The Issue The following are the issues presented: Whether Respondent, Leeland ER SVCS Partnership (“Leeland”), is liable to the Agency for Health Care Administration (“AHCA”) for Medicaid overpayments in the amount of $12,377.17, during the audit period of March 1, 2009, through August 31, 2011; Whether Leeland should be required to pay an administrative fine of $2,475.43, pursuant to Florida Administrative Code Rule 59G-9.070(7)(e); and Whether Leeland is liable to AHCA for the agency’s investigative, legal, and expert witness costs pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: ACHA is designated as “the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act,” i.e., the “Medicaid program.” § 409.902(1), Fla. Stat. Among its duties as the Medicaid agency, AHCA is required to conduct audits of medical providers participating in the Medicaid program, and to “recover overpayments and impose sanctions as appropriate.” § 409.913, Fla. Stat. Section 409.913(1)(e) defines "overpayment" to include "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." The Medicaid provider agreement is a voluntary contract between AHCA and the provider. An enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid Program, including the Medicaid provider handbooks incorporated by reference into AHCA’s rules, as well as all federal, state, and local laws pertaining to licensure to receive payment from the Medicaid program. This case involves an AHCA Medicaid audit conducted of Leeland’s paid Medicaid claims as to the dates of service from March 1, 2009, through August 31, 2011, hereinafter referenced as the “audit period.” Leeland was randomly selected for audit and had no prior violations of Medicaid law. Therefore, any sanction imposed on Leeland in this proceeding would constitute a “first offense” under the operative rule discussed in the Conclusions of Law below. During the audit period, Leeland was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA. As an enrolled provider, Leeland was subject to all relevant federal and state statutes, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule. AHCA issued a PAR, dated June 20, 2013, alleging that Leeland was overpaid $200,349.16 for certain claims that in whole, or in part, were not covered by Medicaid. AHCA later issued a FAR, dated August 16, 2013, alleging that Leeland was overpaid $33,111.52 for certain claims that in whole, or in part, were not covered by Medicaid. The FAR further informed Leeland that AHCA intended to impose a fine of $6,622.30 (20% of the total overpayment) as a sanction for violation of rule 59G-9.070(7)(e) and to impose costs pursuant to section 409.913(23). Leeland received the FAR on August 23, 2013. Leeland timely filed a Petition for Formal Administrative Hearing on September 24, 2013. On October 9, 2013, Leeland tendered payment to AHCA in the amount of $33,111.52, as requested in the FAR, to be held in escrow pending the administrative hearing. The FAR set forth the basis for the overpayment determination as follows: Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amounts you were paid and the correct payment for the appropriate level of service is considered an overpayment. The FAR also stated that the overpayment calculation was based on a statistical formula by which a random sample of the claims submitted by Leeland was selected and extrapolated to the total number of claims in order to arrive at the amount of the total overpayment: A random sample of 63 recipients respecting whom you submitted 134 claims was reviewed. For those claims in the sample, which have dates of service from March 1, 2009, through August 31, 2011, an overpayment of $308.96 or $2.30567164 per claim, was found. Since you were paid for a total (population) of 26,060 claims for that period, the point estimate of the total overpayment is 26,060 x $2.30567164 = $60,085.80. There is a 50 percent probability that the overpayment to you is that amount or more. We used the following statistical formula for cluster sampling to calculate the amount due the Agency:[1/] All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $33,111.52 with a ninety-five percent (95%) probability that it is that amount or more. After issuance of the FAR, Leeland provided additional information and documentation to MPI, which conducted a peer review of the new material. AHCA subsequently reduced the alleged overpayments in the sample to $171.38. Overpayments were found on claims involving seven of the 63 recipients.2/ AHCA concluded that this overpayment amounted to 2.45 percent of the total payments of $6,987.99 made to Leeland for the claims in the sample. The overpayment amount of $171.38 was extrapolated to the entire population of claims using the formula set forth above. AHCA concluded that the total amount of overpayments to Leeland for all Medicaid recipients in the population was $12,377.17, with a 95 percent confidence level. This reduction in the alleged overpayment led AHCA to make a proportional reduction in the proposed fine, to $2,475.43. Leeland does not challenge the agency’s conclusion that the actual overpayment found in the sample amounted to $171.38. Leeland does challenge the method by which AHCA used that actual overpayment to extrapolate an overall overpayment amount of $12,377.17 for the entire body of Medicaid claims submitted by Leeland during the audit period. AHCA is required by statute to use an “accepted and valid statistical calculation” to determine Medicaid overpayments. ACHA submitted its audit report and work papers into evidence. To support the validity of the cluster sampling method used in this case, AHCA presented the testimony of Dr. Fred Huffer, a professor in the Statistics Department at Florida State University, as well as the AHCA employees who provided the data to which the formula was applied. Robi Olmstead, supervisor of MPI’s Practitioner Care Unit, testified that Leeland was randomly selected for audit. Once the selection was made, Ms. Olmstead assigned the case to an investigator. Her office applied a computerized claim sampling program to select the recipients and claims to be audited. The program pulled all claims for the provider during the audit period. Ms. Olmstead sorted the claims, selecting only those that were fee-for-service, then generated the “seed” and selected the cluster sample. Ms. Olmstead testified that the program tells her how many recipients should be reviewed to make a statistically valid sample. In Leeland’s case, the program stated that 62.6 recipients should be used, so the number was rounded up to 63. Lisa Robinson, the MPI investigator who handled the Leeland audit, testified that the claim sampling program selected the list of 63 recipients to be audited. Ms. Robinson sent a request for medical records to Leeland. Once Leeland submitted the records for the 63 recipients, Ms. Robinson reviewed the records. The claim sampling program generated a worksheet listing each billed claim for each recipient. Ms. Robinson attached the worksheets to the records and prepared them for the nurse reviewer. The nurse reviewer reviewed and organized the records for a peer review by a physician. After the physician reviewed and determined any disallowed amounts, the records were returned to Ms. Robinson, who entered the disallowed amounts into the claim sampling program to determine the amount of the overpayment. Ms. Olmstead testified that she has no statistical expertise and that she relied on Dr. Huffer to review and validate the results obtained by the claim sampling program. Ms. Robinson likewise claimed no statistical expertise or any real knowledge of how the claim sampling program works. Ms. Robinson simply enters data into the program and accepts the results it generates. Dr. Huffer, who has consulted with MPI since 2004, testified that when he received the overpayment calculation results, he first checked the calculations. Next, he constructed hypothetical populations based on MPI’s sample to test the confidence level of 95 percent asserted in the FAR. Dr. Huffer explained that a confidence level is a probability attached to the correctness of some statement or procedure. The 95 percent confidence level in this case means that if MPI runs its audit procedure repeatedly, the number that it states as the overpayment from a sample of the population will be less than the “true” overpayment in the overall recipient population 95 percent of the time. The “true” overpayment value remains unknown, but the simulations performed by Dr. Huffer lead to a “reasonably confident” conclusion that the assessed overpayment is an underestimate of that “true” value. Dr. Huffer stated that the simplest type of sampling scheme is a simple random sample, in which units are selected at random and audited. He noted that sometimes the units are naturally grouped into clusters, and much sampling effort can be saved by sampling the clusters of units rather than the units individually. In this case, AHCA was interested in auditing a population of claims, but the claims were naturally grouped by recipients. Therefore, to conserve resources, AHCA used single- stage cluster sampling, with each selected resident constituting a cluster of claims to be audited. Dr. Huffer noted the practical advantages of this method: [T]here’s a lot less effort in accessing the records of a smaller number of recipients, and also there’s a lot less effort in making decisions about medical necessity for a small number of recipients versus, say, a large number of recipients. So there’s a lot of savings in sampling effort by doing a cluster sampling based upon clusters, which are the recipients. Dr. Huffer testified that a sample size of 63 was valid, independent of the size of the population from which the sample was taken. He stated that “it is a well-known fact in statistics that it is the sample size which primarily governs the accuracy of the result, not the population size.” He noted, for instance, that a sample size of 35 could be validly used for a population of one million. Dr. Huffer explained that he constructed a hypothetical population that is “like a large scaled-up version of the sample.” He “cloned” every recipient and every claim for all recipients about 208 times to make a hypothetical population of approximately 13,000 recipients. From this population, he sampled 63 recipients at random and performed the same calculation that AHCA did on its sample. He performed the calculation procedure on two million samples of 63 recipients drawn from his hypothetical population. Dr. Huffer’s two million simulations yielded an empirical confidence level of 97.7 percent, meaning that “we’re even more confident in this case that the number we announce as the overpayment is less than the true overpayment . . . in the population.” Dr. Huffer explained the extrapolation of the sample to the population. By taking the $171.38 of total overpayments found in the 134 claims for the population of 63 residents in the sample, MPI derived an average overpayment per sample claim of $1.27.3/ There were 26,060 claims in the entire population. Multiplying the total number of claims by the $1.27 average overpayment yielded a “point estimate” of the total overpayment of a little more than $33,000. Dr. Huffer stated that while the overpayments in the population may be “in the neighborhood” of the point estimate, there is never an expectation that the point estimate will be exactly correct. Every random sample of recipients would yield a somewhat different total. Therefore, a standard error of the overpayment was introduced as an estimate of how far wrong the point estimate might be. The standard error in this case was $12,547.82. The true overpayment could be plus or minus some multiple of the standard error. Dr. Huffer testified that to reach the lower bound of the 95 percent confidence level, MPI subtracted about one and one-half times the standard error from the point estimate to arrive at an overpayment value of $12,377.17. Dr. Huffer concluded that there was “strong evidence” that the true overpayments exceeded $12,377.17, because that figure was an “intentional underestimate.” Counsel for Leeland questioned Dr. Huffer about the validity of the statistically derived overpayment, given that the actual overpayment drawn from the sample, $171.38, was so small compared to the total Medicaid payments for those recipients. Dr. Huffer testified that the 95 percent confidence rate is “totally unrelated” to the magnitude of the actual overpayments. To counter Dr. Huffer’s testimony on the irrelevancy of the size of the actual overpayment to the validity of the sampling method, counsel for Leeland presented a federal Medicare statute, 42 U.S.C. § 1395ddd(f)(3), which provides as follows, in relevant part: Limitation on use of extrapolation A medicare contractor may not use extrapolation to determine overpayment amounts to be recovered by recoupment, offset, or otherwise unless the Secretary determines that— there is a sustained or high level of payment error; or documented educational intervention has failed to correct the payment error . . . . Dr. Huffer responded that the federal statute does not imply that extrapolation is not allowed for statistical reasons. He believed that the reason for the Medicare law’s disallowance of extrapolation in smaller cases could be simply to forgive errors below a certain threshold. Counsel for Leeland offered another example, an “Open Letter to Health Care Providers” issued by the Office of Inspector General of the U.S. Department of Health and Human Services in 2001. The letter sets forth new claims review procedures, including a statement that if the net financial error rate in a discovery sample is below five percent, the provider is not required to perform any further audit work and only the actual identified overpayments must be refunded. Dr. Huffer pointed out that the letter, like the statute, does not question the statistical validity of extrapolation. “They do not give any statistical reason for saying that it would be wrong to proceed in this case. As far as I know, they’re just saying if you [have] a small error rate, we’ll forgive it.” Dr. Huffer agreed that there was not a “sustained or high level of payment error” in this case, but observed that this case was not being decided under the federal Medicare statute. Dr. Huffer opined that the sampling method used in this case was reasonable and comported with generally accepted statistical methods. His opinions and explanation were credible, were unrebutted, and are accepted. Leeland's attempt to undermine Dr. Huffer’s opinions through cross-examination was ineffective and lacked the support of contradictory expert testimony regarding generally accepted statistical methods. AHCA seeks to recover its investigative, legal, and expert witness costs pursuant to section 409.913(23)(a). AHCA has established its right to recover these costs. At the outset of the final hearing, the parties agreed that if AHCA prevailed in the case-in-chief, and was found to be entitled to costs, then this tribunal would retain jurisdiction for the limited purpose of allowing AHCA to document its costs in the manner provided by section 409.913(23)(b).
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Leeland ER SVCS Partnership to repay the sum of $12,377.17 for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks, including interest. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount, and either party may file a request for a hearing within 30 days after entry of the final order to determine the appropriate amounts. DONE AND ENTERED this 11th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2016.
The Issue Whether the Agency for Health Care Administration (Agency or AHCA) is entitled to recover certain Medicaid funds paid to Lee Memorial Health System, d/b/a Lee Memorial Hospital (Respondent or Lee Memorial), for services provided to undocumented aliens: between January 1 through December 31, 2006, as alleged in AHCA’s Amended Final Audit Report, dated July 25, 2014 (DOAH Case 14-4171); and January 1 through December 31, 2007, as alleged in AHCA’s Final Audit Report, dated March 12, 2015 (DOAH Case 15-3271).
Findings Of Fact THE PARTICIPANTS Lee Memorial was, at all relevant times, an enrolled Medicaid provider authorized to receive reimbursement for covered goods and services provided to Medicaid recipients. As an enrolled provider, Lee Memorial’s participation in the Florida Medicaid Program is subject to the terms of the Medicaid Provider Agreement. The Florida Medicaid Program requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to aliens. As indicated, the Agency is the single state agency responsible for administering or supervising the administration of the Florida Medicaid Program (Medicaid). § 409.901(15), Fla. Stat. PRELIMINARY: FLORIDA MEDICAID PROGRAM Section 409.901(16), Florida Statutes, provides that the Medicaid program is “authorized under Title XIX of the federal Social Security Act which provides for payments for medical items or services, or both, on behalf of any person who is determined by the Department of Children and Families, or, for Supplemental Security Income, by the Social Security Administration, to be eligible on the date of service for Medicaid assistance.” The Medicaid program is jointly funded by the federal government and the individual states that have elected to participate in the program, of which Florida is one. Federal payments to the states for a portion of the cost of Medicaid are referred to as federal financial participation (FFP). AHCA administers the Medicaid program. AHCA is authorized to make payments to Medicaid providers for medical assistance and related services under Title XIX of the Social Security Act. However, in order to receive Medicaid assistance, the Department of Children and Families (DCF) must determine the eligibility of applicants for that assistance. Pursuant to section 409.902(1), DCF has adopted Florida Administrative Code Rule 65A-1.715 which addresses Medicaid eligibility for aliens. This rule provides: Aliens who would be eligible for Medicaid but for their immigration status are eligible only for emergency medical services. Section 409.901(10) F.S., defines emergency medical conditions. The Utilization Review Committee (URC) or medical provider will determine if the medical condition warrants emergency medical services and, if so, the projected duration of the emergency medical condition. The projected duration of the emergency medical condition will be the eligibility period provided that all other criteria are continuously satisfied. Emergency services are limited to 30 consecutive days without prior approval. For continued coverage beginning with the 31st day prior authorization must be obtained from the Agency for Health Care Administration (Medicaid Program Office). [Emphasis added]. The eligibility period for alien recipients is also described in rule 65A-1.702, which states: (2) Date of Eligibility. The date eligibility for Medicaid begins. This was formerly called the date of entitlement. The date of eligibility includes the three months immediately preceding the month of application (called the retroactive period). Eligibility for Medicaid begins the first day of a month if an individual was eligible any time during the month, with the following exceptions: * * * (c) Coverage for individuals eligible for the Emergency Medicaid for Aliens program begins the first day of a covered emergency and ends the day following the last day of the emergency medical situation. [Emphasis added]. DCF is performing an administrative function, solely to determine if the alien is eligible to receive medical assistance. DCF does not determine the duration of the emergency medical condition. DCF does not make a clinical medical determination regarding any patient because it does not have medical professionals to verify the information received. DCF has the dates of eligibility, but AHCA determines which bills are paid. AHCA relies on licensed medical physicians to determine the duration of the emergency medical services. Undocumented aliens do not qualify to receive full Medicaid benefits. As detailed in Agency handbooks, the aid is limited to the treatment of an emergency medical condition up to the point that condition has been alleviated. According to section 409.902(2), Medicaid eligibility is restricted to U.S. citizens and lawfully admitted noncitizens who meet the criteria provided in section 414.095(3), Florida Statute.4/ The criteria mean that undocumented or illegal aliens are generally not eligible for Medicaid assistance. All of the claims in dispute in this case involve payments on behalf of undocumented noncitizens who will be referred to herein as "aliens." As an exception to the general rule, episodic eligibility is available to an alien who is either pregnant or seeking "services [which] are necessary to treat an emergency medical condition." § 409.902(2)(b), Fla. Stat. "The eligibility of . . . a recipient [who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services] is limited to the period of the emergency, in accordance with federal regulations." § 409.904(4), Fla. Stat. (emphasis added). An alien is eligible for medical assistance only if he has an "emergency medical condition" requiring "emergency medical services"--and then only for those services "necessary to treat [the] emergency medical condition" that are provided during the "period of the emergency," the conclusion of which terminates the alien's eligibility. The term "emergency medical condition" (EMC) is defined in section 409.901(10)(a) as: A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: Serious jeopardy to the health of a patient, including a pregnant woman or a fetus. Serious impairment to bodily functions. Serious dysfunction of any bodily organ or part. Section 409.901(11) provides the following definition of “emergency services and care”: [M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable laws, by other appropriate personnel under the supervision of a physician, to determine whether an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician which is necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital. Section 409.904(4) provides: A low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services. The eligibility of such a recipient is limited to the period of the emergency, in accordance with federal regulations. Section 409.905(5) has, since 2005, consistently provided that AHCA shall pay for “all covered services provided for the medical care and treatment of a recipient” admitted as an inpatient by a licensed physician to a licensed hospital. However, covered payments can be determined by the patients’ physical condition. AHCA is authorized to “conduct or cause to be conducted . . . reviews, investigation, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, . . . in the Medicaid program and shall report the findings of any overpayments in audit reports as appropriate . . . . Medical necessity determination requires that service be consistent with symptoms or confirmed diagnosis of illness or injury under treatment and not in excess of the patient’s needs.” § 409.913(2), Fla. Stat. Section 409.913(1)(e) defines “overpayment” to mean “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” As found in section 409.913(1)(a)1, “abuse” means “[p]rovider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards of health care.” Further, under section 409.913(5), a Medicaid provider “is subject to having goods and services that are paid for by the Medicaid program reviewed by an appropriate peer-review organization designated by the agency. The written findings of the applicable peer-review organization are admissible in any court or administrative proceeding as evidence of medical necessity or the lack thereof.” AHCA has authority to “adopt any rules necessary to comply with or administer ss. 409.901-409.920 and all rules necessary to comply with federal requirements.” § 409.919, Fla. Stat. Florida Administrative Code Rule 59G-4.160 provides that all enrolled hospital providers must comply with the provisions of the Florida Medicaid Hospital Services Coverage and Limitations Handbook. As found on page 2 through 7 of this handbook: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Dialysis is considered an emergency service. [Emphasis added]. Rule 59G-5.020 provided for the use of the Florida Medicaid Provider Handbook. On page 3 through 22 under the heading, “Emergency: Medicaid for Aliens,” it provides: Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. All claims must be accompanied by documentation of the emergency nature of the service. Exceptions are labor, delivery, and dialysis services. These are considered emergencies and are payable without documentation when the emergency indicator is entered on the claim form. [Emphasis added]. CURRENT DEVELOPMENTS In 2009, the Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), conducted a “Review of Florida’s Medicaid Payments for Emergency Services to Undocumented Aliens” (review). The review was directed to AHCA for the purpose of determining “whether AHCA’s billing for emergency medical services to undocumented aliens in the State of Florida complies with applicable Federal statutes and CMS’ regulations.” One of the review’s findings was that “AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency.” CMS recommended that “AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Federal Fiscal Years 2005, 2006, and 2007 and re-determine allowability of these claims utilizing the required Federal criteria” and that AHCA “promptly implement the necessary system edits so that services provided as emergent care [could] be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs.” In September 2010, the Department of Health and Human Services, Office of Inspector General, published its “Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens” (report). The report described existing internal controls at AHCA that needed to be improved in order to assure that “all claims for services provided to undocumented aliens are for conditions that the State agency defines as emergency services.” RN Ryder explained that AHCA’s internal controls, mainly the computer program, prevented the reviewers from adjusting a claim’s length of stay to the point where the emergency condition had been alleviated. Rather, the computer would only allow for the approval or denial of a claim. AHCA’s response to the report provided: The Agency’s contracted quality improvement organization began reviewing all requests for Medicaid reimbursement of inpatient emergency services for undocumented aliens on July 1, 2010. These reviews determine the point at which the emergency no longer exists, consistent with federal regulations and deny Medicaid reimbursement for the remainder of the inpatient stay. The Agency is also undertaking a retrospective review of all inpatient alien claims from July 2005 through June 30, 2010, to determine point of stabilization. Any payments made in error will be recouped, and the federal share will be adjusted on the Form CMS-64. The retrospective reviews will begin October 1, 2010. In August 2012, health care providers, including Lee Memorial, filed a Petition for Determination of Invalidity of Non-Rule Policy. This rule challenge, known as Bayfront I, ended with the December 12, 2012, Final Order that AHCA’s use of “the ‘point of stabilization’ standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them.” As such, AHCA discontinued reliance on the “stabilization standard.” In October 2014, health care providers, including Lee Memorial, filed a second Petition for Determination of Invalidity of Non-Rule Policy or In the Alternative for Determination of the Invalidity of a Rule. This rule challenge, known as Bayfront II, ended with the April 20, 2015, Final Order5/ that AHCA, having provided notice that it was going to start enforcing it statutes and rules, did not change “an interpretation or way of applying a statute or its rules. It is just starting to enforce them, as they are written, after years of neglecting to enforce them.” See Bayfront Med. Ctr., et al. v. AHCA, Case No. 14-4758, FO at 69 (Fla. DOAH Apr. 20, 2015). PROCESS One method the Agency uses to discover Medicaid overpayments is by auditing billing and payment records of Medicaid providers. Such audits are performed by staff in the Agency's MPI. MPI is responsible for reviewing providers to assure that paid claims for services rendered were in accordance with the applicable rules, regulations and handbook(s). MPI looks to ensure that the provider is enrolled, the recipient is eligible, the service billed is covered, and the service is billed appropriately. As an example: An alien is in need of medical care, emergent or otherwise. The alien applies through DCF to become eligible for medical services, and is deemed eligible. An EMC arises, and the alien immediately presents to a duly enrolled Medicaid Provider, a health care facility of some type.6/ The alien is admitted as an inpatient on day one, and emergency health care services are provided. The EMC is alleviated as of day three, yet the alien remains in the health care facility for ten more days, receiving medical services, but not of the emergent type. The alien is discharged from the facility on day The facility bills the Medicaid program for 13 days of service. It is not uncommon for the alien’s eligibility to be determined after the hospitalization has ended, and the provider is seeking to cover its costs. PEER REVIEW When a claim was presented for peer review, the peer reviewers were directed to base the review on the standards governing emergency Medicaid for Aliens under state and federal laws, rules, and regulations. The peer reviewers had three issues to determine: whether an EMC existed, the length or duration of the emergency services (when the EMC was alleviated), and whether there were sufficient medical documentation/records to perform a medical review of the rendered services. The peer reviewers were all Florida-licensed physicians, either allopathic or osteopathic, who were matched by specialty or subspecialty to the claims they were reviewing. Each physician testified as to his or her medical or osteopathic education, background and training. Petitioner offered each physician as an expert, and each was accepted as such. The physicians were trained by their peer review organization on the statutes and rules regarding emergency Medicaid for aliens. The physicians then applied the standards contained in the statutes and rules with their education, training and experience to determine whether an EMC existed, the date on which the EMC was alleviated, and whether there were sufficient medical records upon which to make those determinations. SPECIFIC CLAIMS TO DOAH CASE NO. 14-4171 Adam Berko, D.O, a Board-certified family practitioner (a/k/a general practitioner), credibly testified regarding the following claim: Claim (Patient) 3, an 18-year-old male, presented to Lee Memorial’s emergency room on December 5, 2006, complaining of shortness of breath, chest pain, body aches and abdominal pain. He was diagnosed with acute renal failure and leukocytosis with bandermia. Patient 3 was discharged from the hospital on December 14, 2006. Dr. Berko credibly testified that Patient 3’s EMC had been alleviated as of December 9, 2006. Mark Kanarek, M.D., a Board-certified pediatric physician credibly testified regarding the following claims: Claim (Patient) 4, an 11-year-old female, presented to Lee Memorial’s emergency room on December 6, 2006, with abdominal pain and emesis (vomiting). It was medically necessary to admit Patient 4. An x-ray was taken which showed a subacute intestinal obstruction secondary to adhesions. A follow-up x-ray on December 7, showed there was a resolution of the small bowel distention. By December 8, Patient 4 was having regular bowel movements, which signified no further obstruction. She remained in the hospital until December 10, 2016; however, when Patient 4’s bowel obstruction was alleviated on the 8th, the EMC was alleviated. Claim (Patient) 21, a four-year-old male with Down’s syndrome presented to Lee Memorial’s emergency room on July 18, 2006, with a fever following a diagnosis of leukemia. It was an emergent condition for which hospitalization was necessary. Patient 21 continued to have fever spikes through July 23, 2006, which placed the child at a continued risk for life-threatening sepsis. The blood cultures returned as negative and the child was fever-free. Patient 21 remained in the hospital until July 26, 2006, however when the patient’s fever broke, on the 23rd, and the blood cultures returned as negative, the EMC was alleviated. Michael Phillips, M.D., a Board-certified internist credibly testified regarding the following claims: Claim (Patient) 5, an 86-year-old female, presented to Lee Memorial’s emergency room on April 11, 2006, with nausea, vomiting and dehydration. Given Patient 5’s age and condition, it was medically necessary to admit her. Patient 5 received IV fluids, which were stopped on April 12, 2006. As such, on April 12, Patient 5’s EMC was alleviated, and she was discharged on April 13, 2006. Claim (Patient) 8, a 31-year-old male presented to Lee Memorial’s emergency room on October 6, 2006, complaining of weakness and dizziness since that morning. Patient 8 was found to have new onset diabetes, after having lost approximately 47 pounds in the preceding four or five months. The admitting diagnosis was “syncope and collapse,” but without mention of a loss of consciousness. There was discussion regarding the signs of the significant weight loss. Patient 8 was discharged on October 12, following his receipt of insulin,7/ oral hypoglycemics8/ and education for his diabetic condition. Patient 8 had “a chronic medical condition that required treatment, but again, it wasn’t something that required immediate emergency care.” There was no EMC. Claim (Patient) 11, a 26-year-old male with a history of testicular cancer, presented to Lee Memorial’s emergency room on August 29, 2006, for his fifth cycle of chemotherapy. Patient 11 was admitted to a regular nursing floor for his scheduled chemotherapy treatment. Patient 11 was discharged on September 4, 2006. Patient 11 did not have an EMC nor did he receive any emergency services; rather, he had a scheduled medical treatment. Claim (Patient) 27, a 43-year-old female presented to Lee Memorial’s emergency room on July 9, 2006, with complaints of nausea, vomiting, diarrhea and chills. She had a two-month history of abdominal pain, nausea, vomiting, and diarrhea, and was diagnosed as having colitis. Patient 27 was admitted to Lee Memorial, had an abdominal scan and was treated with IV infusions. She did not require immediate surgery or any emergency services during the admission. Patient 27 did not receive any emergency services. She was discharged on September 4, 2006. Steve Beiser, M.D., a Board-certified internist credibly testified regarding the following claim: a. Claim (Patient) 13, a 28-year-old male was admitted to Lee Memorial on October 9, 2006, for an elective surgery. Patient 13 underwent an anterior mediastinal germ cell tumor resection and was discharged on October 14, 2006. Patient 13 did not receive any emergency services. Bruce Shephard, M.D., a Board-certified obstetrician and gynecologist, credibly testified regarding the following claim: Claim (Patient) 18, a 23–year-old female, presented to Lee Memorial’s emergency room on March 3, 2006, with complaints of being unable to void or have a bowel movement, abdominal pain, and pelvic pain. She was admitted on March 3, and her EMC presented on March 8, when she underwent surgery. Patient 13 was discharged on March 9. The EMC was alleviated on March 8, 2006. SPECIFIC CLAIMS TO DOAH CASE NO. 15-3271 Dr. Berko credibly testified regarding the following claim: a. Claim (Patient) 7, a 52-year-old male, presented to Lee Memorial’s emergency room on November 30, 2007, with complaints of epigastric pain, anemia and alcohol abuse. During his December 1, 2015, deposition (Petitioner’s Exhibit 21), Dr. Berko testified there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records. Dr. Berko was able to review the material and render his opinion via a January 23, 2016, Case Detail Report (CDR). Although Respondent did not object to the admission of Petitioner’s Exhibit 66, the CDR which contained Dr. Berko’s peer review is hearsay. There was no direct credible testimony regarding Patient 7, and no finding of fact is made with respect to Patient 7. Dr. Kanarek credibly testified regarding the following claims: Claim (Patient) 4, an eight-year-old female, presented to Lee Memorial with bone pain, fever and a refusal to walk on December 26, 2007. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties agreed that Respondent was able to provide the medical records and Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 65, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 4, and no finding of fact is made with respect to Patient 4. Claim (Patient) 12, a 17-year-old male, was admitted to Lee Memorial on January 17, 2007, for a mediport placement, bone marrow biopsy on January 18, and the initiation of chemotherapy. (Patient 12 had been diagnosed with undifferentiated sarcoma with metastasis to the lungs.) There was no EMC for Patient 12, but rather a planned hospitalization for his cancer treatment. Following his chemotherapy, Patient 12 was discharged on January 22, 2007. Claim (Patient) 24, a six-year-old Down’s syndrome male with leukemia, was admitted to Lee Memorial on October 11, 2007, with fever and pancytopenia. He was discharged on October 15, 2007, after he had been fever-free for 48 hours on October 14. Dr. Kanarek determined that Patient 24’s EMC was alleviated on October 14. Claim (Patient) 27, a two-year-old male, was presented to Lee Memorial’s emergency room on August 5, 2007, following a near drowning event which required cardiopulmonary resuscitation. During his January 11, 2016, deposition (Petitioner’s Exhibit 19), Dr. Kanarek testified that there was insufficient documentation to properly review the claim. At the hearing, the parties stipulated that Respondent was able to provide the medical records. Dr. Kanarek was able to review the material and render his opinion via a January 21, 2016, CDR. Although Respondent did not object to the admission of Petitioner’s Exhibit 67, the CDR which contained Dr. Kanarek’s peer review is hearsay. There was no direct credible testimony regarding Patient 27, and no finding of fact is made with respect to Patient 27. Claim (Patient) 40, a seven-year-old male, presented to Lee Memorial’s emergency room on November 26, 2007, with a one- week history of left-sided facial swelling, following a tooth extraction. Although the child had been given oral antibiotics following the tooth extraction, that course of treatment failed, and his facial swelling and pain increased. When hospitalized, Patient 40 was started on IV antibiotics, and by November 28, 2007, his blood culture was negative, he remained afebrile, and his facial swelling had subsided. The EMC was alleviated on November 28, 2007. Patient 40 was discharged on December 10, 2007. Claim (Patient) 44, a 13-year-old male, presented to Lee Memorial’s emergency room on August 13, 2007, with a two and one-half month history of weight loss, increased thirst and urination, and a blood glucose of 534. He was admitted to the hospital, given IV normal saline bolus, started on insulin, and received diabetic instruction. Patient 44 did not present with an EMC; he presented with new onset diabetes. Dr. Kanarek credibly testified that Patient 44 never exhibited any signs of diabetic ketoacidosis, an imminently life-threatening condition, and he never required intensive or emergent care. Patient 44 was discharged on August 17, 2007. Thomas Wells, M.D., a Board-certified surgeon and family practitioner, who engages in emergency medicine, family practice and surgery, credibly testified regarding the following claims: Claim (Patient) 6, a 26-year-old female, was admitted to Lee Memorial on May 14, 2007, for a scheduled gastric cancer surgery. This patient had a medical condition, but there was no evidence that she presented with an EMC. Patient 6 was discharged on May 21, 2007. Claim (Patient) 46, a 20-year-old male, presented to Lee Memorial’s emergency room on June 10, 2007, following a motor vehicle crash. Patient 46 was admitted to the hospital with a traumatic brain injury, bilateral chest trauma, blunt abdominal trauma with liver injury, and multiple bone fractures complicated by cocaine use. His hospital stay was complicated by the surgically repaired wounds opening, and he required additional surgeries. By July 2, 2007, Patient 46’s cardiology workup was completed, his arrhythmia was resolved, his abdominal wound was improving, and he was tolerating food by mouth. Dr. Wells determined that his EMC was alleviated by July 2. Patient 46 was discharged from the hospital on July 7, 2007. Claim (Patient) 50, a 33-year-old male, presented to Lee Memorial’s emergency room on July 13, 2007, with upper quadrant abdominal pain radiating to his back. Patient 50 was admitted and underwent testing protocol. By July 20, 2007, Patient 50’s white blood count had improved, his temperature was improved and his condition was no longer emergent. Dr. Wells determined that the EMC was alleviated on July 20, 2007. Patient 50 was discharged from the hospital on July 21, 2007. Dr. Beiser credibly testified regarding the following claims: Claim (Patient) 9, a 54-year-old male, presented to Lee Memorial’s emergency room and was admitted on September 4, 2007. Prior to the admission, Patient 9 had been non-compliant with his health care provider’s instructions, and he was told to “go to the ER.” Although he came in through the emergency department, there was no EMC to address, or to be alleviated. Rather, Patient 9 was a non-compliant patient who needed to comply with his physician’s directions. Patient 54 was discharged on September 8, 2007. Claim (Patient) 11, a 33-year-old female, presented to Lee Memorial’s emergency room on April 6, 2007, with a recurrent deep vein thrombosis of her left lower extremity. Her condition was an EMC, and she was admitted. Her physician promptly administered anticoagulation medication and her condition improved, so much so that she was walking well and without chest pain or shortness of breath the following day, April 7. She was discharged on April 9, 2007. Dr. Beiser determined her EMC was alleviated on April 8, 2007. Claim (Patient) 15, a 35–year-old male, presented to Lee Memorial’s emergency room on April 7, 2007, following a motor vehicle accident involving alcohol intoxication. Patient 15 had a left ankle contusion and a closed head injury, which on imaging identified a large brain mass. The mass was determined to be a cyst and no emergent intervention was indicated. The following day, April 8, Patient 15 was alert and oriented with no apparent alcohol withdrawal symptoms. Dr. Beiser determined that his EMC was alleviated on April 8, 2007. Claims 17 and 18 involve the same patient over two different hospitalizations. Patient 17/18, a 51–year-old female, presented to Lee Memorial’s emergency room on September 5, 2007, with complaint of abdominal pain after gastric bypass surgery. She was admitted to the hospital and noted to have ascites, jaundice and diabetes. Patient 17/18 was found to have liver failure and bacterial peritonitis. Dr. Beiser determined that the EMC was alleviated by September 11, when Patient 17/18’s abdominal pain had resolved and there was significant improvement in her overall condition. On October 13, Patient 17/18 again presented to Lee Memorial with complaints of abdominal pain for four days’ duration. She was known to have severe liver disease. Her abdominal pain was suspected to be bacterial peritonitis and this EMC was treated. By October 15, Patient 17/18 was found to be afebrile with no abdominal tenderness. Dr. Beiser determined that the EMC was alleviated on October 15, and the patient was discharged on October 21, 2007. Claim (Patient) 31, a 25-year-old male with a history of meningitis, neurosyphilis and underlying human immunodeficiency virus (HIV), presented to Lee Memorial’s emergency room on June 14, 2007, with an acute febrile illness and neck mass. He was admitted to the hospital and started on IV antibiotics, and a neck biopsy was performed. Patient 31 had a complicated hospital stay as he had persistent fevers, headaches, episodes of hypotension, and sepsis. Through treatment, his condition improved and he was discharged on July 3, 2007. Dr. Beiser determined that the EMC was alleviated on June 27, 2007. Claims 33 and 34 involve the same patient over two different hospitalizations. Patient 33/34 is a 67-year-old female who presented to Lee Memorial’s emergency room on May 21, 2007, with an active gastrointestinal bleed and blood loss anemia. She underwent blood transfusions and the anemia was alleviated by May 22. Patient 33/34 was discharged on May 23, 2007. Dr. Beiser determined that the EMC was alleviated on May 22, 2007. Patient 33/34 presented to Lee Memorial on July 5, 2007, with an active gastrointestinal bleed and blood loss anemia. Patient 33/34 underwent blood transfusions and the anemia was alleviated on July 6. Patient 33/34 refused any further medical procedures, and she was discharged on July 8, 2007. Dr. Beiser determined that the EMC was alleviated on July 6, 2007. Claim (Patient) 37, a 27–year-old female, presented to Lee Memorial’s emergency room on October 12, 2007, with complaints of severe abdominal pain. On October 14, her condition was “improved,” and she denied any abdominal pain, nausea or vomiting. Dr. Beiser determined her EMC was alleviated on October 14. Patient 37 was discharged on October 15, 2007. Claim (Patient) 38, a 32-year-old male, presented to Lee Memorial’s emergency room on September 28, 2007, with complaints of excessive thirst and urination, with some slight weight loss and weakness. He was admitted to the hospital for uncontrolled diabetes. Although Dr. Beiser determined that uncontrolled diabetes is not an EMC, Patient 38’s records demonstrated that he had diabetic ketoacidosis, which is an EMC. With insulin, Patient 38’s EMC was alleviated on September 29, 2007. He was discharged on October 1, 2007. Claim (Patient) 49, a 33-year-old male, presented to Lee Memorial’s emergency room on April 30, 2007, with complaints of right mid-lower quadrant abdominal pain with nausea, vomiting and diarrhea for two days prior to presentation. Patient 49 was admitted to rule out appendicitis. Patient 49 was taken to surgery on May 2, 2007, where an appendectomy was successfully performed. He had an uneventful recovery, and Dr. Beiser determined that the EMC was alleviated on May 2, 2007. Patient 49 was discharged on May 4, 2007. Dr. Shephard credibly testified regarding the following claim: a. Claim (Patient) 36, an 18-year–old female, presented to, and was admitted to Lee Memorial on July 14, 2007, at 31 weeks gestation with a heart condition and mild pre-eclampsia. Her medical condition became emergent on July 26, when she experienced congestive heart failure and decreased oxygen levels. She was transferred to the intensive care unit, and she delivered by emergency C-section on July 28, 2007. Patient 36 was extubated on July 29, and her cardiopulmonary status continued to improve. She was discharged on August 3, 2007. Dr. Shephard determined that Patient 36’s EMC started on July 26 and was alleviated on August 2, 2007. RECOUPMENT OF MEDICAID OVERPAYMENTS Based upon the foregoing findings, and the persuasive weight of the evidence presented by the parties, it is determined: As to Patient 3, EMC was not required for this patient subsequent to December 9, 2006; As to Patient 4, EMC was not required for this patient subsequent to December 8, 2006; As to Patient 21, EMC was not required for this patient subsequent to July 25, 2006; As to Patient 5, EMC was not required for this patient subsequent to April 12, 2006; As to Patient 8, none of this patient’s care was required as emergency medical care; As to Patient 11, none of this patient’s care was required as emergency medical care; As to Patient 27, none of this patient’s care was required as emergency medical care; As to Patient 13, none of this patient’s care was required as emergency medical care; As to Patient 18, although admitted on March 3, 2006, the EMC presented on March 8, and Patient 13 was discharged on March 9, 2006; (The following patients were seen in 2007.) As to Patient 7, no finding of fact was made with respect to the care provided; As to Patient 4, no finding of fact was made with respect to the care provided; As to Patient 12, none of this patient’s care was required as emergency medical care; As to Patient 24, emergency medical care was not required for this patient subsequent to October 14, 2007; As to Patient 27, no finding of fact was made with respect to the care provided; As to Patient 40, emergency medical care was not required for this patient subsequent to November 28, 2007; As to Patient 44, none of this patient’s care was required as emergency medical care; As to Patient 6, none of this patient’s care was required as emergency medical care; As to Patient 46, emergency medical care was not required for this patient subsequent to July 2, 2007; As to Patient 50, emergency medical care was not required for this patient subsequent to July 20, 2007; As to Patient 11, emergency medical care was not required for this patient subsequent to April 8, 2007; As to Patient 15, emergency medical care was not required for this patient subsequent to April 9, 2007; As to Patient 17, emergency medical care was not required for this patient subsequent to September 11, 2007; As to Patient 18, emergency medical care was not required for this patient subsequent to October 15, 2007; As to Patient 33, emergency medical care was not required for this patient subsequent to May 22, 2007; As to Patient 34, emergency medical care was not required for this patient subsequent to July 6, 2007; As to Patient 37, emergency medical care was not required for this patient subsequent to October 14, 2007; AA. As to Patient 38, emergency medical care was not required for this patient subsequent to September 29, 2007; BB. As to Patient 49, emergency medical care was not required for this patient subsequent to May 2, 2007; CC. As to Patient 36, emergency medical care was not required for this patient subsequent to August 2, 2007. With respect to both DOAH case numbers, Respondent offered no testimony or evidence to dispute or rebut the testimony on any of the claims presented above. Each expert credibly testified as to when each EMC presented and the date on which each EMC was alleviated. The experts provided the requisite support to both the AFAR and FAR.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order sustaining the Medicaid overpayment in DOAH Case No. 14-4171 as $57,337.71, plus sanctions of $2,500, and costs of $2,062.04. With respect to DOAH Case No. 15-3271, the amount due should be recalculated based on only those claims that were found to be overpayments,9/ and costs of $3,528.41. Based on the oral stipulation announced at the hearing (found on Transcript, page 106), AHCA “remove[d] the claim for sanctions as to the 2007 case[s].” DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 2016
The Issue Whether Petitioner, Agency for Health Care Administration (AHCA or Petitioner), is entitled to a recoupment for a Medicaid overpayment to Respondent, Humane Minority, Inc. (Humane or Respondent), in the amount of $177,581.26.
Findings Of Fact Petitioner is the state agency responsible for administering the Florida Medicaid Program. As part of its duties, Petitioner attempts to recover Medicaid overpayments from Medicaid providers. At all times material to this case, Humane was licensed to provide various health care services to Medicaid recipients under a contract to AHCA as a Medicaid provider. As provider number 255724000, Humane participated in the Medicaid program from January 1, 2005, to February 8, 2006 (audit period). As a Medicaid provider, Respondent was subject to audit. This case arose when the Discovery Unit of Medicaid Program Integrity (MPI) identified that during the audit period Humane billed 1.5 times as much for one week as compared to ten other weeks, which is an indicator of billing irregularities. As a result, the Discovery Unit of MPI recommended a comprehensive audit of Humane. Gary Mosier, a Registered Nursing Consultant employed by AHCA in the bureau of MPI, initiated the audit of Humane after receiving the Discovery Unit’s File #47650 Recommendation memo dated May 19, 2006, referring Humane for a comprehensive audit. On or about June 13, 2006, MPI requested 30 random Medicaid patients' records from Humane’s entire Medicaid patient group for the audit period. Humane complied with the request and supplied records. The submitted medical records included a Certificate of Completeness of Records from Humane stating the documents supplied constituted all of the Medicaid-related records for the 30 patients during the Audit period. After Humane provided the requested medical records to Mosier, he forwarded the records to three physician consultants: Machado, a general practitioner; Edgar, a psychiatrist; and Reisman, an urologist. Each physician consultant reviewed Humane’s records relevant to his area of expertise and filled out agency worksheets detailing why claims should be disallowed. MPI reviewed Humane’s records provided and the worksheets filled out by the three physician consultants and determined that overpayments were made to Humane due to numerous services in whole or in part not being covered by Medicaid, which violated various Medicaid policy guidelines set forth in both the Florida Medicaid Provider General Handbook (General Handbook)1 and the Florida Medicaid Physician Services Coverage and Limitations Handbook (Physician Services Handbook).2 Humane violated policy by providing documentation that supported a lower level of office visit than the one for which Humane billed and received payment. Humane violated policy by billing and receiving payments for some services that were not documented. Humane violated policy by billing and receiving payment for services rendered by a practitioner who was not a member of Humane’s group. Humane violated policy by billing for procedure codes that have time requirements but not documenting the time spent providing the service. Humane violated policy by billing and receiving payment for services performed by another practitioner who was not enrolled in Medicaid at the time the services were rendered. Humane violated policy by billing and receiving payment for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. Humane violated policy by billing for radiology services when the reading and interpretation was done by a radiologist outside of the physician’s group. Humane violated policy and was paid for billing and received payment for portable x-ray services where Humane performed only the technical component and an independent interpreter performed the professional component. Humane violated policy and received payment when Humane did not bill according to the current procedural terminology guidelines in certain instances. On March 13, 2007, MPI issued its Preliminary Audit Report (PAR). The report detailed the Medicaid policy violations, overpayment amounts, and provided Humane the opportunity to submit an explanation or additional documentation demonstrating that some or all of the claims were properly paid. The report also notified Humane that a Final Audit Report (FAR) would be issued identifying the amount of overpayment due. Humane did not respond to the PAR. Consequently, on April 27, 2007, MPI issued a FAR, that included the amount of $177,581.26 that Humane received from Medicaid that was not authorized to be paid. This grand total of $177,581.26 constitutes an overpayment that Humane must return to the agency. A Final Audit Report-Corrected Copy was issued on May 22, 2007, correcting the total amount due.3 In addition to the overpayment amount, Petitioner also seeks a fine in the amount of $3,000.00. The fine is a calculated amount as authorized by rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Humane to repay the Agency for the principal amount of $177,581.26 together with an administrative fine of $3000.00. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 2009.
Findings Of Fact Petitioner Anna Bialek, now deceased, was a recipient of Medicaid payments at Treasure Isle Convalescent Nursing Home in North Bay Village, Florida, until December, 1978, when her case was cancelled due to incomplete financial information. From December, 1978, until July, 1979, she continued to receive care at the same institution but in the status of a private patient. Then, upon a subsequent evaluation of her financial resources, the Department determined that Petitioner was again qualified for assistance until her death. For a period of approximately three years and continuing until June 6, 1979, one Ida Mae Hardy was Anna Bialek's guardian. All parties agree that due to her age and condition, Mrs. Hardy was unable to effectively carry out her duties as guardian. Because of these infirmities, legal counsel for Mrs. Hardy (Ms. Mulligan) undertook the task in November, 1978, of preparing a final accounting on behalf of Mrs. Hardy, obtaining leave for withdrawal of Mrs. Hardy as guardian, and substituting herself in her stead. This action was completed in July, 1979. During the period when Anna Bialek was a private patient at Treasure Isle, it was discovered she had resources totaling approximately $13,900. Of that amount, $10,000 was ordered to be paid to Treasure Isle in July, 1979. The remainder ($3,960) was retained by the guardian for burial purposes. The expenditure of these funds resulted in Anna Bialek again qualifying for Medicaid assistance. However, because the $10,000 paid to Treasure Isle failed to cover the expenses actually incurred in caring for Anna Bialek, Petitioners sought additional compensation under the Three-Month Retroactive Medicaid program to cover the period of April through June, 1979. Petitioners claim that although Anna Bialek had sufficient resources to disqualify her from Medicaid payment during April through June, 1979, such assets were actually unavailable to the ward because of the ineffective recordkeeping of the former guardian, and the concomitant inability of her counsel to provide a prompt accounting of the assets. Respondent contends that despite the problems in handling and arranging the guardianship affairs, Anna Bialek nevertheless did not meet the standards for receiving Medicaid benefits.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioners' application for Retroactive Medicaid payments be DENIED. DONE and ORDERED this 6th day of November 1980, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1980. COPIES FURNISHED: Leonard Helfand, Esquire Department of HRS 401 North West 2nd Avenue, Room 1040 Miami, Florida 33128 L. Rosillo Mulligan, Esquire 525 North West 27th Avenue, Suite 100 Miami, Florida 33125 Roch Carter, Esquire 105 West Michigan Street Milwaukee, Wisconsin 53203
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.
