The Issue Whether the Respondents committed the offenses set forth in the respective Administrative Complaints filed in this case and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material hereto, Respondent, Tracey Renee Monroe, was licensed by the Florida Cosmetology Board, and Respondent, Martha Hylton, was licensed by the Florida Cosmetology Board. On or around December 10, 1988, customer, Mary Jean Hampton went to Cora's Beauty Salon in Miami, Florida, to have her hair done by her usual cosmetologist, Martha Hylton. Ms. Hampton had been a regular customer of Ms. Hylton for approximately two years. When Ms. Hampton arrived, Ms. Hylton examined Ms. Hampton's hair, and they both decided that it was time to apply a chemical relaxer to Ms. Hampton's hair. Without performing a test of the chemical's reaction to a strand of Ms. Hampton's hair (strand test), Ms. Hylton proceeded with the application using a chemical she had used previously on Ms. Hampton's hair. When the chemical was removed, a substantial portion of hair in the crown area of Ms. Hampton head broke, leaving her with the appearance of spot balding. Ms. Hampton also suffered from a pre-existing skin condition which Ms. Hylton protected with base. When the breakage was noted, Ms. Hylton conferred with other cosmetologists in the salon and with Ms. Hampton. Ms. Hampton then mentioned that she had recently used a shampoo and conditioner, Flex, which she had not previously used. A decision was made that Respondent, Tracey Renee Monroe, would apply a procedure, bonding, to Ms. Hylton's head. Bonding involves gluing hair to the scalp and weaving the glued hair in with the remaining hair. The damage to Ms. Hampton hair was caused by the chemical relaxer. The proof failed to demonstrate that the bonding procedure contributed to the hair loss. Although performing a strand test prior to any chemical application on the hair is the acceptable procedure, the proof demonstrated that the practice is not consistently followed when a practitioner is familiar with a client's hair as Ms. Hylton knew Ms. Hampton's hair. On balance, the proof fails to demonstrate that either Respondent, Tracey Renee Monroe or that, Respondent, Martha Hylton, committed fraud, deceit, gross negligence, incompetency or misconduct within the intent of the Florida Cosmetology Act.
Recommendation Based on the foregoing findings of fact and conclusions of law, as to Respondent, Martha Hylton, it is RECOMMENDED that the administrative complaint be dismissed.; and Based on the foregoing findings of fact and conclusions of law, as to Respondent, Tracey Renee Monroe, it is RECOMMENDED that the administrative complaint be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th of August 1989. JANE C. HAYMAN 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 25th day of August 1989. COPIES FURNISHED: Tobi Pam, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 James W. Evans, Esquire Post Office Box 420187 Miami, Florida 33142 Ms. Myrtle Aase Executive Director Florida Board of Cosmetology 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729
Findings Of Fact Bart Sklansky is the President of Sunshine Hair Fashions, Inc., which is the owner of a salon operating under the name of Sunshine Scissors, located at 5568 Flamingo Road, cooper city, Florida. At all times material hereto, Sunshine Hair Fashions, Inc., was licensed by the State of Florida, to operate a cosmetology salon under License No. CE0040983, and the Sunshine Scissors Salon located at 5568 Flamingo Road, Cooper City, Florida operated under that license. Mr. Sklansky owns several other salons and he visits each location from time to time to oversee the operations. Petitioner was and is the state agency charged with regulating the practice of cosmetology in the State of Florida. On January 20, 1988, Leonard Baldwin, an inspector for the Department of Professional Regulation, entered the Sunshine Scissors Salon (hereinafter the "Salon") for the purpose of conducting a routine inspection of the premises. Mr. Baldwin has been an inspector for the Department of Professional Regulation for approximately four years. As part of his job, he inspects approximately 32 cosmetology salons per week and prepares a written inspection report reflecting his visit. He generally reviews those reports with the employees who are present. He will generally inspect a salon only once a year unless there are problems. At the time of Mr. Baldwin's inspection in January of 1988, the Salon was basically in good shape with the exception of the work station of one of the operators, Kenneth Hayman. The shop is professionally cleaned once a week and the employees make sure that the floors, mirrors and waiting areas are clean at all times. However, each individual operator is responsible for the cleanliness of his particular work station. While Mr. Hayman is not deliberately unsanitary, he is sometimes careless and needs constant prodding and reminders to keep his work station clean. As noted on his inspection report (Petitioner's Exhibit 3), Mr. Baldwin found certain conditions which he felt were unsatisfactory during his January 20, 1988 visit. Among the conditions he noted were the following: the back bar of at least one of the work stations was dirty and had excessive dust; there was excessive hair on the floor; combs and brushes from at least one of the work stations contained excessive hair; and it appeared that the implements and utensils from at least one work station were not being properly cleansed, sanitized, or stored. However, no direct testimony was presented as to the proper method for sanitizing or cleaning the implements and no evidence was presented as to how Respondent's procedures failed to meet the regulatory standards. Although Mr. Baldwin's investigation report (Exhibit 3) indicates as an additional deficiency that "sanitary towels/neck strips were not being placed around patrons necks," no explanation was given as to the basis for this noted deficiency and no direct testimony was offered to support this contention. All of these deficiencies, identified under the pertinent rules of the Board's, were brought to the attention of Pam Greco, one of the operators at the Salon. Bart Sklansky was not made aware of the deficiencies until several months later. He never noticed any problems during his visits to the Salon. On October 2, 1988, Mr. Baldwin again inspected the Salon. The general condition of the shop was satisfactory. However, the work station of Kenneth Hayman was again found deficient in certain areas. More specifically, the back bar area around this work station was dirty and it appeared that utensils may have been used on more than one patron without being sanitized. Mr. Baldwin did not explain how he reached this conclusion. After the second inspection, Mr. Hayman paid more attention to the cleanliness of his work station and kept it clean the majority of the time. However, on December 9, 1988, Mr. Baldwin against inspected the salon and noted similar deficiencies to those he found during the October 1988 inspection. Mr. Hayman's work station has never been the source of any customer complaints. Mr. Hayman has been informed that his work station must be kept clean and he has kept his work station clean since the last inspection.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(9), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of $100. DONE and ENTERED this 5th day of May, 1989, in Tallahassee, Florida. J. STEPHEN MENTON 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 5th day or May, 1989. COPIES FURNISHED: Tobi C. Pam Staff Attorney Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Bart Sklansky Sunshine Hair Fashions Post Office Box 601667 North Miami Beach, FL 33160 Myrtle Aase Board of Cosmetology Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 N. Monroe Street Tallahassee, FL 32399-075010
The Issue The issue in this case concerns whether Respondent violated Section 484.014(1)(f), Florida Statutes, in the manner alleged in an administrative complaint and, if so, what penalties should be imposed.
Findings Of Fact Respondent is, and at all times material has been, a licensed optician in the State of Florida, having been issued license number DO 2390 on November 29, 1984. At all times material, Respondent has operated, or has assisted in the operation of, a business named Fast Eyes Optical, located at 8246 Jog Road, Boynton Beach, Florida 33437. On or about January 3, 2002, customer R.S., accompanied by a friend (L.E.), visited Fast Eyes Optical, where they were attended by Respondent. Both R.S. and L.E. decided they would each buy a pair of Oakley sunglasses. Respondent quoted an initial price of $634.00 per pair for the Oakley sunglasses with prescription lenses. Ultimately, Respondent agreed to sell the Oakley sunglasses for $500.00 per pair. At the time in question, the Oakley sunglasses came from the manufacturer with non-prescription lenses made from a material known as polycarbonate. Polycarbonate lenses are noted for being impact resistant. Polycarbonate lenses are more impact resistant than lenses made of a plastic material known as CR-39. Polycarbonate lenses are particularly desirable for people who frequently engage in sports or otherwise lead a very active lifestyle in which they are at greater risk of some form of impact to their eyewear. Plastic lenses made from CR-39 have better optical characteristics than polycarbonate lenses, and, from a visual acuity point of view, are a better choice material than polycarbonate. R.S. wanted to have prescription lenses in his new Oakley sunglasses. Respondent told R.S. that Respondent could put prescription lenses in the new Oakley sunglasses that would duplicate the prescription in the glasses R.S. was wearing when he came into the store, but that he would have to send off for the prescription lenses for the Oakley sunglasses. It was ultimately agree that Respondent would obtain prescription lenses for the new Oakley sunglasses and that when the new sunglasses were ready, Respondent would mail them to R.S. at R.S.'s home in Ohio.1 Using a device called a lensometer, Respondent examined the glasses R.S. was wearing when he came into the shop and determined the prescriptions that were in the lenses in those glasses. Respondent ordered lenses for the Oakley sunglasses that matched the prescriptions in the glasses R.S. was wearing that day. While R.S. was still in the shop, Respondent explained to him that Oakley did not (at that time) make prescription lenses for the frame model R.S. was buying, that the prescription lenses for the sunglasses would not be Oakley lenses, and that the lenses would be made from a plastic material called CR-39 because Respondent thought CR-39 was a better choice lens material in view of the purposes for which R.S. was buying the sunglasses.2 In due course Respondent mailed a pair of Oakley sunglasses to R.S. in Ohio. Shortly after receiving the sunglasses, R.S. went on a trip to Mexico. While in Mexico, and while wearing the sunglasses he had received from Respondent, R.S. fell down at least three different times at the same place on the same set of stairs in the same Mexican restaurant. His last fall on those stairs caused R.S. to have a bruised chin, a bruised wrist, and a broken big toe on his left foot.3 Shortly after returning from his trip to Mexico, R.S. went to an optician in Ohio and asked the Ohio optician to examine the Oakley sunglasses he had purchased from Respondent. Upon examining the sunglasses made by Respondent, the Ohio optician communicated the following conclusions to R.S.: The right lens in those sunglasses did not match R.S.'s prescription, the lenses were made from CR-39 plastic material, and the lenses were chipped.4 On March 14, 2002, the Ohio optician sold R.S. a pair of prescription polycarbonate lenses in his correct prescription for his Oakley frame, and replaced the plastic lenses that Respondent had originally placed in the Oakley frame. The Ohio optician charged $321.00 for the new lenses. The polycarbonate lenses sold by the Ohio optician were not Oakley lenses. Not long after his visit with the Ohio optician, R.S. communicated with Respondent and complained about the things the Ohio optician had told him were wrong with the lenses furnished by Respondent. Respondent told R.S. that R.S. should mail the sunglasses to Respondent and Respondent would correct any problems with the sunglasses. R.S. refused to send the sunglasses back to Respondent because he no longer had any confidence in Respondent. Instead, R.S. asked Respondent to send him a refund of approximately $300.00 to cover the cost of the lenses R.S. bought from the optician in Ohio. Respondent refused to send a refund to R.S., but repeated his offer to make any necessary corrections to the sunglasses. Respondent has a policy of not giving refunds to customers, but Respondent also has a policy of doing whatever is necessary to correct any problems with any of the products he sells.5
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Opticianry enter a Final Order concluding that the violations charged in the Administrative Complaint should be dismissed because the evidence is insufficient to prove the violations alleged by clear and convincing evidence. DONE AND ENTERED this 1st day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2004.
The Issue Respondent is charged, pursuant to Count One with a violation of Section 459.015(1)(n), (1985), now Section 459.015(1)(p), F.S., by failing to keep written medical records justifying the course of treatment of the patient, including but not limited to patient histories, examination results, and test results; pursuant to Count Two with a violation of Section 459.015(1)(t), F.S. (1985), now Section 459.015(1)(y), F.S. by gross or repeated malpractice or the failure to practice osteopathic medicine with that level of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar osteopathic physician under similar conditions and circumstances; pursuant to Count Three, with a violation of Section 459.015(1)(l), F.S. (1985), now Section 459.015(1)(n), F.S. by making deceptive, untrue or fraudulent representations in the practice of osteopathic medicine; pursuant to Count Four, with a violation of Section 459.015(1)(o), F.S. (1985), now Section 459.015(1)(r), F.S. by exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which shall include but not be to limited to the promoting or selling of services, goods, appliances or drugs.
Findings Of Fact At all times material, Respondent was licensed as an osteopathic physician in the State of Florida having been issued License No. OS 0003592. Respondent graduated from Kirksville College of Osteopathic Medicine and Surgery and completed a twelve month rotating internship at Suncoast Hospital in Largo, Florida in 1975. He then entered practice in Lake Park at his present address, 310 U.S. Highway One, Lake Park, Florida 33403. From on or about July 22, 1985 until on or about November 27, 1985 Respondent rendered medical care and treatment to patient Margaret Malkemus, for a variety of complaints, including but not limited to hypertension, anxiety, depression, and hair loss. This disciplinary action arises out of a mineral hair analysis test performed on Mrs. Malkemus and her treatment with chelation therapy. Ultimately, Ms. Malkemus terminated her chelation treatments after completing only 4 of the 5 treatments recommended by Respondent. Mrs. Malkemus and her husband, Charles, initiated complaints to the Department of Professional Regulation only after Medicare declined to reimburse them $65.00 per treatment for the four chelation treatments she received from Respondent. Christie J. Dietert, the Department of Professional Regulation Investigator who testified, felt her investigation had ruled out a charge of experimentation and did not pursue further investigation. Upon the testimony of Respondent, Dr. Birzon, Dr. Baird, and Dr. Rudolph, it is found that although chelation therapy is not an ordinary and customary therapy, chelation therapy for heavy metal toxicity and for cardiovascular problems is used by a respectable and significant minority of physicians similar to Respondent. (See Findings of Fact 23-24) Dr. Birzon and Dr. Baird are both Florida-licensed osteopathic physicians. Dr. Birzon is not a proponent of such treatment and has little training in chelation therapy of any kind, but he is familiar with its use by respected colleagues. Dr. Baird is trained in various types of chelation therapy and uses it regularly in his practice. In his opinion, upon review of the patient's chart, laboratory reports, and the applicable superbills, he would probably have given her chelation therapy for her cardiovascular problems. He also felt that chelation therapy was the only therapy that would address all her problems at the point in time Respondent administered it, after unsuccessfully trying other methods for each complaint. Upon direct evidence adduced at formal hearing, and upon authority of the findings of fact adopted in toto in the Final Order of Department of Professional Regulation v. Roehm, DOAH Case No. 86-2868 (Final Order entered by the Board of Medical Examiners October 13, 1988), it is clear that a respectable minority of physicians similar to Respondent also use hair mineral analysis as a diagnostic device, and that while controversial, hair mineral analysis is not experimental when used as part of the constellation of diagnostic tools available to modern science, nor is its utilization as a screening device a departure from that level of care, skill, and treatment required of a reasonably prudent similar practitioner in like circumstances. Respondent participates in an average of one hundred fifty hours per year in continuing education within the field of osteopathic medicine. Although not board-certified in osteopathy, he is a member of many associations, including the American Academy of Medical Preventives and the American Academy of Medical Advancement. Since 1976, hair loss has been of special interest to Respondent and he has residency training in ear, nose and throat, and in facial plastic surgery. When Respondent became active in the American Academy of Medical Advancement, he participated in its program pertaining to hair analysis and the interpretation of hair analysis reports. Respondent learned of chelation therapy starting in osteopathic medicine school and has had actual experience with it since 1976. Respondent has attended educational meetings at the rate of approximately one per year regarding EDTA and chelation therapy. On July 22, 1985, Mrs. Malkemus presented at the Respondent's office with symptoms of nervousness and hair loss. She told Respondent that she had previously seen Dr. Crittendon and Dr. Marchetto, both with complaints of hair loss. Both doctors had advised her that there was nothing that could be done for her hair loss, but Mrs. Malkemus had seen and talked with a patient of Respondent's who had had good results from Respondent's treatment for hair loss, and Mrs. Malkemus wanted to see what Respondent could do for her. Upon the credible portions of the testimony of both Respondent and Mrs. Malkemus, it is found that Respondent performed only a cursory physical examination of Mrs. Malkemus on her first visit. Respondent testified, and it is accepted, that it is his routine to examine a patient on the first visit and only note abnormal findings, not normal ones. He normally does listen to the heart, palpate the abdomen, and do a brief neurological test. If he did these on Mrs. Malkemus, they were not recorded. The fact that Respondent cannot recall with certainty if these examinations were performed and his notes cannot assist him recall this information demonstrate a significant flaw in his notes. With regard to Mrs. Malkemus' first visit, an SMAC-26, a CBC, urinalysis, and mineral hair analysis were noted by Respondent as future tests to be performed as part of a plan for reaching a firm diagnosis of her problems and to rule out metabolic dysfunction as their cause. All tests except the hair mineral analysis were performed on her third visit, August 27, 1985, and were paid for in advance. At the same time, a thyroid test was done. Hair was removed for the hair mineral analysis on September 6, 1985. Respondent's first examination of Mrs. Malkemus was cursory, but he examined her frequently with different degrees of thoroughness on several occasions between July 22, 1985 and November 26, 1985. Respondent generally recorded only significant positive or negative findings. Frequently, the only part of the physical examination or office visit recorded in Respondent's notes was weight, blood pressure, and symptomatology. However, this information was fleshed-out on occasion with a listing on the superbills of diagnoses, and of prescriptions and injections given. Unfortunately, sometimes the dates on the superbills and the dates on the chart/notes do not dove-tail. On 9/26/85 Respondent's notes reflect the first diagnosis of hair loss and anxiety. On several occasions, Respondent also treated Mrs. Malkemus, as set forth infra. At their initial consultation, Respondent took only a brief history because Mrs. Malkemus informed him of her prior medical history and promised availability of medical records from the prior treating physicians. However, the brief history that was taken included the fact that Mrs. Malkemus had major surgery at a prior unknown date and a pap smear eight months before her first visit to Respondent. The Respondent also noted that Mrs. Malkemus smoked two packages of cigarettes a day and drank alcohol occasionally. He further noted that she was being treated for high blood pressure (hypertension) by Dr. Marchetto. Respondent requested that the patient sign a release for her medical records from these other doctors, which she did. Nonetheless, it was agreed between them at the first visit that Mrs. Malkemus would personally obtain her prior medical records and bring them to Respondent rather than his having to send for them. However, thereafter, she did not obtain them because, by her own testimony, she felt she did not have the time and because she unilaterally decided it was not necessary to do so. Over the course of treatment, Respondent discovered that Mrs. Malkemus drank beer, if not excessively, at least considerably, during the period he was treating her. She was also overweight and very sensitive about her hair loss. She wore wigs and hairpieces at all times, 24 hours a day, even in bed. Beyond recording her weight on each visit, Respondent did not specifically record these matters in his notes, but he did address them in discussions with Mrs. Malkemus. With regard to obtaining her medical records and as set out infra, Mrs. Malkemus was not a very cooperative patient. From observation of their candor and demeanor while testifying, as well as by assessment of the substance of their testimony, it appears that Mr. and Mrs. Malkemus were chronic "doctor shoppers" and "treatment shoppers" but were not fastidious about following medical directions. One or the other frequently called Respondent's office for one reason or another and the Respondent's notes on Mrs. Malkemus reveal he refused to advise her by telephone until she came into the office to complete the laboratory tests for diagnostic purposes. Contrary to being exploitative, the inference therefrom must be that he declined to treat or advise her until conservative diagnostic tests were performed. Although the Respondent's medical notes on this patient do not reflect multiple discussions with her, as such, they do support his testimony that he reviewed laboratory results with her and warned her about drinking alcohol while on certain medications. Also, upon the credible portions of Mr. and Mrs. Malkemus' testimony and that of Respondent, it is concluded that Respondent spent considerable time discussing symptoms, possible treatments, and probable effects with Mr. and Mrs. Malkemus prior to suggesting chelation therapy. Respondent instructed Mrs. Malkemus that the constant wearing of a wig, excessive use of alcohol and tobacco, and poor circulation contributed to hair loss. He contacted the University of Florida to rule out the possibility that one of her hypertensive medications was contributing to hair loss. He advised her to leave the wigs off and buy a vibrator to massage her scalp to improve circulation. He prescribed a nutritional weight loss diet, and suggested she exercise by walking. All of these suggestions constitute conservative standard treatment for high blood pressure, obesity, circulatory problems, and hair loss. He also prescribed vitamins, minerals, and a diuretic. He prescribed Kenolog to stimulate hair growth. Neither of these treatments was shown to be clearly contrary to prevailing standards of care for this type of patient. Mrs. Malkemus did basically what she wanted and continued to complain of hair loss and anxiety. The patient's blood pressure was checked at each visit and indicated that even with medication, her blood pressure remained at the high end of the normal range. Respondent changed blood pressure medications with good results. The only faults with this procedure found by Dr. Birzon was that the prior doctors' records should have been obtained by Respondent directly, or he should have refused to treat the patient; not having the prior records, Respondent should have been more meticulous in diagnosing hypertension in the first place and in recording it; and he should have recorded his test results and diagnosis instead of just recording the medications. Medications should also have been recorded as to amount, strength, and duration, instead of as they were recorded, merely by name. The patient presented at almost every office visit with symptoms of extreme nervousness, and/or anxiety. Respondent tried to refer her to a psychiatrist; she would have none of it. He prescribed tranquilizers and antidepressants. On one occasion, he prescribed lithium. No fault or failure of the standard of care was linked to these treatments, even though Respondent is not a psychiatrist, but his failure to record medications properly and his failure to record a specific diagnosis which would support use of the lithium was proven. Mr. Malkemus flushed the lithium tablets down the toilet because he did not want his wife taking something for "crazy people." Subsequent to all the tests and trials outlined above, Respondent provided Mrs. Malkemus with a "patient's copy" of the hair mineral analysis performed by Doctor's Data Inc., a reputable hair mineral analysis laboratory. Despite some belligerent contrary assertions by Mr. Malkemus, Mrs. Malkemus' testimony, Respondent's testimony, the hair mineral analysis printout, the superbills, and the Respondent's notes on this patient are all consistent that Respondent never diagnosed Mrs. Malkemus as having "heavy metal poisoning" or "mercury poisoning." The hair mineral analysis showed a mild degree of elevation of copper and mercury, each within 1 or 2 standard deviations of normal on the heavy metals section. There was also a mild elevation of cadmium. The mercury level was within the normal range of the vast majority of the population. Upon the basis of his education, training, and experience, this hair mineral analysis, and all the foregoing tests, plus his examinations and observations of, and discussions with, Mrs. Malkemus on 7/22/85, 8/1/85, 8/27/85, 8/30/85, (when he successfully surgically removed a lesion from her leg), 9/6/85, 9/12/85, 9/26/85, and 9/30/85, Respondent diagnosed Mrs. Malkemus as having "heavy metal toxicity" and "hypertension." He did not, however, record the diagnosis of hypertension anywhere in his records until it was first placed on the superbill for 11/5/85, and the dual diagnosis of hypertension and heavy metal toxicity is first recorded on the superbill for 11/12/85. Thereafter, the dual diagnoses appear on each superbill. During her testimony, Mrs. Malkemus first "guessed" that Respondent had told her she had mercury poisoning, lead poisoning, or heavy metal poisoning, but upon further inquiry, she could recall very few specifics about Respondent's review of her tests with her or his statements to her. Omitting repetitions and digressions in her testimony, it is found that Mrs. Malkemus' testimony concerning Respondent's representations can be summed up as follows: Respondent had represented to her that there was mercury in her hair and in the hair analysis, that the degree of mercury "wasn't bad," that her heavy metals were light and not serious, that chelation therapy would help but not that it would take all the mercury out. Respondent related to her that the chelation therapy might bring down her high blood pressure. He told her he did not know why she was losing her hair but the chelation therapy might help her. He only used the word "poison" in a phrase like, "you need to get the poison out of your system." Mr. and Mrs. Malkemus both agree that they were given a copy of the laboratory blood tests and the hair mineral analysis printout to take home and review outside Respondent's presence after Respondent discussed the test results with Mrs. Malkemus. Mrs. Malkemus also got an independent opinion from Dr. Marchetto before submitting to Respondent's chelation therapy. Despite all of the foregoing, Mr. and Mrs. Malkemus came to the conclusion that Respondent's diagnosis of "heavy metal toxicity" equated directly with "heavy metal poisoning". The consensus of the expert testimony is that these terms are not synonymous and that the standard of treatment for them is not the same. Heavy trace metal toxicity is similar to a chronic chemical change but is not an acute poisoning. Such toxicity is subacute and subclinical, whereas mercury poisoning or other heavy metal poisoning or heavy metal intoxication is a medical emergency, requiring more extensive testing in order to discover it and requiring different chelating formulas or other treatment than Respondent used here. Mrs. Malkemus asserted that she alone decided that something should be done about the mercury in her system. Respondent recommended a course of five chelation treatments and intended to repeat the battery of standard tests afterwards to determine the treatment's effectiveness. Notwithstanding the testimony of Mark Montgomery Ph.D. and Dr. Birzon D.O., there is competent substantial evidence to show that Mrs. Malkemus was an acceptable candidate for the type of chelation therapy Respondent administered and that although she was the first patient treated by Respondent for mercury toxicity, he could have had a reasonable belief that his method of chelation would improve circulation for treatment of hair loss, would reduce blood pressure so as to eventually reduce or eliminate medication, and possibly would provide some relief for Mrs. Malkemus' other complaints. Dr. Birzon conceded that a low level of mercury could be causing a problem for a patient even if it did not hit the level of "heavy metal poisoning" or "toxicity." See also Dr. Baird's view, Finding of Fact 5. supra. Respondent uses two chelation therapy formulas. Both formulas utilize EDTA; only one uses Heperin. Dr. Birzon testified that the formula utilizing Heperin could have been dangerous to Mrs. Malkemus, given her cardiovascular problems, since it is a blood thinner. Respondent's records are clearly inadequate because they do not show which formula was used on Mrs. Malkemus, but there is likewise no clear evidence Mrs. Malkemus was ever chelated with Heperin. Respondent's formulas are in accord with the recommendations of the American Academy of Medical Preventatives. Mark Montgomery, Ph.D., conceded that either formula posed little or no risk to this patient and might have actually provided some benefit, albeit a placebo effect. The complaints associated with this therapy by the Malkemuses, i.e. that the veins in Mrs. Malkemus' face blew-up, her breasts dropped, her arms got thin, and she lost weight were not clinically documented because Mrs. Malkemus did not report them to Respondent. Also, no witness could convincingly relate these unreported complaints to the Respondent's chelation therapy, and based upon the modicum of testimony that such symptoms beyond the weight loss could not result from this chelation therapy and having observed the candor and demeanor of the Malkemuses while testifying, the undersigned concludes that these foregoing complaints were subjective. However, Mrs. Malkemus' complaints of foot and leg cramps were associated with the chelation therapy and were reasonably treated by the Respondent when she reported them to him. Respondent failed to keep written medical records justifying the course of treatment of Mrs. Malkemus. Respondent is not guilty of gross or repeated malpractice or failure to practice osteopathic medicine within that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician under similar conditions and circumstances. Respondent made no deceptive, untrue, or fraudulent representations in the practice of osteopathic medicine. Respondent did not exercise influence on his patient or client to exploit her for his own financial gain or that of another.
Recommendation The Board of Osteopathic Medical Examiners enter a final order dismissing Counts II, III, and IV of the Amended Administrative Complaint, finding Respondent guilty of Count I thereof in that he violated Section 459.015(1)(n) F.S., reprimanding Respondent for the sole violation, and imposing a probationary period of one year, the probation to be reduced in the event Respondent demonstrates to the Board satisfactory completion of courses in osteopathic record-keeping, the courses to be selected and specified by the Board in its final order. DONE and RECOMMENDED this 13th day of April, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings 13th day of April, 1989. APPENDIX The following constitute specific rulings pursuant to Section 120.59(2), F.S. upon the parties' respective Proposed Findings of Fact (PFOF). Petitioner's Proposed Findings of Fact At the outset, it must be observed that only Petitioner's proposals 19 and 22 reference any part of the record at all and therefore are subject to rejection for that reason alone. 1, 2, 5, 6, 7, 8, 15, 16, 17, 18 and 26 are accepted. 3 is accepted except to the extent not supported by the greater weight of the credible competent substantial evidence of record as a whole. 4, 9, and 11, are rejected as not supported by the greater weight of the credible competent substantial evidence of record as a whole; see Findings of Fact 10, 18-23. 10 is accepted but not adopted as stated because as stated it is misleading and out of context. 12 This is not alleged to be experimental medicine. The proposal is accepted in part and rejected in part as subordinate and unnecessary to the facts as found. Clause one of 13 is rejected as not supported by the credible competent substantial evidence as a whole. Clause two of 13 is rejected as subordinate to the facts as found and as irrelevant in that lack of informed consent was not alleged in the amended administrative complaint. 14 is accepted in part. The remainder is rejected as not supported by the credible competent substantial evidence as a whole. 19 is rejected as subordinate and unnecessary to the facts as found. 20, 21, 22, 25, 27 and 28, are rejected as cumulative or subordinate and unnecessary to the facts as found. is accepted but immaterial since this case involves trace heavy metal toxicity. is rejected in part as not supported by the greater weight of the credible competent substantial evidence of record as a whole, and in part as subordinate and unnecessary to the facts as found, and in part as mere recitation of unreconciled testimony. 29, 30, and 32 are rejected as mere recitations of testimony. 31 is rejected as mere legal argument. 33 is rejected as a mere recitation of testimony and a reiteration of an objection already ruled upon within the record. See introductory material to this Recommended Order. Respondent's Proposed Findings of Fact 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 18, 21, 24, 25 and 27 are accepted except where cumulative or subordinate or unnecessary to the facts as found. Legal argument therein is also rejected on that ground. 11 is accepted in part but clearly modified to conform to the greater weight of the credible competent substantial evidence of record as a whole. 13 is accepted in substance but is otherwise rejected as legal argument and mere recitation of testimony as opposed to a proposed material fact. 14, Rejected as not supported by the greater weight of the credible competent substantial evidence of record as a whole and as mere recitation of testimony and as legal argument. Moreover, many of the statements attributed to Dr. Birzon are out of context for Dr. Birzon specifically testified that a review of the superbills and other records presented him at hearing would not have modified his opinion on lack of record justification and that the superbill diagnoses did not always conform to the chart/notes. See Finding of Fact 11. and 17 are accepted except where cumulative, subordinate or unnecessary to the facts as found. The legal argument in the footnotes are rejected on that ground. is rejected as without record citation and as subordinate and unnecessary to the facts as found. 19, 20, and 26 are rejected as cumulative, subordinate or unnecessary to the facts as found. 22 is accepted in part. The remainder is rejected as cumulative, subordinate or unnecessary to the facts as found. 23, Rejected as mere legal argument upon objections already ruled upon within the record. Dr. Birzon's testimony has been weighed within the latitude of Wright v. Schulte, 441 So.2d 660 (Fla. .2d DCA 1983) and Sykes v. Seaboard Coastline Railroad Co. 429 So.3d 1216 (Fla. 1st DCA 1983) and is reflected appropriately within the facts as found. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire One Datran Center - Suite 1409 9100 Dadeland Boulevard Miami, Florida 33156 Barbara W. Sonneborn, Esquire 1615 Forum Place, Suite 300 West Palm Beach, Florida 33401 Lawrence U. L. Chandler Suite 800 105 So. Narcissus Avenue West Palm Beach, Florida 33401 Rod Presnell Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact The parties stipulated to the fact that the Petitioner has jurisdiction over both Respondents. In addition, Petitioner presented the licensing history of each Respondent which reflected that both possess current appropriate licenses. On March 4, 1985, Respondent, at his shop, accomplished a foil frosting on the complainant, Ms. Young, who had visited Respondent's shop for hair dressing services several times in the past. On each occasion, Respondent worked on her himself giving her over the period three permanent waves and four frostings. Ms. Young was familiar with the frosting process having had her hair done that way since 1967. There are several legitimate ways a hair frosting can be done. One is through a cap placed over the head with strands of hair pulled through small holes and bleached. In the foil frosting method, the affected strands of hair are isolated, bleach is applied, and the bleached hair is wrapped in a piece of foil until done. Frosting can be considered light, medium, or heavy, depending upon the amount of hair that is frosted. Ms. Young usually has a heavy frosting done. The last two times Respondent frosted her hair prior to the incident complained of here, Ms. Young contends her hair came out orange and red instead of blonde. She complained to Respondent about this both in person and by phone and Respondent allegedly told her he would correct the problem by first applying a dye to her hair and then frosting it. On the day in question, according to Ms. Young, Respondent did as he said he would and dyed her hair a deep brown. He then started to frost it even though she advised him at the time the dye had come out too dark. According to Ms. Young, Respondent told her not to worry about it. Ms. Young relates that Respondent left the bleach on her hair almost four hours. He checked her hair several times during that period but did nothing to stop the bleaching process. She contends she told Respondent that she was under the dryer too long but he either ignored her or told her to be quiet. After she became seriously concerned that her hair might be damaged, Ms. Young took herself out from under the dryer and began to remove the foil. At this point, she contends, Respondent came and took her to the wash area where he unwrapped the remaining foil packets and had Ms. Ayotte wash the bleach out of Ms. Young's hair. After this was done, Ms. Young was put back under the dryer and at this point, Ms. Young alleges, when she felt her hair, it had the consistency of taffy . She poked at it with a hair pick and found that large amounts of hair broke off each time she touched it. When she showed this to Respondent, he allegedly stated it was only dead ends coming off. At this point, convinced she would get no satisfaction from the Respondent, she paid him the charge for a frosting and left the shop. Respondent, she claims, refused to do anything more for her at the time but merely told her to go home and put a conditioner on her hair. According to Ms. Young, her hair continued to come out all evening each time she touched it which highly distressed and upset her, a state confirmed by her neighbor. By the following morning, she claims, she had accumulated seven or eight baggies of her hair which had come out. No matter how much she washed it and put conditioner on it, nothing helped and her hair continued to come out. The day after her visit to Respondent's shop, Ms. Young went to a beauty supply house where she was sold a vitamin treatment for her hair which she applied. Several days later she went to the beauty shop run by Ms. Kuhn where her hair was examined not only by Ms. Kuhn but also by Ms. Korman, both of whom concluded that her hair had been overly processed. She was given a procedure to follow for conditioning her hair which was trimmed back to a maximum length of two to three inches all over her head. Ms. Young indicates that the previous frostings she was given by Respondent were satisfactory as to hair texture if not as to color. However, she contends that the procedure he used on this occasion was different than that he used previously. She believes 75 percent of her hair had bleach applied to it. As a result of her dissatisfaction with Respondent, Ms. Young wrote a letter of complaint to DPR followed up by a formal complaint. The resultant file was forwarded to Ms. Markowitz, the local investigator, whose report was forwarded to Ms. Jimenez for consultation. Ms. Jimenez neither examined Ms. Young nor spoke with any of the witnesses involved but, based solely on her evaluation of the file only, which included Ms. Young's written statement, concluded Respondent was guilty of extreme negligence. She based her opinion on Ms. Young's recitation of the procedure followed by Respondent, and she readily admits that if the information given her was not accurate, her opinion would not be valid necessarily. Mr. Bannett does not deny applying a bleach solution to Ms. Young's hair and admits to having done each of her three previous frostings. He contends, however, that she was satisfied each time. 12 As a professional beautician, he has done thousands of frostings over the thirty or more years he has been in the business and has not experienced any problems until this time. He claims to work as a mechanic rather than as an artist in that he does a frosting the same way each time and does not deviate from his procedure. He believes that only through a routine can he effectively accomplish the process successfully. He categorically denies having dyed Ms. Young's hair before frosting it stating that to do so would have been counterproductive. It would require the bleaching of not only the natural hair color but also the dyed and would mean the bleach would have to stay on far too long. In a situation needing a color change, he puts the coloring on the hair remaining uncovered after the application of the foil packs. In a frosting Mr. Bannett starts at the bottom of the head applying the bleach and wrapping the treated area. He then does the sides the same way and works his way up to the top. It takes him about 20 to 25 minutes to accomplish all the treating and wrapping, after which he places the customer under the dryer for another 25 minutes. At that point, after 45 to 50 minutes, he checks the color of the hair. If it appears to be appropriate, he has the bleach washed from the customer's hair. If the color is not right, he replaces the wrapper and lets the bleach stay a little longer. Mr. Bannett contends that when he checked Ms. Young's hair it was right and Ms. Ayotte washed out the bleach. Not only Mr. Bannett, but also Ms. Ayotte and Ms. Ascola, both of whom were present and observed Ms. Young during the process contend she was happy with the result. They also deny that prior to the frosting Ms. Young's hair was orange or red. If Ms. Young was unhappy, they say, it was because of other matters because she left the shop happy with the way her hair looked when Mr. Bannett was through. Unfortunately, though Mr. Bannett indicates he routinely makes records of the service he gives each of his customers, if the customer does not return to the shop within a short period of time, he destroys them. Here, even though Ms. Markowitz interviewed him only slightly more than three months after the incident in question, the records had already been destroyed and he could not recall what was on them. As a result, his testimony is based solely on his limited recollection and his usual routine. It is most unlikely, however, that if Ms. Young were as unhappy as she relates, some other customer in the shop would not have overheard her discussions with Respondent or observed the state of her hair. She presented no evidence other than her own allegations as to what happened in the shop. The other evidence as to the cause of the damage was not incident specific. The over application could have been by anyone, including the complainant. On balance, therefore, it would appear that without question Mr. Bannett did a frosting of Ms. Young's hair on the date alleged. There is also no doubt that the hair was damaged by the improper application of chemicals to it. However, Petitioner has failed to conclusively show that it was Respondent who improperly applied these chemicals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Administrative Complaint in this case against the Respondents Ronald Bannett and Style and Color of Sunrise, Inc., be dismissed. DONE and ORDERED this 10th day of November, 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1581 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-4 Accepted and incorporated. 5-8 Rejected as unproven. 9 Accepted and incorporated. Rulings on Proposed Findings of Fact Submitted by the Respondent Accepted and incorporated. Rejected as irrelevant to resolution of the issues of fact. 3&4 Rejected as recitations of the evidence and not findings of fact. 5 Rejected as commentary on the evidence and not as finding of fact. COPIES FURNISHED: Jane H. Shaeffer, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert Fogan, Esquire 2170 S.E. 17th Street Fort Lauderdale, Florida 33316 Myrtle Aase, Executive Director Board of Cosmetology 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the certificate of registration of Respondent should be revoked, annulled, withdrawn or suspended for the reason that Respondent, Arguster Jackson, did work as a master cosmetologist without a valid certificate of registration.
Findings Of Fact A copy of the Complaint with attached license, the certificate, and receipt for certified mail were entered into evidence as requested and marked Exhibit 1 without objection. Respondent entered a guilty plea, a copy of which was entered into evidence as requested without objection and marked Exhibit 2. Respondent Jackson did operate without a current registration required by Chapter 477, Florida Statutes. Respondent secured her master cosmetologist certificate within a time laps after the filing of this Complaint.
The Issue Whether the Petitioner must reimburse the Respondent for Medicaid overpayments as set out in the Final Agency Audit Report dated October 29, 2003, and, if so, the amount to be repaid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is, and was at all times material to this proceeding, the state agency charged with administering Florida's Medicaid Program; with making payments to providers of goods and services on behalf of Medicaid recipients; and with overseeing the Medicaid Program, auditing Medicaid providers, and recovering overpayments made to Medicaid providers. See §§ 409.901, 409.902, and 409.913, Fla. Stat. (2003). During the Audit Period, Ady Optical was an authorized Medicaid provider of opticianry services,3 having been issued Medicaid provider number 2002949-00. To become a Medicaid provider, Ady Optical executed a Medicaid Provider Agreement. The FAAR dated October 29, 2003, was based on a review by Dr. Regina Manes of Ady Optical's records for the 30 randomly-selected Medicaid recipients. At the time of the final hearing, Dr. Manes was no longer under contract with AHCA and, therefore, was not available to testify. AHCA requested that Dr. Walby testify at the final hearing as its expert in optometry. In preparation for the final hearing, Dr. Walby reviewed the records submitted by Ady Optical and made an independent determination of the appropriateness of the 294 claims at issue for the Audit Period. Dr. Walby's conclusions were not always consistent with those of Dr. Manes. Ms. Whaley reconciled the two reviews and allowed a claim if either Dr. Walby or Dr. Manes determined that it was covered by Medicaid. As a result of Dr. Walby's review and Ms. Whaley's reconciliation, AHCA lowered the amount it seeks to recover from Ady Optical to $45,914.17. The purpose of Medicaid visual services, as stated in the Coverage and Limitations Handbook, is "to provide medically necessary eyeglasses, contact lenses, eyeglass repair services, and prosthetic eyes to Medicaid recipients." "Visual services" are described in the Coverage and Limitations Handbook as "the medically necessary provision of eyeglasses, prosthetic eyes, and contact lenses; the fitting, dispensing, and adjusting of eyeglasses; and eyeglass repair services." The Coverage and Limitations Handbook is to be used in conjunction with the Reimbursement Handbook, which provides information and guidance to assist Medicaid providers in filing claims properly. The claims at issue in this case involve the provision of eyeglass lenses to Medicaid recipients by Ady Optical. Medicaid recipients bring their eyeglass prescriptions to Ady Optical, and Mr. Jimenez, as the licensed optician at Ady Optical, helps the recipient select eyeglass frames and orders lenses in the powers required by the prescription. An optician such as Mr. Jimenez has the discretion to order lenses with special features such as tints, plastic or glass lenses, variable asphericity lenses, and lenses with a special base curve, depending on the needs of the individual. The lenses selected by an optician for a Medicaid recipient must be optically necessary, that is, necessary to enhance visual acuity, and information establishing the optical necessity for the selection of non-standard lenses must be contained in the documentation maintained by the optician. Sometimes the need for a non-standard lens is apparent from the prescription, but in most cases, the optical necessity must be noted in the documentation. The claims for which AHCA disallowed full or partial payment to Ady Optical are claims for variable asphericity lenses, claims for lenses with special base curves, one claim for an oversized lens, claims for which Ady Optical provided inadequate documentation to establish that lenses were ordered for Medicaid recipients, and claims involving errors in coding. Claims for variable asphericity lenses Prescriptions for eyeglass lenses are expressed in "plus or minus" diopter units. Variable asphericity lenses were originally designed to ameliorate the magnification and "off-of- the-center" effects of the very thick lenses necessary to correct the vision of persons with extremely high diopter prescriptions, such as the prescriptions of ± 15 diopters or more needed in the past by persons who had had cataract surgery.4 With advances in technology and surgical techniques, there are few patients with prescriptions this high, and variable asphericity lenses are now made for prescriptions with much lower diopters. The curve of a variable asphericity lens is different from that of a regular lens, and variable asphericity lenses are lighter in weight than regular lenses, which can be a factor for persons with high diopter prescriptions. Variable asphericity lenses also provide significantly better peripheral vision for persons with high diopter prescriptions than regular lenses can provide. There is, however, a minimal difference in weight between variable asphericity lenses and regular lenses with low diopter prescriptions, and peripheral vision is usually not affected when regular lenses are used for low diopter prescriptions. The Coverage and Limitations Handbook in effect during the Audit Period provides that both single vision variable asphericity lenses, assigned procedure code V2410, and bifocal variable asphericity lenses, assigned procedure code V2430, may be billed under the same codes for all powers ranging from .25 to over 6.0 diopters.5 In his review of the Medicaid claims submitted by Ady Optical for the 30 randomly-selected Medicaid recipients included in the audit, Dr. Walby disallowed all claims for variable asphericity lenses because the prescriptions were lower than ± 7.00 diopters. Dr. Walby reasoned that any optician should know that variable asphericity lenses should not be prescribed for prescriptions with diopters lower than ± 7 units. Dr. Walby variously described the ± 7 diopter cut-off for variable asphericity lenses as the standard he considered "the industry standard" and as the standard he chooses to use in his practice. Dr. Walby also testified that the ± 7-diopter standard had previously been chosen by Medicaid as the minimum prescription for which contact lenses are covered and that this standard was adopted in the current Coverage and Limitations Handbook "because somebody had to draw a line in the sand, and that's where it got drawn."6 Dr. Walby has failed to establish by persuasive evidence that, in the practice of opticianry, there is an absolute industry standard that dictates that variable asphericity lenses are never optically necessary for a person whose prescription is lower than ± 7.00 diopters.7 Because the Coverage and Limitations Handbook in effect during the Audit Period permitted the use of variable asphericity lenses for prescriptions of ± 0.25 diopters and above, Ady Optical is entitled to reimbursement for variable asphericity lenses provided to Medicaid recipients whose prescriptions are below ± 7.00 diopters as long as Ady Optical documented that variable asphericity lenses were optically necessary to provide adequate visual acuity and reasonable comfort. Ady Optical ordered variable asphericity lenses for Recipients 1 through 3, 5 through 8, and 10 through 30. None of these recipients' prescriptions exceeded ± 5.25 diopters. Most of the prescriptions for these recipients were below ± 3.00 diopters, and several of the prescriptions called for "plano" lenses, that is, lenses with no magnification power. Ady Optical failed to indicate on any of the laboratory order forms any optical necessity for providing variable asphericity lenses to these recipients. The claims submitted by Ady Optical to Medicaid for payment for variable asphericity lenses for these recipients are, therefore, disallowed. Claims for lenses with special base curves Although there is a standard base curve for eyeglass lenses, lenses can be made with different base curves to accommodate the special needs of an individual. The Coverage and Limitations Handbook in effect during the Audit Period provides that special base curves, assigned procedure code V2730, may be billed with no stated limitations. In order to be covered by Medicaid, lenses with special base curves must be optically necessary, and the optical necessity must either be inherent in the prescription or documented in the optician's records. In addition, the optician is responsible for specifying the particular curvature of the lens required to meet the needs of the individual whenever a special base curve lens is ordered. There is optical necessity for lenses with special base curves when a person's prescription for one eye is significantly larger than the prescription for the other eye; the image size in both lenses can be made the same by adjusting the curves of the lenses. There is also optical necessity for a lens with a special base curve when a person's eyelashes scrape the back of the lens in their eyeglasses; the lenses could be made with a steeper base curve than the standard base curve to remedy this problem. Although Dr. Walby testified that there are optical reasons for ordering a lens with a special base curve, he did not explain any reasons except those noted. Ady Optical ordered lenses with special base curves for Recipients 1, 2, 4 through 8, 11 through 14, and 17 through There is nothing on the laboratory order forms for these recipients to indicate that special base curves for the lenses ordered were optically necessary, and there is nothing inherent in the prescriptions that would justify lenses with special base curves. On the laboratory order forms for all of the above recipients except for Recipient 8 and Recipient 23, the special base curve specified was "variable," "special," "thinnest," "flat," "flattest," and "match Rx." These descriptive terms do not provide a specific base curve measurement to the laboratory, and the base curve measurement was determined by the laboratory rather than by an optician. On the laboratory order form for Recipients 8 and 23, base curve measurements of +4.0 and +6.0, respectively, were specified; these base curve measurements are, however, standard for the prescriptions of Recipients 8 and 23. The claims submitted by Ady Optical for payment for lenses with special base curves for these recipients are, therefore, disallowed. The laboratory order forms for Recipients 10, 15, 16, 20, and 30 did not include an order for lenses with special base curves. The claims submitted by Ady Optical to Medicaid for payment for lenses with special base curves for these recipients are disallowed. Oversized lenses Pursuant to the Coverage and Limitations Handbook, Medicaid will pay for oversized lenses, assigned procedure code V2780, for recipients whose eye-size is 56 millimeters or greater. Ady Optical submitted a claim to Medicaid for payment for oversized lenses for Recipient 23. Recipient 23's eye-size was specified on the laboratory order form as 50 millimeters, and the claim for payment for oversized lenses for this recipient is disallowed. Claims not supported by documentation All claims submitted to Medicaid for Recipient 6 for lenses ordered on June 13, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 9 for August 11, 1999, and for October 28, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 10 for lenses ordered on September 29, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 19 for lenses ordered on May 29, 1999, and June 12, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 22 for lenses ordered on April 7, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 26 for lenses ordered on July 16, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 27 for lenses ordered on August 23, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. Claims containing billing errors Mr. Jimenez does not challenge the disallowance of claims billed in error, specifically the claims for bifocal seg widths of over 28 millimeters for Recipients 20, 23, 26, and 27. Summary The evidence presented by AHCA is sufficient to support its determination that Ady Optical received Medicaid overpayments in the amount of $45,914.17.
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 finding that Ady Optical, Inc., received overpayments from the Medicaid program in the amount of $45,914.17 during the period extending from January 1, 1999, through June 30, 2000, and requiring Ady Optical, Inc., to repay the overpayment amount. DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 27th day of May, 2004.
