Statutes, should be dismissed. In maintaining M.G.`s patient record, Dr. Boyd followed the community practice of using different colored pens on a treatment plan/tooth diagram to indicate what work a tooth needed. Various types of marks were used in conjunction with the colored pens to indicate the status of the work. Unfortunately, the records introduced into evidence by Petitioner were photocopies of the original records and the colors cannot be determined from this evidence. The treatment plan contained in M.G.`s record shows marks on the tooth diagram located in that treatment plan and the record of treatment is consistent with that diagram. This diagram is also sufficient to justify the course of treatmeet given to patient N.G. Additionally, the pre-authorization form reviewed and approved by Medicaid is sufficient to justify the scaling and curettage done on M.G. In 1983, these records met the standard of practice for record keeping in the Pensacola area. Therefore, the portions of Count III relating to these facts should be dismissed. Patient T.H. (1507902026). Count IV of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed for surgical extractions of four teeth and allegedly only extracted two teeth, double billed Medicaid on multiple composite resin restorations on teeth ##6, 7, 8, 9, 10 and 11; performed unnecessary scaling and curettage; and claimed a behavior management fee on T.H. Count IV also charges Respondent with poor record keeping. Respondent wrote in his treatment plan (undated) for patient T.H. that he surgically extracted teeth ##2, 4, 5 and 31 and that he filled teeth ##6, 7, 8, 9, 10 and 11 with resin on the mesial and lingual surfaces. On June 30, 1983, Respondent billed, and was paid by Medicaid, for the surgical extraction of patient T.H.`s teeth #2, 4, 5 and 31. Ms. Powell billed Medicaid for the four extractions listed above. In preparing the Medicaid bill, she looked at the wrong page in T.H.`s record and mistakenly got the information she placed in the bill for four rather than two extractions from T.H.`s oral examination chart and treatment plan rather than from the page for the record of treatment. The record of treatment does accurately reflect that only two extractions were performed by Respondent. Dr. Boyd was unaware of Ms. Powell's error and therefore could not have formulated any intent to defraud, knowingly misrepresent, file false reports or exploit a patient for financial gain. Therefore, those portions of Count IV relating to these facts should be dismissed. Also, on June 30, 1983, Respondent billed twice and was mistakenly paid twice by Medicaid for restoring the lingual surfaces of teeth ##6, 7, 8, 9, 10, and 11 with resin. Again this bill was prepared by Ms. Powell. It is not unusual that a dentist has to submit a bill twice to Medicaid. The Medicaid manuals indicate that when such a double billing occurs, it will review the bills manually instead of reviewing them by its usual computer review. From this fact, it is reasonable to assume that Medicaid has some procedure for identifying such duplicate bills. Given these facts and the fact that Dr. Boyd was unaware of the double billing or payment in this case, there is nothing in this sequence of events which remotely suggests that Dr. Boyd is guilty of violating any of the statutory provisions in relation to this duplicate bill. Therefore, those portions of Count IV relating to these facts should be dismissed. Respondent also billed and was paid by Medicaid for a behavior management fee on patient T.H. In 1983, T.H. was 18 years old. Except for J.D.`s deposition testimony, T.H. was the only patient out of the eighteen patient's selected for review by Wes Greenwald who actually testified at the hearing. T.H. testified that in 1983 she had a lot of cavities. She does not like shots and hates needles. During her appointment with Dr. Boyd in 1983, she was not given any pain medication. The appointment was very painful, but she did not scream or yell. 8/ She did however moan somewhat loudly. Dr Boyd began his attempt at treatment twice and eventually had to give T.H. a shot for pain twice. T.H. stated she did not ask Dr. Boyd to stop when he performed dental work on her mouth. However, her actions during the appointment led Dr. Boyd to cease his first attempt at treatment. Respondent has no independent recollection of why he would have charged a behavior management fee for patient T.H. 9/ Respondent noted in patient T.H.`s record "management problem". However, T.H.`s record supports Dr. Boyd's contention that T.H. did present a management problem during this visit since he had to begin treatment twice and had to inject T.H. twice during the course of T.H.'s treatment. Additionally, Dr. Boyd's records of T.H. demonstrate that she came in for acute pain. She had bleeding gums when she left due to the two teeth he had extracted and the deep root scaling he had performed on T.H. Her rear molars had been drilled for the surgical extraction. Dr. Boyd prescribed a pain medication and an antibiotic for T.H. Given T.H.`s testimony, her demeanor, the record of treatment in T.H.`s record and the passage of time in this case, the Department has failed to produce clear and convincing evidence that Dr. Boyd committed fraud, knowingly misrepresented facts, filed false reports, or exploited a patient by claiming that T.H. presented a management problem during her appointment in 1983. Therefore, those portions of Count IV relating to these facts should be dismissed. On June 13, 1983, Respondent performed scaling and curettage on patient T.H. As with M.G, Dr. Boyd obtained authorizations from Medicaid based on X-rays of T.H.`s teeth and the preauthorization form sent to Medicaid. Therefore, the same results apply to to the allegations of the Amended Administrative Complaint relating to the scaling and curettage Dr. Boyd performed on T.H. Those portions of Count IV relating to these facts should be dismissed. Finally, Dr. Boyd's records indicate that T.H. was an episodic patient. However, the Department's own expert did not believe that these records were poor. Given the other testimony in this case and the fact that there was Medicaid preauthorization for the scaling and curettage, the evidence did not demonstrate clearly and convincingly that Respondent was guilty of poor record keeping of T.H.`s records. Therefore, those portions of Count IV relating to these facts should be dismissed. Patient J.J. (0031653103). Count V of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he billed twice (1982 and 1983) for surgical extraction of teeth ##20, 21, 22, 23, 24, 25, 26 and 27 and providing a complete lower denture to J.J. Count V also charges Respondent with poor record keeping. Respondent wrote in his records that on October 27, 1982, he surgically extracted teeth ##20, 21, 22, 23, 24, 25, 26 and 27 and that on June 9, 1982, a preauthorization form for a lower denture had been received from Medicaid. Ms. Powell billed Medicaid for the extractions and the lower denture on November 11, 1983. She mistakenly included a bill for the lower denture because the preauthorization form had been returned to Dr. Boyd's office. However, the dentures were never provided to J.J. This middle of the month billing was unusual since Ms. Powell normally prepared all the Medicaid bills at the end of the month. The only time she prepared Medicaid bills in the middle of the month occurred when there were too many Medicaid bills to handle at the end of the month. However, all of the Medicaid bills whenever they were prepared during the month were mailed at the end of the month. The November 11, 1982, Medicaid bill was denied payment by Medicaid. Ms. Powell resubmitted the bill on May 11, 1983. However, in preparing the second bill, Ms. Powell mistakenly put the date of service as May 11, 1983, instead of the original date of service of October 27, 1982 and continued her earlier error of requesting payment for the complete lower denture. This bill was paid by Medicaid. Respondent admits he did not perform any dental services on patient J.J. in 1983. However, this admission is immaterial under the facts as outlined above since Dr. Boyd was not aware of Ms. Powell's mistake and did, in fact, perform the extractions he was billing for. Likewise, Dr. Boyd admits that he did not provide patient J.J. with a lower denture. Again, since Respondent was unaware of Ms. Powell's error he cannot be found to have committed fraud, knowingly filed false reports, misrepresented facts or exploited a patient. Therefore, those portions of Count V relating to these facts should be dismissed. Respondent failed to maintain a formal treatment plan on patient J.J. However, as with the other patients of Dr. Boyd, J.J.`s record contained a preauthorization form and a teeth diagram containing his marks. Both of these documents constitute a treatment plan, including exam and test results, sufficient to meet the standards of practice for record keeping in 1983. Therefore, those portions of Count V relating to these facts should be dismissed. Patient N.L. (1244305103). Count VI of the Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he double billed for multiple surface restorations on teeth ##14, 15, 18, 19, 23, 28, 29, 30 and 31; and performed unnecessary scaling and curettage on N.L. Count VI also charges Respondent with poor record keeping. Respondent wrote in his records that on July 14 and 21, 1983, he restored teeth ##31, 30, 2, 3, 14, 15, 18, and 19 each with three surface restorations and teeth ##28 and 29 each with two surface restorations. Respondent billed for restoring a total of 28 surfaces. On July 16, 1983, Respondent billed Medicaid for restoring patient N.L.'s teeth ##31 and 30 with three surface amalgam restorations and teeth ##28 and 29 with two surface amalgam restorations. As can be seen from its date, the July 16th bill was prepared in the middle of the month. However, Ms. Powell forgot to mark this bill off her master list of bills to be prepared for the month of July. Due to this oversight, Ms. Powell on July 22, 1984, inadvertantly prepared a second bill for the same services and also included a bill for multiple surface restorations on teeth ##2, 3, 14, 15, 18 and 19. Dr. Boyd was unaware of Ms. Powell's error. However, Medicaid caught the double billing on teeth ##29, 28, 30 and 31, and consequently, Respondent was only paid once for those surface restorations. Again, none of these facts supports a finding that Dr. Boyd committed fraud, knowingly filed false reports, made misrepresentations or exploited a patient. Therefore, those portions of Count VI relating to these facts should be dismissed. Dr. Kekich's exam showed that teeth ##30, 2, 3, 14, 15 and 19 had only two surface amalgam restorations and teeth ##31, 29, 28 and 18 had only one surface amalgam restoration, 12 surfaces less than that claimed by Respondent. Dr. McLeod's exam showed teeth ##2, 3, 14, 15 and 19, and 30 had only two surface amalgam restorations and teeth ##18, 28, 29 and 31 had one surface amalgam restoration, 12 surfaces less than that claimed by Respondent. Dr. Roger's exam showed teeth ##2, 3, 14, 15, 19, 30 and 31 with two surface amalgam restorations and teeth ##18, 28 and 29 with one surface amalgam restoration, 11 surfaces less than that claimed by Respondent. However, as indicated earlier in this Recommended Order, the evidence demonstrated that there was no one expert's opinion on the number of tooth surfaces involved in an amalgam which could be considered as a professional standard. In this regard, the exam results relating to one patient are not necessarily controlling. The exam results for the entire group of patients demonstrates the lack of any true standard of practice in this area. Importantly, a review of the exam results also shows that these three experts often agreed with the number of surfaces involved in a given amalgam. Absent a clear standard, Respondent cannot be found guilty of violating any of the provisions of Chapter 466, Florida Statutes. Moreover, since the theory followed by Dr. Boyd had a reasonable clinical basis in good dental practice, the fact that Dr. Boyd claimed more tooth surfaces were affected by a given multi-surface amalgam than the other experts discovered does not support a conclusion that Dr. Boyd knowingly and deliberately claimed too many surfaces in order to defraud Medicaid. Similarly, the facts do not support a conclusion that Dr. Boyd misrepresented the number of surfaces involved in a multi-surface amalgam. Put simply, the number of tooth surfaces involved in a given multi- surface amalgam is highly debatable. Therefore, those portions of Count VI relating to these facts should be dismissed. Respondent's record's show he performed scaling and curettage on patient N.L. on July 14, 1983. The evidence demonstrated that Dr. Boyd obtained authorization from Medicaid to perform the procedure for which he billed. The pre-authorization was based on X-rays sent to Medicaid for their review and approval of the procedure. As with the other patients discussed earlier in this Recommended Order, there was no clear and convincing evidence presented that Dr. Boyd is guilty of any violations of Chapter 466, Florida Statutes, which could arguably have arisen out of the services he performed and billed for in regards to N.L. Also, since there was a pre-authorization form contained in N.L.`s patient records, Dr. Boyd's record keeping met the then standard of practice for the maintenance of patient records. Therefore, those portions of Count VI relating to these facts should be dismissed. Finally, the evidence showed that Respondent had completed a treatment plan for patient N.L. and otherwise appear to meet the standards of practice for the maintenance of patient records in the Pensacola area. Therefore, those portions of Count VI relating to these facts should be dismissed. Patient J.L. (1463142102). Count VII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly inappropriately billed for multiple surface restorations on teeth ##1d, 2d, 9d, 10d, 11d, 12d and 20d; and performed unnecessary scaling and curettage on J.L. Count VII also charges Respondent with poor record keeping. Sometime prior to July 14 ,1983, Dr. Boyd restored teeth ##1d, 2d, 9d, 10d, 11d, 12d and 20d each with three surface restorations. On July 14, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##20d(T), 1d(A) and 2d(B) with three surface amalgam restorations. On July 21, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ## 11d(K), 12d(L), 9d(I) and 10d(J) with three surface amalgam restorations. Dr. Kekich's examination showed that teeth ##20d(T), 1d(A), 10d(J), 11d(K) and 12d(L) had only two surface amalgam restorations and that teeth ##2d(B) and 9d(I) had only one surface amalgam restorations, eight surfaces less than that claimed by Respondent. Dr. McLeod's exam showed teeth ##20d(T), 10d(J), 11d (K), 12D(L), with two surface amalgam restorations and teeth ##2d(B) and 9d(I) with one surface amalgam restorations, 10 surfaces less than that claimed by Respondent. Dr. Rogers did not examine J.L. There is nothing different in the facts and circumstances involving multiple surface restorations to J.L.`s teeth which would cause the result as to these restorations to be different from the result reached regarding other patients. The evidence is insufficient to support a finding that: Dr. Boyd violated any of the statutory provisions of Chapter 466, Florida Statutes, especially those provisions involving a specific intent to defraud or misrepresent. Therefore, those portions of Count VII relating to these facts should be dismissed. The evidence demonstrated that Dr. Boyd maintained a treatment plan on patient J.L. in the form of a diagram. The treatment rendered to J.L. by Dr. Boyd was consistent with this treatment plan. This diagram comported with the standards of practice for record-keeping applicable in 1983. Therefore, those portions of Count VII relating to these facts should be dismissed. Patient S.M. (0813036127). Count VIII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he double billed for multiple surface restorations on teeth ##15, 18, 19, 21, 28, 29, 30 and 31; and performed unnecessary scaling and curettage on S.M. Count VIII also charges Respondent with poor record keeping. On January 30, 1983, Respondent restored teeth ##18, 19, and 20 each with three surface restorations. On February 9, 1983, Respondent restored teeth ##30, 31, 29 and 28 each with three surface restorations. On February 20, 1983 he restored teeth ##2 and 15 each with three surfaces restorations and teeth ##3 and 14 each with two surface restorations. On November 30, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##18, 19, and 21 with three surface amalgam restorations. On December 9 and 20, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##30, 31, 29, 28, and 15 with three surface amalgam restorations. Dr. Kekich's exam showed that teeth ##21, 30, 31, 28 and 15 each had only two surface amalgam restorations and that teeth ##18, 19 and 29 had only one surface amalgam restoration, 11 surfaces less than that claimed by Respondent and paid by Medicaid. No other doctor examined patient S.N. Again, there is nothing different in the facts and circumstances involving multiple surface restorations to S.M.`s teeth which would cause the result as to these restorations to be different from the result reached regarding other patients. The evidence is insufficient to support a finding that Dr. Boyd violated any of the statutory provisions of Chapter 466, Florida Statutes, especially those provisions involving a specific intent to defraud or misrepresent. Therefore, those portions of Count VIII relating to these facts should be dismissed. On November 11, 1983, Respondent's records show he performed scaling and curettage on patient S.M. As with the other instances in which Dr. Boyd performed deep root scaling which was billable under the code for scaling and curettage, Dr. Boyd obtained Medicaid authorization fo the procedure. Likewise, the same factual conclusions are drawn from Medicaid's approval and those portions of Count VIII relating to these facts should be dismissed. Finally, the evidence showed that Dr. Boyd maintained a diagrammatical treatment plan on patient S.M. This diagram met the standards for record-keeping applicable during 1983. Therefore, those portions of Count VII-I relating to these facts should be dismissed. Patient M.M. (827797029). Count IX of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##2, 3, 10, 14, 17, 18, 20, 21, 30 and 31 and extraction of teeth ##16 and 17; performed unnecessary scaling and curettage on M.M.; and billed for a behavior management fee on patient M.M. Count IX also charges Respondent with poor record keeping. Respondent's records for patient M.M. reflected that on September 8, 1983, he surgically extracted teeth ##16 and 17 and that on September 15, 1983, he restored teeth ##31 and 32 with three surface restorations and teeth ##28 and 29 with two surface restorations. M.N.`s patient record also reflected that on September 24, 1983, Dr. Boyd restored teeth ##2, 3, and 19 with three surface restorations and that on October 31, 1983, he restored teeth ##17, 18, 20 and 21 with three surface restorations. Respondent testified that he restored teeth ##2, 3, 4, 5, 12, 13, 14, 15, 17, 18, 20 and 21. Respondent did not surgically extract any of patient N.M.`s teeth. Respondent did not restore tooth #10. Respondent's treatment plan does not indicate any work with regard to teeth ## 17, 18, 20 and 21. Dr. Boyd had obtained authorization from Medicaid for the surgical extraction of teeth ##16 and 17. The authorization form indicated that teeth ##16 and 17 should be surgically extracted. None of the examining dentists' examinations showed extraction of teeth ##16 or 17 or restoration of tooth #10. On September 30, 1983, Respondent billed Medicaid for restoring teeth ##31, 30, 10, 2, 3 and 14 with three surface amalgam restorations, tooth #29 with two surface amalgam restorations, and the surgical extraction of teeth ##16 and 17. Respondent was paid by Medicaid for the restoration of teeth ##31, 10, 2, 3, 9, 14, 29 and the surgical extraction of teeth ##16 and 17. The September 30, 1983, bill was prepared by Ms. Powell. In preparing this bill, Ms. Powell misread the notation for the restoration of tooth #15 as tooth #10. A mistake that is easily understandable given the appearance of Dr. Boyd's notation. The notation for the surgical extraction of teeth ##16 and 17 is not in Dr. Boyd's handwriting. The notation in M.M.'s record was made by Ms. Powell, without Dr. Boyd's knowledge. Ms. Powell believes she made the entry in the wrong chart, but admits that it was her mistake. She also put down the date of service as the date the authorization from Medicaid for the extractions and the scaling and curetttage was received in Dr. Boyd's office. The Medicaid office had advised Ms. Powell to use the date of authorization as the treatment date in her billings to Medicaid. None of these facts support a finding that Dr. Boyd knowingly, willfully or intentionally committed any fraudulent acts or made any misrepresentations in his practice of dentistry. Similarly, these facts do not support a finding that Dr. Boyd improperly took advantage of his patients for his own financial gain. Such violations require the personal participation of the licensee, in the prohibited activity or at least some showing that the licensee was engaged in some conspiracy with the main perpetrator. No such evidence was produced in this case. Therefore, those portions of Count IX relating to these facts should be dismissed. On October 31, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##17, 18, 20 and 21 with three surface amalgam restorations. Dr. Kekich's exam showed that teeth ##30, 3 and 14 had only two surface amalgam restorations add that teeth ##31, 29, 2, 17, 18, 20 and 21 had only one surface amalgam restoration, 9 surfaces less than that claimed by Respondent. Dr. Kekich did not include the surface restorations performed on tooth #15. Dr. McLeod's exam showed teeth ##2, 3, 14, and 30 had only two surface amalgam restorations and teeth ##17, 18, 20, 21, 29 and 31 had only one surface restored, 8 surfaces less than that claimed by Respondent. Dr. McLeod did not include the surface restorations performed on tooth #15. Dr. Roger's exam showed that tooth #14 had three surfaces filled, teeth ##3, 18 and 31 had two surface restorations, teeth ##2, 17, 20, 21, and 29 had one surface filled, 8 surfaces less than that claimed by Respondent. Dr. Rogers did not include the surface restorations performed on tooth #15. The discrepancy among the experts on the number of surfaces involved in a multi-surface amalgam has been previously addressed in this Recommended Order. There is nothing in these facts which suggests a different result should obtain in this Count of the Amended Administrative Complaint. Therefore, those portions of Count IX relating to these facts should be dismissed. Respondent's records show that he billed and was paid behavior management fees on September 8, 1983, and September 15, 1983; for patient M.M. At the time the behavior management problem occurred, M.M. was 19 years old and was in Dr. Boyd's office for a pulpotomy. A pulpotomy is a very painful procedure. Respondent noted in patient M.M.`s records `management problem". The notation in M.M.`s chart speaks for itself that a management problem existed. The notation, although brief, met the standards of practice at the time of M.M.`s second visit. As indicated earlier, the HRS Children's Dental Services manual states that a behavior management fee is allowed (when nitrous oxide is not used) to handle a patient under 21 years of age who is either handicapped or present management problems. There is no specific contractual definition of what constitutes a behavior management problem. Nor is there any Board rule on the subject. However, generally, it is reasonable to interpret the Medicaid contract to mean that a behavior management problem exists when a patient makes it more difficult than usual to treat the patient, when it takes extra time or effort to treat, or when the patient is being uncooperative. Behavior management problems can occur on a random basis for inexplicable reasons. The Department's expert in the field of pediatric dentistry testified to a number of generalities about behavior management problems. Significantly, there was no evidence (other than Dr. Boyd's records) regarding M.M.`s actual behavior while in Dr. Boyd's office. Without such evidence there is no way to clearly or convincingly determine whether M.M. was, in fact, not a behavior management problem. Generalities about the type of patient who presents a "normal" behavior management problem simply do not constitute sufficient evidence to demonstrate clearly or convincingly that M.M. was not such a case or was not an exception to the average patient with a behavior management problem. Moreover, such evidence does not shift the burden of going forward with the evidence to Respondent. Therefore those portions of Count IX relating to these facts should be dismissed. Respondent's records indicate he performed scaling and curettage on all four quadrants of patient M.M.`s mouth on September 8, 1983. As with the other instances in which Dr. Boyd performed deep root scaling which was billabe under the code for scaling and curettage, Dr. Boyd obtained Medicaid authorization for the procedure. Likewise, the same factual conclusions are drawn from Medicaid's approval and those portions of Count IX relating to these facts should be dismissed. Respondent's treatment plan for patient M.M. is inconsistent with his record of treatment. However, there is nothing in the testimony or any rule which indicates that a treatment plan is required to be consistent with the record of treatment. In fact, it is not unusual for the treatment plan to differ from the record of treatment since frequently once a procedure is begun the dentist wiil discover that additional work or less work needs to be done. The treatment plan is simply a plan. Plans can be and are subject to change. In all other respects patient M.M.'s records comport with the standards of practice for the maintenance of such records as existed in 1983. Therefore, those portions of Count IX relating to these facts should be dismissed. Patient L.A.P. (1827827114). Count X of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly double billed for multiple surface restorations on teeth ##30 add 31; billed for multiple surface restorations on teeth ##3, 19, 20, and 21; and performed unnecessary scaling and curettage on L.A.P. Count X also charges Respondent with poor record keeping. Respondent wrote in his records that cn February 23, 1984, he restored teeth ##30, 31, each with three surface restorations and restored teeth ##18, 19 and 20 each with three surface restorations. Respondent also wrote in his records that on February 5, 1984, he restored tooth #21 with two surface restorations and on March 28, 1984, he restored teeth ##14 and 3 each with three surface restorations. On February 23, 1984, Respondent billed, and was paid by, Medicaid for restoring teeth ##30 and 31 with three surface amalgam restorations. On March 28, 1984, Respondent billed, and was paid by Medicaid for restoring teeth ##18, 19, 20 and 3 with three surface amalgam restorations and tooth #21 with two surface restorations with a service date of March 5 and 20, 1984. On March 30, 1984, Ms. Powell submitted another claim for the restoration of teeth ##18, 19, 20 for three surface amalgam restorations and tooth #21 for two surface amalgam restorations with a service date of March 5 and 20, 1984. She had forgotten that the earlier claim had been paid. Dr. Boyd was unaware of Ms. Powell's duplicate billing. However, the evidence does not demonstrate that this latter claim was paid. Even assuming that it had been paid, such double billing does not support a finding that Dr. Boyd committed any violations of Chapter 466, Florida Statutes, especially since Medicaid supposedly had a procedure for identifying such duplicate claims and had caught such duplicate bills in the past. Such easily committed mistakes simply do not add up to a factual finding of willful fraud, misrepresentation or exploitation on the part of Respondent. Therefore, those portions of Count X relating to these facts should be dismissed. Dr. Kekich's examination showed that teeth ##30, 19, 20 and 3 had only two surface amalgam restorations and that teeth ##31, 18 and 21 had only one surface amalgam restoration, 8 surfaces less than that claimed by Respondent. Dr. McLeod's exam showed teeth ##3, 20, and 30 had two surface restorations, and teeth ##18, 19, 21, and 31 had one surface restoration, 12 surfaces less than that claimed by Respondent. Dr. Roger's exam showed teeth ##3, 18, 19, and 30 had three surface restorations, teeth ##20 and 31 had a two surface restoration and tooth #21 had a one surface restoration, 5 surfaces less than that claimed by Respondent. As with the other Counts involving multi-surface restorations, these facts do not establish any violations of Chapter 466, Florida Statutes, by Dr. Boyd. Therefore, those portions of Count X relating to these facts should be dismissed. Respondent's records show he performed scaling and curettage in all four quadrants of patient L.A.P.`s mouth on March 20, 1984. Dr. Boyd obtained authorization from Medicaid for the procedure he billed for. Again, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count X relating to these facts should be dismissed. Like with M.M., Respondent's record of treatment is not consistent with his treatment plan. Again there is no requirement that such records be consistent. L.A.P.`s records, otherwise, comport with the standard of practice for record keeping in 1984. Therefore, those portions of Count X relating to these facts should be dismissed. Patient N.P. (0032545100). Count XI of the Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##2, 3, 4, 14, 16 and 19; and performed unnecessary scaling and curettage on N.P. Count XI also charges Respondent with poor record keeping. Respondent wrote in his records that on May 25, 1982 he restored teeth ##13, 16, 19, 2, 3, 4 and 31 each with three surface restorations. On May 25, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##13, 16, 19, 2, 3, 4, and 31 with three surface amalgam restorations. Dr. Kekich's examination showed that teeth ##13, 19, 2, 3, and 4 had only two surface amalgam restorations; and that tooth #31 had only one surface amalgam restoration and that tooth #16 had not been restored, 10 surfaces less than claimed by Respondent. Dr. McLeod's exam showed teeth ##2, 3, 4, 13, and 19 had two surface restorations and tooth #31 had a one surface restoration and tooth #16 had not been restored, 10 surfaces less than that claimed by Respondent. As with the other Counts involving multi-surface restorations, these facts do not establish any violations of Chapter 466, Florida Statutes, by Dr. Boyd. Therefore, those portions of Count XI relating to these facts should be dismissed. Respondent billed and was paid a behavior management fee for patient N.P. The behavior management problem occurred during N.P.'s visit on May 25, 1983. At that time N.P. was 18 years old. N.P. had been brought in by his parents to receive all the dental work he needed during the one office visit. The patient was in pain. The molar was surgically extracted. The work Dr. Boyd performed on the patient took most of the evening and involved all four quadrants of the mouth. Given these facts, it is more likely than not that N.P. presented a management problem, for which Dr. Boyd was entitled to bill Medicaid. Respondent noted in patient N.P.`s records "management problem". The notation, although brief, met the standards of practice at the time of N.P.`s visit. Therefore, those portions of Count XI relating to these facts should be dismissed. Respondent's records reflect that, on May 25, 1983, he performed scaling and curettage on patient N.P. in all four quadrants of the patient's mouth. Dr. Boyd obtained authorization from Medicaid for the procedure he billed for. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XI relating to these facts should be dismissed. From the records it appears that N.P. was an episodic patient or was at least a patient on whom it was useless to develop a complete treatment plan since N.P. did not maintain any regular dental care. N.P.`s records did contain a completed tooth diagram and an authorization form for some of the work performed by Dr. Boyd. Since this information is present in N.P.`s records and given the episodic nature of N.P.`s dental care, it cannot be found that Dr. Boyd's records fell below the standard of practice for the maintenance of patient records in effect during 1983. Therefore, those portions of Count XI relating to these facts should be dismissed. Patient L.P. (1244305138). Count XII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##5, 12, 14, 19, and 30; and failed to keep adequate patient records. Respondent wrote in his records that on February 1, 1983, he restored teeth ##5, 12, 14, 30, and 19 each with three surface restorations. On July 21, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##5, 12, 14, 30 and 19 with three surface amalgam restorations. Dr. Kekich, Dr. McLeod and Dr. Roger's examination showed that teeth ##14, 30 and 19 had only two surface amalgam restorations and that teeth ##5 and 12 had only one surface amalgam restoration, seven surfaces less than that claimed by Respondent. As with the other patient's who had multiple surface restorations, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XII relating to these facts should be dismissed. Respondent's records on patient L.P. contained a completed tooth diagram, patient history and treatment record. L.P.`s records, otherwise, comport with the standard of practice for record keeping in 1983. Therefore, those portions of Count XII relating to these facts should be dismissed. Patient B.J.R. (1000702022). Count XIII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for surgical extraction of teeth ##18, 20, 21, 22, 23, 24, 26, 27, 28, 30 and 31 which he did not perform; and the failure to provide a complete lower denture. Count XIII also charges Respondent with poor record keeping. After examination of B.J.R, Respondent prepared a treatment plan on patient B.J.R. indicating that the patient needed surgical extraction of teeth ##30, 31, 28, 27, 26, 24, 23, 22, 21, 18 and 20 and the provision of a complete upper and lower denture. However, the planned work was never performed. On April 15, 1983, Ms. Powell billed Medicaid for the surgical extraction of teeth ##30, 31, 28, 27, 26, 24, 23, 22, 21, 18 and 20: and the provision of a complete lower denture. Respondent also billed for a complete upper denture, however it was denied by Medicaid. In preparing this bill, Ms. Powell inadvertently looked at the treatment plan for patient B.J.R. As a consequence she put incorrect information in the April 15, 1983, bill. Dr. Boyd was unaware of Ms. Powell's error. These facts do not establish that Dr. Boyd committed any violations of Chapter 466, Florida Statutes. There was no showing that Dr. Boyd had any knowledge of the incorrect billing statement. Therefore, those portions of Count XIII relating to these facts should be dismissed. As indicated earlier, Respondent did not perform any dental work on patient B.J.R. In 1983, there was no statutory or rule which required recordation of information that work was not performed be included in a patient's record. Since no dental work was performed, Respondent was not required to maintain a record of treatment for patient B.J.R. B.J.R.`s records, otherwise, comport with the standard of practice for record keeping in 1983. Therefore, those portions of Count XIII relating to these facts should be dismissed. Patient J.S. (001286396115). Count XIV of the Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on tooth #2d which were not performed add surgical extraction of teeth ##4d, 5d and 7d that were not extracted; and poor record keeping on patient J.S. Respondent wrote in his records that on September 2, 1983, he filled tooth #2d with a three surface amalgam restoration. Respondent billed, and was paid by Medicaid for restoring tooth #2d with a three surface amalgam restoration. Respondent's records show that on July 25, 1983, he surgically extracted patient J.S.`s teeth ##4d and 5d. On July 25, 1983, Respondent billed, and was paid by, Medicaid for surgically extracting teeth ##4d and 5d. Respondent's records show that on April 7, 1984, he surgically extracted tooth #7d. Respondent billed, and was paid by, Medicaid for extracting tooth #7d. Dr. Kekich and Dr. McLeod's examinations showed that tooth #2d had only two surface amalgam restorations, one surface less than that claimed by Respondent. Dr. Roger's exam showed tooth #2d had a three surface restoration. Clearly, these facts do not demonstrate that Respondent committed any violations of Chapter 466, Florida Statutes. Therefore, those portions of Count XIV relating to these facts should be dismissed. Dr. Kekich testified that teeth ##2d, 5d, and 7d were missing but not extracted. However, there is no credible way for a dentist to come to such a conclusion when the teeth are not present in the patient's mouth. Therefore, Dr. Kekich's opinion is not given any weight and the evidence did not otherwise demonstrate that teeth ##2d, 5d and 7d were not surgically extracted. Therefore, those portions of Count XIV relating to these facts should be dismissed. Respondent admits that it was an oversight on his part that a treatment plan for patient J.S. was not prepared. J.S. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. However, since this was a rare instance in Dr. Boyd's performance, the failure to create such a treatment plan would be a minimal violation requiring only minor discipline. Patient A.S. (0032748108). Count XV of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##2, 3, 15, 17, 18, and 31; and performed unnecessary scaling and curettage on A.S. Count XV also charges Respondent with poor record keeping. Respondent wrote in his records that on March 31, 1983, he restored patient A.S.'s teeth ##2, 3, 15, 18, 19 and 31 each with three surface amalgam restorations and tooth #20 with a two surface restoration. On May 31, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##15, 17, 31, 2, and 3 with three surface amalgam restorations and tooth #20 with two surface amalgam restorations. Dr. Kekich's exam showed that teeth ##18, 19, and 3 had only two surface amalgam restorations and that teeth ##15, 31, 2, and 20 had only one surface restoration, 7 surfaces less than that claimed by Respondent. Both Dr. McLeod and Dr. Roger's exams showed tooth #3 with a two surface restoration and teeth ##2, 15, 18, 19, 20 and 31 with one surface restoration, 9 surfaces less than that claimed by Respondent. As with the other patient's who had multiple surface restorations, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XV relating to these facts should be dismissed. Respondent's records show that he performed scaling and curettage on patient A.S. in all four quadrants of the patient's mouth on May 24, 1983. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XV relating to these facts should be dismissed. Respondent admits that it was an oversight on his part that a treatment plan for patient A.S. was not prepared. A.S. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. The failure to create such a treatment plan would be a minimal violation requiring the only minor discipline. Patient K.S. (0882865102). Count XVI of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##1, 4, 16, 17, 30 and 32; and performed unnecessary scaling and curettage on K.S. Count XVI also charges Respondent with poor record keeping. Respondent wrote in his records that on November 19, 1980, September 7, 1980, and March 22, 1983, he filled teeth ##30 and 33 each with three surface amalgams restorations. Respondent's records also show that on March 22, 1983, he filled teeth ##1, 16, 17 and 32 with three surface restorations. Respondent billed Medicaid for restoring teeth ##30, 32, 1, 16 and 17 with three surface amalgam restorations on March 22, 1983. Respondent was paid by Medicaid for the restoration of teeth ##1, 16, and 17. Payment for the restorations to teeth ##30 and 32 was denied by Medicaid. On September 30, 1983, Respondent billed, and was paid by, Medicaid for restoring tooth #4 with three surface amalgam restorations. Dr. Kekich's examination showed that teeth ##30, 32, and 17 had only two surface amalgam restorations and, that teeth ##1, 16 and 4 had only one surface amalgam restoration, nine surfaces less than that claimed by Respondent and seven surfaces less than for what he was paid. Both Dr. McLeod and Dr. Roger's exams showed teeth ##17, 30 and 32 had two surface restorations and teeth ##1, 4, and 16 had one surface restoration, nine surfaces less than that claimed by Respondent and seven surfaces less than for that he was paid. As with the other patient's who had multiple surface restorations, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XVI relating to these facts should be dismissed. Respondent's records of patient K.S. show that on February 6, 1982, and on March 22, 1983, on the patient's first and second visit, Respondent performed scaling and curettage. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XVI relating to these facts should be dismissed. Like with M.M., Respondent's record of treatment is not consistent with his treatment plan. Again there is no requirement that such records be consistent. K.S.`s records, otherwise, comport with the standard of practice for record keeping in 1980 through 1983. Therefore, those portions of Count XVI relating to these facts should be dismissed. Patient M.W. (1826211101). Count XVII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##18, 20, 28, 29 and 31; performed unnecessary scaling and curettage on M.W.; and billed for a behavior management fee on patient M.W. Count XVII also charges Respondent with poor record keeping. Respondent wrote in his records that on June 22, 1983, he restored teeth ##28, and 31 each with three surface amalgam restorations and tooth #29 with two surfaces. Respondent billed, and was paid by, Medicaid for restoring teeth ##28 and 31 with three surface amalgam restorations and tooth #29 with two surface amalgam restorations. Respondent's records show that on June 29, 1983 Respondent restored three surfaces on teeth ##18 and 20. On June 29, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##18 and 20 with three surface amalgam restorations. Dr. Kekich, Dr. McLeod, and Dr. Roger's exams showed that teeth ##18, 20, 28, 29 and 31 had only one surface amalgam restorations, nine surfaces less than that c1aimed by Respondent. As with the other patient's who had multiple surface restorations and for the reasons stated earlier in this Recommended Order, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XVII relating to these facts should be dismissed. Respondent's records show that on June 22 and 23, 1983, Respondent experienced a behavior management problem with patient M.W. At that time, M.W. was 18 years old. Respondent billed and was paid by Medicaid a behavior management fee for June 15 and 22, 1983 for patient M.W. Respondent noted in patient M.W.`s record "management problem". The notation, although brief, met the standards of practice at the time of M.W.'s visit. Therefore, those portions of Count XI relating to these facts should be dismissed. Respondent performed scaling and curettage on all four quadrants of patient M.W.'s mouth on June 15, 1983. As with other patients involved in this case who had scaling and curettage performed on them by Respondent, these facts do not support any violation of Chapter 466, Florida Statutes, by Respondent. Therefore, those portions of Count XVII relating to these facts should be dismissed. Respondent admits that it was an oversight on his part that a treatment plan for patient M.W. was not prepared. N.W. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. The failure to create such a treatment plan would be a minimal violation requiring only minor discipline. Patient K.W. (1608709027). Count XVIII of the Amended Administrative Complaint charges Respondent with Medicaid fraud, filing a false report, making untrue, deceptive or fraudulent statements in the practice of dentistry, and exploiting a patient for financial gain because he allegedly billed for multiple surface restorations on teeth ##18, 20, 21, 23 and 28; and billed for a behavior management fee on patient K.W. Count XVIII also charges Respondent with poor record keeping. Respondent wrote in his records that on June 21, 1983, he restored teeth ##28 and 23 each with three surface restorations. Respondent's records show that on June 28, 1983, Respondent restored teeth ##20, 18 and 21 with three surface restorations. Respondent billed, and was paid by, Medicaid for restoring teeth ##28 and 23 with three surf&ce amalgam restorations. On June 28, 1983, Respondent billed, and was paid by, Medicaid for restoring teeth ##20, 18 and 21 with three surface amalgam restorations. Dr. Kekich and Dr. McLeod's exams showed that teeth ##20, 18 and 21 had only two surface amalgam restorations and that tooth #23 had not been restored, nine surfaces less than that claimed by Respondent. Dr. Roger's exam showed that teeth ##18, 20, and 21 each had three surface restorations and tooth #23 had not been restored, six surfaces less than that claimed by Respondent. As with the other patient's who had multiple surface restorations and for the reasons stated earlier in this Recommended Order, these facts do not support a finding that Dr. Boyd committed fraud, misrepresented facts or exploited his patients. Therefore, those portions of Count XVIII relating to these facts should be dismissed. Respondent's records show that he also charged a behavior management fee for visits on June 21 and 28, 1983, when patient K.W. was 20 years of age. There is no evidence that Respondent did not experience a behavior management problem with patient K.W. The fact that K.W. did not present such a management problem on the first visit to Dr. Boyd's office, when more painful and intensive work was performed, does not support a finding that K.W. did not become a behavior management problem. It is just as likely that a person would act up after a bad experience as before such an experience. Therefore, those portions of Count XVIII relating to these facts should be dismissed. Respondent noted in patient K.W.`s record "management problem". The notation, although brief, met the standards of practice at the time of K.W.'s visit. Therefore, those portions of Count XVIII relating to these facts should be dismissed. Respondent admits that it was an oversight on his part that a treatment plan for patient K.W. was not prepared. K.W. does not appear to be the type of patient that would not require a treatment plan. Therefore, the omission of such a treatment plan is a violation of the standard of practice for maintenance of patient records in effect in 1983. The failure to create such a treatment plan would be a minimal violation requiring the only minor discipline. Count XIX of the Amended Administrative Complaint alleges that Respondent is guilty of violating Subsection 466.028(1) and (y), Florida Statutes, by being guilty of incompetence or negligence in the practice of dentistry on S.C., M.G., N.L., S.M., M.M., L.A.P., N.P., L.P., J.S., A.S., K.S., M.W. and K.W., the fourteen patients on whom Respondent performed amalgam restorations, in that those restorations did not meet the prevailing standards of practice for amalgam restorations. More specifically, Count XIX alleged that Respondent's amalgam restorations were too big, poorly condensed, had undefined margins and numerous high spots. The only expert opinion on this subject which was presented by the Department was by a dentist who had not practiced in over twenty years who had not done any surface restorations in as many years and who had never practiced in the Pensacola area. Such an opinion is not entitled to a great amount of weight. On the other hand, Dr. Boyd's expert has maintained an active practice in the Pensacola area and has performed numerous amalgam restorations on patients, including Medicaid patients. His testimony indicated that Dr. Boyd's dental work met the standard of practice in the Pensacola area. This opinion considerably outweighs the Department's expert's opinion. Therefore, no incompetence or negligence on the part of Dr. Boyd has been established by the evidence and Count XIX should be dismissed. Count XX of the Administrative Complaint alleges that, based on the earlier discussed cases, Respondent has repeatedly violated Subsection 466.028(1)(bb), Florida Statutes, by repeatedly violating other provisions of Chapter 466, Florida Statutes. In this case, the four violations cited for not maintaining proper medical records constitute one violation for purposes of Subsection 466.028(1)(bb), Florida Statutes, and are all of the same type. Therefore, no repeated violations have been by the evidence presented in this case and Count XX should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final Order issuing a letter of reprimand Respondent's license; DONE and ORDERED this 9th day of July, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FTh 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1991.
The Issue The issue in this case concerns whether the Petitioner, H. J. Dental, Inc. (“Petitioner” or "HJD"), is obligated to repay $313,415.44 to the Respondent, Agency for Health Care Administration ("Respondent" or "AHCA") for Medicaid payments that were claimed by and were paid to the Petitioner for services which the AHCA asserts in its audit report were not eligible for payment under the terms of the Medicaid program.
Findings Of Fact At all times material to this case, the Petitioner was an enrolled Medicaid provider, having been enrolled under Provider number 071468200. As an enrolled Medicaid provider, the Petitioner was authorized to provide certain dental services to Medicaid recipients and to bill the Medicaid program for those services. All Medicaid provider agreements, including the one entered into by HJD, contain a specific provision that the provider agrees to abide by the statutes, laws, rules, and policies of the Medicaid Program in connection with the provisions of services to recipients. The "audit period" that is the subject of the AHCA's recoupment effort is January 1, 1998, to December 31, 1998. During this audit period, the Medicaid Program paid the Petitioner $313,415.44 for the dental services that are at issue in this proceeding. The AHCA contends that the entire $313,415.44 is subject to recoupment. On or about March 5, 2000, the AHCA prepared and mailed to HJD a Preliminary Agency Audit Report ("PAAR"). The PAAR advised HJD that the AHCA had "made a preliminary determination that certain claims for which you [HJD] were paid $313,415.44, were for services not covered by Medicaid." The PAAR described the process by which the AHCA had arrived at its audit conclusions and specifically advised HJD of the following specific reasons for the audit conclusion that HJD had been overpaid in the amount of $313,415.44: The documentation submitted for x-ray procedure codes D0220, D0230, D0240, and D0272, whch are not considered to be of diagnostic quality by the Medicaid dental consultant. The Medicaid Dental Coverage and Limitations Handbook states in chapter 2-21, Radiographic Examination: "All radiographs must be of diagnostic quality." Claims for radiographic film that is not considered to be of diagnostic quality are considered overpayments in the sample. You billed and were paid for specific claims in the sample that are not documented as having been actually provided, or that lack sufficient documentation in the recipient's dental records to support the medical necessity for the claims. Claims that lack appropriate documentation are considered overpayments in the sample. The PAAR also described the AHCA's sample methodology (a random sample of 42 Medicaid recipients for whom 306 claims were submitted by HJD), as well as the statistical formula used by the AHCA for cluster sampling. On the last page of the PAAR, HJD was also advised: "Since the findings of our review are provisional, you may submit information that you believe would reduce the amount of improper payments identified." On or about August 18, 2000, the law firm that was then representing HJD mailed to the AHCA a letter responding to the PAAR. The letter of August 18, 2000, criticized the validity of the AHCA's audit methodology and offered to settle the matter for a small fraction of the $313,415.44 sought by the AHCA. The letter of August 18, 2000, did not include any additional information regarding any of the sampled claims that provided the factual basis for the audit conclusions. On or about October 27, 2000, the AHCA issued a Final Agency Audit Report ("FAAR") in this case. The overpayment amount in the FAAR remained the same as in the PAAR, beause HJD did not provide any additional evidence following its receipt of the PAAR. The audit in this case was performed in a manner consistent with the AHCA's established practices and procedures for audits of Medicare Program providers. The audit in this case was performed using accepted and valid auditing, accounting, analytical, statistical, and peer-review methods. During the subject audit period from January 1, 1998, through December 31, 1988, HJD received overpayments from the Medicare Program in the amount of $313,415.44. As of the date of the hearing in this case, HJD has not repaid any of the overpayment amount to the AHCA.
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued in this case concluding that HJD was overpaid by the Medicaid Program in the amount of $313,415.44, and requiring that HJD promptly pay to the AHCA the amount of $313,415.44, plus interest at the statutory rate. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 July, 2004.
Findings Of Fact Respondent Ahmed Elkadi, who holds a license to practice medicine in Florida, No. 0031490, was one of two surgeons (among some half dozen physicians) on the staff of Weems Memorial Hospital in Apalachicola, Florida, in August of 1988. Whether the physicians on staff who were not surgeons had other specialties and, if so, what they were, the proof did not show. A duly licensed 29-bed general hospital, Petitioner's Exhibit No. 7, Weems Memorial had, "on a . . . stat basis," (Fitzgerald Deposition at 13), despite its small size, "24-hour respiratory therapy capability, 24-hour laboratory coverage, [and] 24-hour radiology coverage," (Fitzgerald Deposition at 5), which did not, however, include computed tomographic scanning or magnetic resonance imaging technology, both available only at facilities some 60 or 70 miles away. Continuous cardiac monitoring was available in house. Id. at 16. Weems Memorial had a physician in house 24 hours a day and a registered nurse on duty 24 hours a day, along with "at least one LPN," (Fitzgerald Deposition at 6), and two nurse's aides. Id. On average, Weems Memorial only had five or six inpatients at any one time during 1988. Staff off premises but on call were required to report within 30 minutes of being summoned. Fitzgerald Deposition at 13. On August 22, 1988, Dr. Elkadi admitted A. L. as a patient, in preparation for gastric bypass surgery the following day. A 29-year-old woman, A. L. (who worked as a nurse at the hospital) stood 5 feet 1.5 inches tall and weighed 303 pounds, when admitted. A chest x-ray taken before she was admitted uncovered no abnormalities other than obesity. Because she "was in excess of twice her standard weight for height," (MacGregor Deposition, p.7) and had "blood cholesterol elevation and [elevated levels of] blood triglycerides," Id., p.8, and because of her age, A. L. was an appropriate candidate for gastric bypass surgery, Corwin Deposition. She signed a form consenting to the operation. Roux-en-Y Dr. Elkadi performed the surgery, a "gastric bypass with Roux-en-y gastrojejunostomy," Petitioner, Exhibit No. 2, p. 7, on August 23, 1988. A. L., who was anxious about the impending operation, received Valium as well as anesthesia before the procedure began. While A. L. lay on her back anesthetized, he cut open her abdomen and partitioned her stomach with staples, thus reducing the capacity of her stomach to receive food; and joined the small, newly segregated, upper portion of her stomach directly to the small intestine. In a contemporaneous operative note, Dr. Elkadi described the procedure: . . . . The TA 90 stapler was used twice to proximal gastric from the proximal apply a double staple line across the stomach to separate a small proximal pouch with a capacity of about 30 cc remaining stomach cavity. A loop of in side using inner for was jejunal completed. 14 the the jejunum was pulled up through an opening the transverse mesocolon and anastomosed to side to the proximal gastric pouch a running suture of 3-0 chromic for the layer and interrupted 3-0 silk sutures the outer layer. A naso-gastric tube passed into the distal limb of the loop before the anastomosis was The gastrojejunostomy measured about 12- mm in diameter. The proximal limb of jejunal loop was then disconnected just proximal to the gastrojejunostomy using GIA stapler, and the cut end was anastomosed to the distal limb about 60 cm distal to the also gastrojejunostomy. The GIA stapler was used for the entero-enterostomy supported by a running 3-0 silk suture for the serosal transverse loop layer. The edges of the opening of the mesocolon were sutured to the jejunal . The using a fascia, a of using interrupted 3-0 silk sutures. . . abdominal wall was closed in layers running suture of #1 Dexon for the running suture of #3-0 Dexon for the subcutaneous layer, and a running suture #3-0 Nylon for the skin. . . . Petitioner's Exhibit No. 2. As reported and as is customary, Dr. Elkadi severed the small intestine just above the newly fashioned connection to the "small proximal gastric pouch." Because gastric juices continue to leave the distal stomach and travel through the disconnected intestinal segment, the procedure was not complete until this segment of the jejunum was rejoined to the small intestine lower down. In manipulating the jejunum to accomplish the reconnection, it was necessary to cut and tie off various blood vessels, including tributaries of the mesenteric vein. Dr. MacGregor, one of petitioner's expert witnesses, testified that "[t]he record indicates that [the surgery] was done appropriately." T.15. On deposition, petitioner's counsel asked and Dr. MacGregor answered: Q. It seems to be a normal surgery? A. Right. Q. Except for the amount of time? A. Correct MacGregor deposition 15. The operation took four hours. The other surgeon petitioner called as an expert testified that "probably four hours would be a reasonable time." Corwin Deposition at 12. Petitioner produced no witness who testified that respondent's work in the operating room failed to meet standards of any kind. Sequelae In the wake of operations of this kind, "mortality can be as high as 2.7 to 2.9 per cent at training centers who have documented teams of specialists and post op care specialists." T.15. Complications "tend to be in two major groups . . . pulmonary embolism and infections." Id. The "most important complication of gastric bypass surgery is perforation or leakage," (MacGregor Deposition at 16) which leads to infection. In many hospitals, nursing administration routinely assigns a formal nursing plan for postoperative patients, after consulting with the surgeon. MacGregor Deposition at 15. But practices vary (Corwin Deposition at 13) and the omission of a formal nursing plan altogether "in and of itself . . . is not unusual," (Fitzgerald Deposition at 12) at least in smaller hospitals. No formal, written nursing or contingency plan was drawn up for A. L. Dr. Elkadi did not originally direct care for A. L. "beyond what [staff] would normally do [for] any postoperative surgical patient." Fitzgerald Deposition at 11. A. L. left the operating room at ten before two on the afternoon of August 23, 1988. An hour and 40 minutes later, her pulse rate was 84 and her respiration was 28. Petitioner's Exhibit NO. 2. At ten o'clock that night, her pulse was 112 and her respiration was 36; and, at or about the same time, her temperature was approximately 97.2o F. A half hour later, with Dr. Elkadi present, A. L. was standing by her bedside and taking a few steps. The next morning she sat up, first on the side of her bed, then in a chair. At half past one on August 24, 1988, she walked to the nursing station, which she "tolerated well." But, after she returned to her bed, she complained of "surgical pain." At six o'clock that evening she walked a short distance in the hall, returned to her room, sat in a chair and, after she had gone back to bed, again complained of "surgical pain." A chest x-ray taken the day after the operation revealed "[s]mall areas of linear atelectasis . . . in the lung bases," Petitioner's Exhibit No. 2, p. 43, which a radiologist attributed to A. L.'s not having taken a full breath. He found that a "full inspiration was not taken during filming," Id., and that the atelectasis was "probably for this reason." Id. On the evening of August 24, 1988, the nursing notes reported "slight drainage of dark green fluid" from the nasogastric tube. Earlier that day, bloody drainage ("scant") was reported for what may have been the first and only time. The last entry in the nurse's notes characterized the drainage as dark brown; "scant amt greenish drainage," Petitioner's Exhibit No. 2, was reported as late as four o'clock on August 26, 1988. Also at four o'clock on the afternoon of August 26, 1988, the nurse's notes reported, "Bowel sounds [were] audible in all 4 quadrants." Petitioner's Exhibit NO. 2. At seven o'clock that evening, according to the same source, A. L. "had small tan colored lo[ose] stool." Id. A blood specimen drawn at nine o'clock on the morning of August 26, 1988, yielded a "WBC" test result of "19.9." Id. at an unnumbered page. The white blood cell count had "c[o]me down to 11,000 on the day of [A. L.'s] admission." Petitioner's Exhibit No. 2, p. 7. On the morning of August 25, 1988, another walk in the hall ended with A. L.'s sitting in a chair. The nurses' notes reported that she was "[t]olerating activity well." Petitioner's Exhibit No. 2. At eleven o'clock that night, "belching incessantly," she complained of back and stomach pain, and a nurse helped her take a walk. She was still up (sitting in a chair) at midnight, when a second walk resulted in "much relief in stomach." Pain and belching persisted, nevertheless, and Dr. Elkadi was called, arriving at ten before one o'clock in the early morning of August 26, 1988. After seeing A. L., respondent ordered an enema and a dose of Vistaril. At quarter past one, she was pushing on her stomach to relieve gas pains. The nurses' notes reported that she was "extremely anxious," and Dr. Elkadi prescribed five milligrams of Valium. She continued to belch, and Dr. Elkadi was notified of her distress and anxiety at three o'clock in the morning. After she received another five milligrams of Valium (presumably at Dr. Elkadi's behest), she fell asleep. At 5:20 that morning, she was given a third five milligram dose of Valium, and at seven o'clock three milligrams more. In each instance, it was administered intravenously by "slow push." Awake by seven, when she complained of abdominal pain, she was given two milligrams of Levodromoran, after walking to and from the nursing station. When the respiratory therapist saw her at nine o'clock, she was sitting in a chair, again complaining of abdominal pain. But an hour later, when she went to the shower, she said she had less gas pain. That afternoon, she rested in bed, sat in a chair, and walked in the hall. The day after the operation, A. L.'s temperature had risen to 100.5o F., and her pulse had reached 128. When her pulse declined on the following day, August 25, 1988, her temperature remained elevated. On August 26, however, her temperature dropped to normal and her pulse leveled off at the low to mid 90s. On August 23, 1988, the day of the surgery, and again on each of the two following days, Dr. Elkadi ordered extra intravenous fluids. On more than one occasion, the nurse's notes reported that intravenous solution was infusing with difficulty, or words to that effect. While a 1500-milliliter per day discrepancy between fluid intake and urine output is to be expected, the discrepancy averaged some 3500 milliliters per day in A. L.'s case, following her surgery. After surgery, she was given morphine in five-milligram doses, intravenously, as needed. The day after the operation, A. L. also received Levodromoran for pain. On August 25, 1988, although she again received both pain-killing medications, she required less morphine. On August 26, 1988, however, in response to complaints of pain, the amounts both of morphine and of Levodromoran she received increased over the previous day's totals. Dr. Elkadi also prescribed Valium and Vistaril; and A. L. received a total of 100 milligrams of the latter, on August 26, 1988, in multiple doses. In addition, Dr. Elkadi prescribed and A. L. received Nubain, an analgesic that, according to Dr. MacGregor, "is a narcotic antagonist." Petitioner's Exhibit No. 1 to MacGregor Deposition. It is therefore possible that Nubain offset the increased dosages of narcotics in whole or in part. The Last Day A. L. awoke at half past six on the morning of August 27, 1988, complained of pain, and received an injection of Nubain. Only 30 minutes later, she complained of "pain between shoulders," but she received no more pain medication, according to the nurse's notes, until five after two that afternoon, when she was given an injection of five milligrams of Valium. (Twelve hours earlier, she had received ten milligrams of Valium.) At seven o'clock on the morning of August 27, 1988, the nurse's notes again reported "good bowel sounds heard in all quad." Id. Early that afternoon, after an enema, according to the nurse's notes, "pt had good results of flatus & sm amt of lg stool." Id. At four o'clock, she "passed some flatus." Id. At quarter of eight that morning, and again at nine, A. L. used a spirometer. Dr. Solman saw her at eight o'clock. She complained of shortness of breath at nine. A chest x-ray taken August 27, 1988, showed "areas of atelectasis in each lung base, somewhat more pronounced on the right side." Id. at 44. At three o'clock that afternoon, she was hyperventilating. When Dr. Loutfi saw her at half past three, her lungs were clear, and the X-ray taken earlier in the day had evidently not yet been seen by a radiologist. At half past four, a nurse gave A. L. ten milligrams of Valium "for relaxation/rest," Petitioner's Exhibit No. 2, and, fifteen minutes later, a "bag to breathe in," which A. L. used for about five minutes. The nurse initialled A. L.'s chart next to a physician's order that concluded: "Valium 10 mg. IV slowly." Petitioner's Exhibit No. 2. Asked on deposition who ordered the Valium, Dr. Corwin testified: And then it says. I can't read what it says. record to Loutfi in far as NAR? I don't know. DR. ELKADI: Dr. Ludwig [sic]. BY DR. ELKADI: Q. All right. In patients having - - MRS. SMALL: I would object for the the questioner testifying. Corwin Deposition at 42. Perhaps Dr. ordered the Valium. The order was not, any event, given by the respondent, as the evidence shows. At quarter past five, the nurse "encouraged [A. L.] to slow/deep breathe." Id. Ten minutes later she found A. L., whom she had last seen sitting on the side of her bed, sprawled across it. Cyanotic around the mouth, she was not breathing. After Drs. Loutfi and Elkadi tried in vain to resuscitate A. L., respondent pronounced her dead, at 6:30 p.m. on August 27, 1988. Cause of Death Unclear Each of the four physicians who testified at hearing or on deposition assigned a different reason for A. L.'s death. Dr. Elkadi reported the following in a discharge summary: The postoperative course during the first 4 occasional the blood of be Patient the The was patient was days was uneventful except for episodes of anxiety, usually related to incisional pain or discomfort caused by NG-tube, and which always responded to sedation or analgesis medication. The oxygenation was measured during several these anxiety episodes and was found to satisfactory with 02 saturation level of 95-97% using the finger tip oxymeter. was walking outside the room already on first postoperative day. By the fourth postoperative day the Foley catheter was removed and she had 2 bowel movements. incision was healing well, and the chest clear to auscultation. On 8/27/88, about 5:20 p.m., the suddenly arrested, and cardiopulmonary resuscitation was carried out. There heart to over an The of considerable airway resistance, and the was in asystole which failed to respond large doses of cardiac drugs. After hour of intensive resuscitative efforts, patient was pronounced dead at 6:30 p.m. course of events was strongly suggestive massive pulmonary embolism. Petitioner's Exhibit No. 2. After the autopsy revealed that the only blood clots in the lungs had formed post mortem, Dr. Elkadi refined his hypothesis, and posited a fat embolus or emboli in the lungs, which, he surmised, degraded into free fatty acids before the autopsy took place, perhaps before death occurred. He testified that free fatty acids produce serotonin, which causes bronchospasms, and he cited resistance the airway offered during the unsuccessful attempt to resuscitate A. L. Ventilation and oxygenation were virtually impossible, even though the endotracheal tube was already in place. Although Dr. Mahoney, the pathologist who performed the autopsy, found a fatty liver, he ruled out a pulmonary fat embolism because he saw no evidence of infection or trauma to the liver (which might have dislodged fat) and because examination of lung and brain tissue (a single section of each) revealed no fat globules. "No intravascular lipid vacuoles were identified in the lung." Petitioner's Exhibit No. 2. On the other hand, "[o]ccasional perivascular lipid vacuoles were seen . . . in the brain section . . . ," Id., indicating fat cells must have passed through the lungs at some point. The autopsy report made no mention of any mechanical blockage or of distension of any part of the gastrointestinal track. Nor was there evidence of alimentary leakage. All sutures held. "Inspection [during the autopsy] of the surgical sites where the surgeon had done anastomotic, reanastomosis of stomach and bowel . . . [showed] these sites were intact and grossly appeared viable." T. 9. Dr. Mahoney listed as a major finding in the autopsy report "[i]schemic enteritis with focal necrosis of the proximal jejunal segment at the entero-enterostomy junction of the Roux-en-y procedure; mesenteric vein thrombosis." Petitioner's Exhibit No. 2. But at hearing he testified, consistently with reported results of microscopic examination, that "major findings at the autopsy . . . [included] a segment of intestine, the jejunal segment, which had undergone a hemorrhagic necrosis." T. 8. Ischemic changes occur when blood supply is insufficient, while hemorrhagic changes are the result of insufficient ability to remove blood. Blood clots blocked veins serving the necrotic tissue. At hearing, Dr. Mahoney concluded "that the most probable cause [of A. L.'s death] was this dead bowel segment essentially causing sepsis." T. 13. Microorganisms penetrating the transmural necrosis caused localized infection outside the bowel or peritonitis, he testified, which led to infection in the blood stream. Septic toxins circulating in the blood caused cardiovascular failure, he theorized. These conclusions rest on autopsy findings of serositis and "approximately 1 liter of cloudy brown fluid with fibrin strands," (Petitioner's Exhibit No. 2) in the abdominal cavity. But Dr. Mahoney did not find "certain types of cells" (T.94) usually found two and a half to three days after peritonitis sets in. In fact, the autopsy findings "are not unusual findings after abdominal surgery without any complication." T.130. Dr. Corwin, one of two surgeons testifying as experts for petitioner, testified that "the autopsy report . . . [contained] essentially no indication of peritonitis." Corwin Deposition at 46. In a report petitioner put in evidence, Dr. Corwin had earlier written that "there really is no evidence of peritonitis." Dr. Corwin wrote, on June 25, 1990, after examining A. L.'s records, "In my opinion the heavy dose of intravenous Valium within the hour before the patient's sudden cardiac arrest almost certainly caused apnea, respiratory shutdown and subsequent to this, the patient suffered a cardiac arrest from which she could not be resuscitated." Petitioner's Exhibit No. 3. Dr. Mahoney testified that the final administration of Valium "may have actually contributed to a respiratory arrest" (T.15) and so to A. L.'s death. A. L. received her last dose of valium 45 minutes before she was last seen alive and 55 minutes before she was found dead. Dr. Corwin conceded that he had ordered Valium for patients in circumstances comparable to A. L.'s over a period of some 17 years, but always, he said, in situations where the patient would be watched, until the effects of the drug wore off. When administered intravenously, Valium has its maximum effect within five minutes. As far as the evidence showed, A. L. did not have an adverse effect to any earlier dose of Valium. For moderate anxiety, the Physicians' Desk Reference (1987 ed.) recommends dosages of "2 mg to 5 mg, I. M. or I. V. Repeat in 3 to 4 hours, if necessary." For severe anxiety, the same reference recommends dosages of "5 mg to 10 mg, I. M. or I. V. Repeat in 3 to 4 hours, if necessary." "Valium is indicated for the management of . . . short-term relief of the symptoms of anxiety." Respondent's Exhibit No. 2. Contraindications are "known hypersensitivity" and glaucoma. Dr. MacGregor, the other surgeon whose opinion petitioner relied on, testified that the "fundamental cause [of A. L.'s death was hypovolemic shock . . . [shock brought on by l]ow blood volume." MacGregor Deposition at 30. When asked, Dr. MacGregor agreed that Valium "may have contributed," id. at 29, to A. L.'s death. But his principal contention was that the focal necrosis created an ileus or physiological obstruction, which caused distension of the stomach and upper gastrointestinal tract which in turn led to a loss of fluid into the lining of the stomach and bowel and ultimately to hypovolemic shock. Recordkeeping Petitioner presented evidence from the same two surgeons on the question whether respondent had adequate medical records while treating A. L. In a letter attached to Dr. Corwin's deposition as an exhibit, he wrote: Did the subject prepare and keep written medical records justifying the course of treatment of the patient, including history, examination and test results? The answer to this question is yes. Deposition of Corwin, Petitioner's Exhibit No. 3. Dr. MacGregor testified that respondent's operative note was "inadequate in terms of . . . [d]etails of sutures and the techniques that were used . . . the instruments used . . . not the number of sutures but the type of sutures and the number of layers." Deposition of MacGregor at 12. But on cross-examination, Dr. MacGregor conceded that "similar operative notes [are] found in many other surgeons' records." Deposition of MacGregor at 35. The hospital records contain a separate, presumably complete list of the surgical instruments Dr. Elkadi used. Although Dr. Elkadi ordered arterial blood gas evaluations, and blood tests specifically to determine oxygen saturation, results of these tests are not in the hospital records, insofar as the hearing officer could discover. Dr. MacGregor testified the results were not in the copy of the records he was furnished. He testified: I think a blood gas was obtained but it's not two helpful normal in the records; and oxygen saturation on occasions. . . . [T]hey would be quite because they might well indicate fairly levels in a patient who has a rapid respiratory rate . . . Deposition of MacGregor at 24. Dr. MacGregor testified that he "would have thought that [it] would have been standard hospital procedure for whoever obtained those, to have recorded them in the record." Deposition of MacGregor at 25.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 25th day of January, 1991, in Tallahassee, Florida. Administrative Hearings 1550 the Administrative Hearings 1991. ROBERT T. BENTON, II Hearing Officer Division of The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399- (904) 488-9675 Filed with the Clerk of Division of this 28th day of January, APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1 through 7, 12, 14, 15, 16, 18, 20, 21, 22 and 28 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 8 and 9, see paragraphs 11 through 28 of the findings of fact. With respect to petitioner's proposed findings fact No. 10, the record showed dosages, before the final dose, of five, five, five, three, ten and five milligrams. With respect to petitioner's proposed finding of fact No. 11, some tests were done; others were not. Petitioner's proposed findings of fact Nos. 13, 19, 23, 24, and 26 pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 17 and 25, the cause of death was not clear. Petitioner's proposed findings of fact Nos. 27 and 29 were not proven. Petitioner's proposed findings of fact No. 31 is immaterial. Respondent's proposed findings of fact Nos. 1, 2 and 3 in Part 1 and 3 in Part 2, have been accepted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4 in Part 1 and No. 10 in Part 3, these matters are not material to the allegations of the administrative complaint. With respect to respondent's proposed finding of fact No. 5 in Part 1 and Part 2, the cause of death is unclear. With respect to respondent's proposed findings of fact Nos. 1, 2 and 8 in Part 3, see findings of fact Nos. 11 through 28. With respect to respondent's proposed finding of fact No. 4 in Part 3, the autopsy report does not reflect this but he so testified at hearing. Respondent's proposed findings of fact Nos. 5, 6, 7 and 9 pertain to subordinate matters. COPIES FURNISHED: Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Ahmed Elkadi, M.D. 236 S. Tyndall Parkway Panama City, FL 32404 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times relevant hereto, respondent, Ronald L. Askowitz, held dentist license number DN 0003884 issued by petitioner, Department of Professional Regulation, Board of Dentistry (DPR or the Board). Dr. Askowitz is a 1960 graduate of the Medical College of Virginia. Since 1965, he has practiced dentistry in the South Dade County area. Presently, he is engaged in the practice of general dentistry in Perrine, Florida. When the events herein occurred in 1984 and 1985, respondent's practice consisted of approximately forty percent Medicaid patients and sixty percent private pay patients. In order to be reimbursed for providing services to Medicaid patients, Dr. Askowitz was required to obtain a Medicaid provider number from the State of Florida and to adhere to then existing regulations. Among other things, respondent had to submit a dental remittance voucher to the Department of Health and Rehabilitative Services (HRS) as a prerequisite to reimbursement. Respondent has conceded that he completed and signed all vouchers himself. After HRS reviewed the voucher, a check would be issued to respondent reimbursing him at the fixed Medicaid rate. 2/ On average, Dr. Askowitz received around $1,000 per month for treating Medicaid patients. He did not differentiate between Medicaid and private pay patients in terms of quality of care. Because of unusually high billings for three surface amalgam restorations which exceeded the normal statewide range, the HRS computer "kicked out" respondent's name for further review by the Auditor General's Medicaid fraud unit. Thereafter, the billing records of thirty-one patients were picked at random and manually reviewed by the unit to ensure their accuracy. Eventually, this sample was reduced to seventeen files. Because of apparent irregularities in the files, an HRS dental consultant and two Medicaid special investigators visited each of the seventeen patients in the Miami area in August, 1985. The consultant performed an examination of the patients' teeth and compared the work he saw with the billings submitted by Dr. Askowitz to verify whether all billed work had actually been performed. Finding that many of the services for which respondent had been paid had not been performed, the consultant concluded that Dr. Askowitz had filed reports he knew to be false, that deceptive or untrue representations in the practice of dentistry had been made, that the patients had been financially exploited, and that respondent had engaged in fraud, deceit or misconduct in the practice of dentistry. Armed with the results of the unit's investigation, the State Attorney thereafter filed an information charging Dr. Askowitz with numerous counts of public assistance fraud. He was arrested on May 16, 1986. On October 17, 1986 respondent entered a plea of nolo contendere to seventeen counts of public assistance fraud. Adjudication was withheld and respondent was placed on five years' probation and required to provide 300 hours of community service. The probation term can be reduced to two years if all special conditions are met. In addition, Dr. Askowitz was required to make a voluntary $15,000 payment to the Medicaid Fraud Control Unit and a $20,000 payment to the Florida Medicaid Program. After the plea was entered, petitioner initiated this proceeding charging respondent with various violations of Chapter 466, Florida Statutes (1985), all of which relate to his billings on sixteen Medicaid patients. In general terms, respondent submitted Medicaid bills for various services rendered on these patients (mainly surface fillings), but in actuality all such services had not been performed. A more complete analysis of these billings is found in petitioner's exhibits 3, 4 and 5 received in evidence. As a result of these claims, Dr. Askowitz received some $3,412 in overpayments during a ten month period. He has not denied his wrongdoing. It is noted, however, that Dr. Askowitz actually saw every patient in question, and that all work actually performed was necessary. In addition, there is no allegation or evidence that Dr. Askowitz performed any work in a negligent or shoddy manner. Finally, the parties have stipulated that there is no issue regarding respondent's competency. At final hearing, respondent stated he was "frustrated" with HRS because he had not been paid for all of the services that he had rendered. Consequently, he filed these claims. He is now sorry he did so, and has paid a dear price for his misdeeds. He described the notoriety surrounding his arrest as having a devastating effect on his practice. Nonetheless, he still desires to continue his practice of dentistry. Indeed, Dr. Askowitz still operates an office, serving primarily patients from the middle and lower income classes. His Medicaid provider number has continued to remain valid, and he is the only dentist in the Perrine area who treats Medicaid patients. He has completed his community service hours by providing free dental care to residents of a drug and alcoholic treatment center. He has no prior disciplinary action against him over a career spanning some twenty-two years. Testimony by other dentists also established that respondent is highly regarded from a professional standpoint, and that he has done a creditable community service by treating numerous patients from the lower income stratum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges, and that his license be placed on probation for three years. DONE AND ORDERED this 21st day of August, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1987.
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.
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
