Findings Of Fact The Respondent, at all times material hereto, has been a dentist licensed in the State of Florida, holding license number DN 0005029. He is engaged in the practice of dentistry in Pensacola, specializing in orthodontics. The Petitioner is an agency of the State of Florida charged with regulating the licensure status, admission to practice and practice standards in the State of Florida. During the period from September 1980 until July 1981, Ms. Wendy Ling became a patient of the Respondent and went to the Respondent's office on a number of occasions during that period of time to receive dental treatment. During the course of her dental treatment involving installation, fitting and maintenance of braces, she became somewhat dissatisfied with the Respondent's services, claiming that he should have spent more time personally with her when she was in his office. Because of her dissatisfaction, she sought the services of another orthodontist, Dr. Trum. When she left the care of Dr. Tarwick and sought the services of Dr. Trum, she owed Dr. Tarwick $140 for services already rendered her for dental care. When Dr. Trum assumed responsibility for her care, he informed her that he would need copies of her dental records. Shortly thereafter, either Dr. Trum, a person in his office or Ms. Ling called Dr. Tarwick's office to seek the records. Dr. Tarwick's financial secretary responded that $140 was still owed on her bill from Dr. Tarwick. Dr. Tarwick refused to forward her records until her bill was paid. She continued to refuse to pay her outstanding bill and the doctor filed a civil action against her in county court and prevailed. The court found that she owed the sum in question but the Respondent accorded she and her husband, a doctor, "professional courtesy" and agreed to discharge the debt for the sum of $80. During the time when he had refused to forward her records prior to her paying her outstanding bill, she complained to the Petitioner regarding this situation. A representative of the Department of Professional Regulation contacted the Respondent and informed him of the legal requirement that he forward records regardless of whether an outstanding bill was due. The Respondent professed ignorance of that provision of the law, was apologetic and hastened to forward her records contending, as he did at the hearing, that he was unaware that it was illegal to withhold forwarding of the dental records pending payment of an outstanding bill for services rendered. Upon forwarding the record to Ms. Ling's new orthodontist, the Respondent charged her a duplication fee of $50 for this service. This resulted in the other count in the Administrative Complaint regarding the reasonableness of the $50 fee for duplication and forwarding of records. The Respondent established without question at the hearing that it cost in excess of $110 to duplicate such records, excluding the Respondent's own time involved. The records are not merely paper reports that must be xeroxed, they include molds and casts of the complaining witness' mouth and/or gums and teeth. Duplication of all these portions of her records is necessary because the professional association, to which the Respondent must belong, requires that he keep a complete set of records for all patients. It was thus unequivocally established that the Respondent's fee for this duplication and record forwarding was less than half of what it actually cost his office to perform. The Respondent quite candidly expressed to the Department of Professional Regulation his ignorance of the legal provision that he not withhold forwarding of records pending payment of outstanding fees and clearly informed the Department, before the Administrative Complaint was ever filed, that he did not dispute that allegation and that he would move quickly to correct the mistake, which he did. Thus, the Respondent went to the hearing in the belief that the only dispute with the Petitioner was the question of the reasonableness of the duplication and forwarding fee for the records. The Petitioner was on notice that the Respondent did not dispute the charge in Count I. At the hearing, however, the Petitioner voluntarily dismissed the count concerning the question of the reasonableness of the duplication and forwarding fee (paragraphs 12 and 13 of Count II of the Administrative Complaint). It is thus obvious that the only true dispute concerning which the hearing was convened was the question of the reasonableness of the duplication and forwarding fee since the department was already aware that the Respondent did not contest Count I concerning the issue of withholding the transfer of patient records pending payment of outstanding fees for services rendered. The Petitioner, however, did not voluntarily dismiss Count II and thus obviate the necessity of a hearing even though it was informed of Respondent's basis for the fee and the necessity for a large expenditure to bring in Witness Benz, who established its reasonableness, and even though it arrived at the decision to dismiss the charge in Count II some days prior to hearing. Therefore, believing that the department was proceeding against him in good faith on the question of reasonableness of the duplication fee, the Respondent hired an accountant to do a cost study of such duplication efforts by his office, whereupon aimed at a figure in excess of $110 for the performance of that service. The Respondent thus expended a substantial amount of money ($1,000) in paying the expert witness to prepare for, attend and testify at the hearing and was not informed by the department that it had chosen prior to the hearing to voluntarily dismiss that count until the convening of the hearing with the previously necessary witness already present. Both the testimony of Dr. Tarwick and the President of the Florida Association of Orthodontists established that it is customary in the profession to withhold duplication and transference of patient records until all fees have been paid and both expressed surprise that this might be illegal. Letters from other orthodontists in other cities were admitted by agreement establishing that this is indeed customary in the profession and not merely an isolated example of aberrant behavior by Dr. Tarwick. Further, it was established by Dr. Tarwick that, given that Ms. Ling's treatment contract ran through October 1982, the slight delay caused in transferring her records to her new doctor, Dr. Trum, caused no adverse effects on her course of treatment and the correction of her dental problem. Dr. Tarwick was unaware that he was violating the statute under which he was charged and did not intentionally do so. In all his conversations with counsel for the department, Mr. Carpino, the only dispute discussed between them concerned the $50 fee. It was the Respondent's belief that he had fully and early informed the department that he did not dispute the charge concerning the withholding of dental records in return for the payment of the outstanding fee.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the evidence in the record, it is, therefore RECOMMENDED: That, in view of the technical, isolated and inadvertent violation of the above authority by the Respondent, which he corrected as soon as he became aware of the violation, a minimal penalty consisting of a private written reprimand should be imposed. DONE and ENTERED this 29th day of December, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of December, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Edward Moore, Jr., Esquire Sherrill, Moore and Hill Post Office Box 1792 Pensacola, Florida 32598 Fred Varn, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent is guilty of misconduct in the practice of dentistry and/or operating a dental office in such a manner that dental treatment provided is below minimum acceptable standards for the community.
Findings Of Fact At all times relevant hereto, Peter Kurachek, Respondent, was licensed as a dentist in Florida and was the owner of American Dental Center, a dental clinic located in Venice, Florida. Commencing in August 1987, Thomas A. Saitta D.D.S., licensed to practice dentistry in Florida, was employed at the American Dental Center as an independent contractor and was so employed at all times relevant hereto. On Friday, April 15, 1988, patient Kim Pierce a/k/a Kim Hendrick entered the American Dental Center complaining of a toothache and was seen by Dr. Saitta. Examination revealed an abscessed tooth for which Dr. Saitta believed root canal therapy was needed. The patient revealed she had no insurance and no money to pay. Nevertheless, Dr. Saitta commenced the root canal, prescribed penicillin for the inflammation, told the patient if the swelling did not subside quickly a serious medical problem would arise and she should then go to the emergency room at the Venice Hospital. The patient Kim Hendrick returned to the dental clinic Saturday, April 16, 1988 and was again seen by Dr. Saitta who gave her a prescription for Keflex for the infection, told her that if the swelling and pain did not subside by evening she should go to the hospital for medical intervention. He also gave her his professional card with his home telephone number she could call for emergency assistance. On the evening of April 16, 1988 at 11:10 p.m. Kim Pierce presented herself at the emergency room at Venice Hospital with a slight temperature, right eye swollen shot and a marked facial cellulitis. The duty emergency room dentist, Dr. John J. Yurosko, an oral and maxillofacial surgeon was called to treat the patient. Dr. Yurosko incised the gum, drained the infected area, advised the patient to continue the Keflex prescribed by Dr. Saitta and to present at his office Monday. After treating the patient Dr. Yurosko telephoned the number for the dental clinic and received no answer. He then, around midnight, from his home called the residence of Respondent whose wife was up and visiting with a neighbor and who answered the telephone. Yurosko asked to speak to Respondent and was told he was in bed asleep. Yurosko asked that Respondent be called to the telephone. When Respondent got on the line Yurosko complained about the patient (Kim) not being able to contact anyone by calling Respondent's office number, as well as Yurosko's failures to get an answer when he called that number. Following his inability to contact the Dental Center and his conversation with the Respondent, Dr. Yurosko, on April 29, 1988, submitted a complaint to the Department of Professional Regulation (Exhibit 4) in which he advised the Department of his involvement with patient Kim Pierce and his inability to contact her treating dentist. During the investigation which followed this complaint the investigator placed several long distance calls from Fort Myers to the number listed for the American Dental Center during the evening hours and received no answer from an answering service or machine. Respondent's witnesses testified that, except for the short period in April when telephone work was being done in the office clinic, the answering machine was operable. Respondent was able to offer no satisfactory explanation for the investigator's failure to receive an answer when the Dental Center's number was dialed during evening hours. During the period around April 15, 1988, work was being performed rerouting telephone lines at American Dental Center and the telephone answering machine was not working. This fact was known to Respondent and other staff members at the dental center. Respondent had directed the other dentists, including Saitta, to be sure they provided the patients treated during this period with the dentist's home telephone number in case emergency treatment was needed. Additional cards were provided the receptionist to give the telephone number of their treating dentist to the patients when they checked out of the dental center.
Recommendation It is RECOMMENDED: that all charges preferred against Peter Kurachek D.D.S. in the administrative complaint filed July 28, 1989 be dismissed. ENTERED this 8th day of May, 1990, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8 day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-0187 Petitioner proposed findings are accepted except the following: 15 Rejected as uncorroborated hearsay. 19-21 Dr. Yurosko was accepted as an expert in dentistry and oral surgery--not in dental office procedures or what constitutes adequate emergency services as that phrase is used in Rule 21G- 17.004 Florida Administrative Code. Accordingly, his interpretation of the rule constitutes a legal opinion rather than a dental opinion and, as much, is entitled to little weight. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Janine Bamping, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Peter Kurachek 3920 Bee Ridge Road Sarasota, FL 34233
The Issue Whether Respondent violated Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of Dentistry pursuant to Chapters 456 and 466 and Section 20.43. Dr. Kashlak is and has been at all material times hereto a licensed dentist in the State of Florida, having been issued license number DN 0011469. Dr. Kashlak has been practicing dentistry since 1985. She and her husband, Dr. Anthony Oswick, have had a small general dentistry practice in Orlando since at least 1990. On August 8, 2001, Dr. Kashlak first saw patient D.B. X-rays were taken on that date, and D.B.'s teeth were cleaned. D.B. next presented on August 21, 2001, at which time the cleaning of her teeth was completed. D.B. was scheduled for a one-hour appointment at 1 p.m. on September 19, 2001. D.B. called Dr. Kashlak's office at 10 a.m. on the morning of her appointment and advised that she had a conflict with her 1 p.m. appointment. She was advised that she would be charged a $50 cancellation fee if she did not make her appointment. D.B. advised that she would be coming, but that she would be late. D.B. arrived at 1:25 p.m. for her appointment. She was advised by the receptionist that she was too late for her appointment and that she would be charged the $50 cancellation fee. D.B. was unhappy with the situation. The receptionist told D.B. that she would have the dentist call her. It is the policy of Dr. Kashlak's office that she will deal with Dr. Oswick's patients on fee matters and that he will deal with her patients on fee matters. On the evening of September 19, 2001, Dr. Oswick called D.B. to discuss her concerns about the cancellation fee. D.B. and Dr. Oswick argued about the cancellation fee. D.B. advised him that she was not happy with the way that she had been treated and that she would be going to another dentist. D.B. told Dr. Oswick that she wanted her dental records, and he advised her to put her request in writing and send a check for $35 to cover the costs of copying the records. In a letter dated September 25, 2001, D.B. sent a letter to Dr. Kashlak stating the following: As per your instructions, I have enclosed a check for $35 to cover the cost of duplicating my dental records--x-rays, treatment plan, and notes. Please call me at the number noted below as soon as they are available and I will come by to pick them up. On October 8, 2001, D.B. received a copy of her dental x-rays and a letter enclosing a check for $99, which represented a refund of an insurance claim payment for D.B. No mention was made in the letter why all D.B.'s dental records had not been sent, and no mention was made that Dr. Kashlak or Dr. Oswick would contact D.B. concerning the remaining dental records. D.B. called Dr. Kashlak's office on October 8, 2001, and spoke to Dr. Oswick. Dr. Kashlak was with Dr. Oswick during the telephone conversation with D.B. D.B. asked why she had not received all of her dental records. He told her that the diagrams of her teeth would not copy well and that there was nothing else that she needed in her records. D.B. did not indicate to Dr. Oswick that she was withdrawing her request for the records. D.B. went to another dentist on October 17, 2001. She gave the x-rays to the dentist and told the dentist that she was unable to get the remaining records from Dr. Kashlak. Upon being advised by the new dentist that Dr. Kashlak was required to provide her with a copy of the records, D.B. went by Dr. Kashlak's office after her dental appointment in an attempt to get her dental records. The receptionist at Dr. Kashlak's office would not give D.B. her records. After her October 17 visit to Dr. Kashlak's office, D.B. never attempted to contact Dr. Kashlak again concerning her dental records. On October 17, 2001, Dr. Kashlak and Dr. Oswick were on vacation and were not in the office. They were not advised that D.B. had stopped by the office requesting her records. In April 2002, D.B. filed a complaint with the Department concerning Dr. Kashlak's treatment and the failure to provide the requested dental records. The Department investigated the complaint and contacted Dr. Kashlak by letter dated June 24, 2002, advising her of the complaint. By a Verification of Completeness of Records form dated July 15, 2002, Dr. Kashlak sent D.B.'s records, consisting of 14 pages, to the Department. One page of D.B.'s dental records, which the Department received, contained the following in the upper right- hand corner: Personal Notes: 9-19-01 Pt. showed up @ 125 pm -- caused disruptive scene in reception area/slanderous stmts. demanding refund. mk 9-19-01 called pt per request, became argumentative Re: broken appt. fee !! Also requested copy of x-rays afo 10-8-01 spoke to pt Re. Tx notes argumentative Re: BA Fee of $50 Pt's next dentist to contact us mk After receiving notice from the Department of D.B.'s complaint, Dr. Kashlak also sent D.B. a copy of D.B.'s dental records, which D.B. received on July 20, 2002. D.B.'s copy did not contain the personal notes set forth above. Dr. Kashlak has never had her license to practice dentistry disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Kashlak violated Subsections 456.057(4) and 466.028(1)(n), imposing an administrative fine of $750, issuing a reprimand, and requiring Dr. Kashlak to complete 30 hours of continuing dental education in record keeping or risk management. DONE AND ENTERED this 11th day of September, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2003. COPIES FURNISHED: Wayne Mitchell, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Brian D. Stokes, Esquire Unger, Acree, Weinstein, Marcus, Merrill, Kast & Metz, P.L. 701 Peachtree Road Orlando, Florida 32804 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue This is a license discipline case in which the Respondent has been charged in a Corrected Administrative Complaint with a violation of Section 466.028(1)(m), Florida Statutes.
Findings Of Fact At all times material to this proceeding, the Respondent, Dr. Merle N. Jacobs, has been licensed to practice dentistry in the State of Florida. He currently holds license number DN 0005940. During the period from January 22, 1993, through March 27, 1995, T. C. was a patient of the Respondent. During that period of time, the Respondent performed various dental services for T. C., including the making and fitting of a partial denture. The Respondent prepared and kept dental records and medical history records of his care of patient T. C. The Respondent's records of such care are sufficient to comply with all relevant statutory requirements. The Respondent's records of such care do not include any notations specifically identified or captioned as a treatment plan. The records do, however, include marginal notes of the course of treatment the Respondent intended to follow in his care of patient T. C. Those marginal notes describe the treatment the Respondent planned to provide to patient T. C.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998.
Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues are whether attorney’s fees and costs should be awarded to the Petitioner (Petitioner or Dr. Aranda) under section 57.105, Florida Statutes (2016),1/ and, if so, the amount of the fees and costs.
Findings Of Fact In 2010, DOH received a sworn complaint from the Collier County Health Department (CCHD) alleging essentially: that Dr. Aranda was misrepresenting the nature of dental work she was providing to Medicaid patients to make it appear that she was prescribing and delivering non-orthodontic, “passive” appliances, which was covered by Medicaid, when she actually was prescribing and delivering orthodontic, “active” appliances, which was not covered by Medicaid, after being warned by her supervisor not to do so; and that she was delegating irremediable tasks, such as permanently cementing dental appliances and hand-scaling, to unqualified dental assistants. DOH investigated, and a panel of the Board of Dentistry found probable cause based on the investigative report. In May 2015, DOH filed an Amended Administrative Complaint charging Dr. Aranda as follows: in Count I, with making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009)2/; and, in Count II, with delegating irremediable tasks (hand-scaling and permanently cementing dental appliances) to a dental assistant not qualified to perform those tasks, in violation of sections 466.028(1)(z) and 466.024(1), and Florida Administrative Code Chapter 64B5-16.3/ Dr. Aranda disputed the allegations and asked for a disputed-fact hearing under section 120.57(1), Florida Statutes (2015)4/. The case was referred to DOAH, designated case 15-6268PL, and scheduled for a final hearing on March 2, 2016. On February 11, 2016, Dr. Aranda served (but did not file) a motion for sanctions pursuant to section 57.105, Florida Statutes (2015). The motion asserted that DOH knew or should have known that several paragraphs in the Amended Administrative Complaint referred to the billing of Medicaid for “passive” space maintainers and other similar appliances and related dental services, and that those allegations were not supported by the material facts necessary to establish them. The motion for sanctions served by Dr. Aranda in DOAH case 15-6268PL was based on discovery she had obtained through a deposition of the CCHD’s records custodian. The deposition revealed that the documents DOH had been calling Medicaid billing records actually were “dental treatment plans.” There were other documents called “bill service lists” that were the actual bills sent to Medicaid for payment. The “bill service lists” reflected flat fee bills to Medicaid for “Medicaid billing encounters.” The “dental treatment plans” consisted of patient demographics, personal information, insurance and billing information, and services provided. The “dental treatment plans” contained references to space maintainers and similar non-orthodontic appliances that were covered by Medicaid, and there were references to events labeled “bill initiated.” Both the “bill service lists” and the “dental treatment plans” were generated by the CCHD’s so-called HMS computer system. The motion for sanctions served by Dr. Aranda in DOAH case 15-6268PL concluded with a warning that it would be filed if DOH did not withdraw the allegations in the Amended Administrative Complaint referring to the billing of Medicaid for “passive” space maintainers and other similar appliances and related dental services. DOH did not withdraw the allegations. At the final hearing in DOAH case 15-6268PL, there was considerable confusion about the billing process and the various documents. Eventually, the “dental treatment plans” were received in evidence with the understanding that they were not the actual bills sent to Medicaid for payment. The “bill service lists” were not moved in evidence by either party. The billing information in the HMS system was entered by the CCHD’s clerical staff from “super bills” that were created by dental practitioners, including Dr. Aranda, based on their care and treatment of patients. Besides submitting her “super bills,” Dr. Aranda played no part in the generation of HMS billing information or the actual billing of Medicaid by the CCHD. The “super bills” were not available to be used in the final hearing because they were discarded shortly after the entry of the information they contained into the HMS system. No member of the CCHD’s clerical staff testified, and there was no evidence about the Respondent’s actual entries on her super bills.5/ Meanwhile, some of the patient records and appliance prescriptions written by Dr. Aranda for her Medicaid patients accurately reflected the kinds of orthodontic-type “active” appliances she was using for her Medicaid patients. Dr. Aranda testified that she was openly using orthodontic-type appliances for non-orthodontic purposes for these Medicaid patients. The Recommended Order in DOAH case 15-6268PL was entered on May 24, 2016. It found that DOH did not prove, by clear and convincing evidence, the charge in the Amended Administrative Complaint that Dr. Aranda was making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009). It recommended dismissal of the charges. The Final Order was entered on September 23, 2016; it adopted the Recommended Order, despite exceptions filed by DOH. On November 21, 2016, the Petitioner filed a petition for attorney’s fees and costs under both section 57.111 and section 57.105. The petition was designated DOAH case 16-6924F. It was amended to drop the claim under section 57.111. It was clear, and DOH knew or should have known within 21 days of service of Dr. Aranda’s section 57.105 motion for sanctions in case 15-6268PL, that the HMS “dental treatment plans” were not the actual bills sent to Medicaid for payment. The HMS “bill service lists” were the actual bills sent to Medicaid. However, the services billed to Medicaid via the HMS “bill service lists” were the same services described in the HMS “dental treatment plans” (even if the “bill service lists” themselves did not specify the services). Dr. Aranda did not prove by a preponderance of the evidence that DOH knew or should have known that the charge in the Amended Administrative Complaint, that Dr. Aranda was making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009), was not supported by the material facts necessary to establish it.
