Findings Of Fact At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment. Sometime after the surgery, Mrs. Remington made a trip to Bolivia. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981). At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981). Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.
Recommendation Based upon the foregoing, it is RECOMMENDED: That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000. RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of July, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Kenneth E. Brooten, Jr., Esquire Post Office Box 788 Gainesville, Florida 32602 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0017971 (DPR) v. 82-2128 (DOAH) LICENSE NO. DN 0004385 PAUL E. PETERS, JR., D.D.S., Respondent. /
The Issue The issue in this case is whether the Board of Dentistry should discipline the Respondent on charges set out in an Amended Administrative Complaint filed by the Petitioner.
Findings Of Fact The Respondent is a licensed dentist in the state of Florida, having been issued license DN 14819. The Respondent was employed by the Collier County Health Department (CCHD) from 2001 to February 10, 2010. She began her employment as a dental assistant, worked as a dentist when she became licensed in Florida, and eventually became the director of the CCHD’s dental clinic. Prior to June 2008, the Respondent received training in providing “pre-orthodontic appliance therapy.” This therapy used appliances to move teeth to create and maintain space in the mouths of pediatric patients to facilitate future orthodontic therapy. The Respondent provided pre-orthodontic appliance therapy, and the CCHD billed Medicaid for reimbursement. As Respondent was starting to provide these services, Medicaid notified the CCHD that Medicaid would pay for them only if provided by an orthodontist or pediatric dentist. The Respondent’s billings would not be paid. When the CCHD was told this, its administrator, Stephanie Vick, told the Respondent and instructed her not to provide pre-orthodontic appliance therapy because Medicaid would not pay for it. Ms. Vick allowed the Respondent to complete cases already begun but not to initiate any new pre-orthodontic appliance therapy. After the conversation between the Respondent and Ms. Vick, Ms. Vick was told that the Respondent was prescribing new orthodontic appliances for patients, contrary to her instructions to the Respondent. On July 15, 2008, Ms. Vick gave the Respondent a written reprimand for “[p]oor performance” and “[v]iolation of law or agency rules.” The reprimand cited the use of orthodontic appliances for the dual purposes of maintaining space and actively moving teeth and other dental structures. It also stated that these appliances were being billed to Medicaid improperly as space maintainers. Ms. Vick discussed the reprimand with the Respondent. After the reprimand, Ms. Vick thought the Respondent was complying with her instructions. Her quarterly reviews of CCHD documentation seemed to corroborate her beliefs. However, at some point, Ms. Vick was told by dental clinic employees that the Respondent persisted in the conduct described in the reprimand. Ms. Vick investigated by reviewing additional documentation, including invoices from the E.P. Orthodontic Laboratory (the lab), which filled the CCHD’s prescriptions for dental appliances, and by interviewing clinic employees. The lab’s invoices led Ms. Vick to believe that the Respondent was violating her instructions regarding pre- orthodontic care and treatment while attempting to conceal her actions. On February 10, 2010, Ms. Vick confronted the Respondent with the results of her investigation and discussed the matter. After the discussion, the Respondent resigned from her employment. She did not admit to wrongdoing. On February 12, 2010, Ms. Vick made a notation in the Respondent’s personnel file that included: “The results of this review [of dental patient records from July 2009] supported that Dr. Aranda has continued to engage in improper charting of services, incorrect/legal billing code use and practices regarding interceptive orthodontic treatment and the need for signed protocol structures.” The notation continued to say that the Respondent was disciplined for the same issues in July 2008 and was persisting in those practices; that these matters were discussed; and that the Respondent chose to resign. The notation mentioned nothing about improper delegation. However, it appears that Ms. Vick came to believe during the course of her investigation of the Respondent that the Respondent was having a dental assistant named Paul Beingolea scale teeth and cement appliances, which he was not qualified to do. Ms. Vick confronted Mr. Beingolea with her belief. He denied it but chose to resign his employment. After the Respondent and Mr. Beingolea resigned, Ms. Vick notified the Agency for Health Care Administration (AHCA), which runs Florida’s Medicaid program, that the CCHD improperly billed and collected payment for pre-orthodontic therapies. AHCA and CCHD agreed to repayment to Medicaid for the resulting overpayments. Count I Deceptive, Untrue or Fraudulent Representations Count I is based on the Respondent’s dental care and treatment for eight Medicaid patients: M.B.; J.C.; K.E.; D.G.; M.G.; M.M.; T.N.-D.; and P.M. Specifically, Count I alleges that the Respondent prescribed pre-orthodontic active appliances for patients, made impressions to be used to fabricate the appliances, ordered them, fit them, and adjusted them. These appliances included Schwartz appliances, rapid palate expanders (RPEs), and anterior bite/inclined planes. These appliances are considered to be “active” because they move teeth and dental structures when “activated” by turning a screw or expanding loops. After the desired space is obtained through use of the appliances, it is common to leave the appliance in temporarily to maintain the space until the bone fills in and solidifies. In this mode, the appliance becomes “passive” and functions as a temporary retainer, but it is still considered to be an “active” appliance. Count I alleges essentially that the Respondent made deceptive, untrue or fraudulent representations in the patient’s charts, and in documents used to bill Medicaid for their dental care and treatment, by disguising pre-orthodontic care and treatment using active appliances, which was not covered by Medicaid, as non-orthodontic care and treatment using passive retainers that Medicaid would cover and pay. It is clear that the Respondent did not benefit financially from Medicaid’s payment of the care and treatment at issue. The Respondent was on a straight salary. She did not work overtime and got no bonuses. No actual Medicaid bills were in evidence. Instead, the Petitioner introduced documentation from the CCHD’s “HMS” system. The HMS system recorded patient demographics, personal information, insurance and billing information, and services provided. The HMS billing information was used by the clerical staff of the CCHD to bill Medicaid. The Respondent did not enter the billing information into the HMS system. This also was done by the clerical staff based on documentation referred to as a “super bill.” The CCHD’s dental practitioners, including the Respondent, created super bills based on their dental care and treatment of patients. After super bill information was entered into the HMS system, the super bill was discarded. None were in evidence. No member of the CCHD’s clerical staff testified, and there was no evidence about the Respondent’s actual entries on the super bill. There was no clear and convincing evidence as to what part the Respondent played in the generation of HMS billing information or the actual billing of Medicaid by the CCHD. Some of the entries in the patient’s charts probably could be attributed to the Respondent based on handwriting (although no witness identified the Respondent’s signature or handwriting). Some entries in the charts were followed by a stamp of a practitioner’s printed name and what appears to be her signature. Sometimes, a number of a day’s worth of charting (up to 30 or more patients) was done at one time in a collaborative fashion by several practitioners. Sometimes there was confusion and mix-ups. Sometimes, one practitioner mistakenly would stamp and/or sign an entry for another practitioner’s work. The charts in evidence included copies of prescriptions that appear to have been written by the Respondent for fabrication by the lab. At the CCHB, the prescription was written on a form called a “Retainers Prescription” that generated a carbonless copy when used. Typically, the white original (top) of the prescription form was sent to the lab, and the yellow carbonless copy was retained in the patient’s chart. Although the exhibits offered in evidence were copies, and all appeared to be white, the witnesses were able to tell the difference between the original (top) of the prescription forms and the bottom carbonless copies of the forms. As part of the investigation conducted by Ms. Vick, copies of what appear to be the lab’s invoices to the CCHD, and copies of what appear to be the original (top) of prescription forms, were obtained from the lab. Ms. Vick believed there were incriminating discrepancies between the documents she got from the lab and some of the carbonless copies of prescriptions in some of the patient charts. However, the documents obtained from the lab were excluded from evidence in this case and cannot support a finding that discrepancies existed. See Preliminary Statement and Endnote 3. The Respondent does not dispute that she prescribed Schwartz appliances, RPEs, and inclined planes for children who needed to regain a little space lost after baby teeth fell out and then maintain the lost space for permanent teeth that were coming in. She denies trying to hide what she was doing by making deceptive, untrue or fraudulent representations. The evidence as a whole supports the Respondent’s position. Patient M.B. The chart for M.B. indicates that the Respondent took upper and lower impressions on June 25, 2009, and wrote a prescription for a “Schwartz to regain space for # A. or space maintainer with loops.” M.B.’s chart referred to the appliance as a space maintainer. There also was an entry on August 21, 2009, indicating that the patient was instructed to “come back for adjustment” to alleviate discomfort and one on February 10, 2010, indicating that the appliance was checked and adjusted. There was HMS documentation indicating that the CCHD billed Medicaid for “diagnostic casts” on June 25, 2009. Patient J.C. The Respondent took upper and lower impressions and did a wax bite registration of the teeth of patient J.C. on May 14, 2009. The chart included two undated prescriptions. One was for a lower bilateral space maintainer. (The chart included two copies of this prescription.) The other was for an upper and lower Schwartz and included a notation that the upper Schwartz was to address “[r]ight side cross bite.” The patient chart referred to the delivery of a “lower bilateral space maintainer (modified)” on July 9, 2009, but there also were notes in the chart referring to orthodontic bands. There were two HMS entries dated July 9, 2009. One indicated “DEN SPACE MAINTAINER-FIX” was provided. The other indicated that a Medicaid bill was initiated. Patient K.E. The patient K.E. began receiving dental treatment at the CCHD dental clinic on September 8, 2005. On May 28, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant for upper and lower impressions, a bite registration, and orthodontic bands. Below the Respondent’s signature is an added entry by the Respondent stating, “note: B.S. Maintainer (RPE).” The Respondent also wrote and signed an undated prescription for an “upper RPE.” On August 18, 2009, the Respondent signed and stamped a dental assistant’s clinical notes in the patient’s chart indicating that a space maintainer was cemented using Fuji brand permanent cement. On September 30, 2009, the Respondent signed and stamped a dental assistant’s clinical notes in the patient’s chart indicating that the patient came to the clinic with a loose space maintainer that was re-cemented. There was HMS documentation indicating that the CCHD provided “diagnostic casts” for the patient K.E. on May 28, 2009; provided “DEN SPACE MAINTAINER-FIX” on August 18, 2009; provided “DEN RE-CEMTATION [sic] OF SPACE” on September 30, 2009; and initiated billing of Medicaid on those dates (but indicates there was no charge to Medicaid for re-cementing the appliance on September 30, 2009. Patient D.G. The patient D.G. began receiving dental treatment at the CCHD dental clinic on May 17, 2005. On August 19, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating: that a bilateral space maintainer was fitted and delivered to the patient D.G.; that the patient’s father was instructed in how the patient should wear, clean, adjust and clean it; and that the adjustments were to be performed once a week. On October 7 and December 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient presented with a loose space maintainer. On both occasions, the parent was instructed in how to take care of the appliance. The patient chart for D.G. is missing the carbonless copy of the prescription for the appliance. There was no evidence as to why it was missing or what it said. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on August 19, 2009; provided “DEN RE-CEMTATION [sic] OF SPACE” on October 7 and December 2, 2009; and initiated billing of Medicaid on those dates (but indicates there was no charge to Medicaid for any of those dates. Patient M.G. The patient M.G. began receiving dental treatment at the CCHD dental clinic on November 26, 2008. On April 23, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant for a diagnostic cast and a bite registration for an inclined plane. The chart also has the carbonless copy of the prescription written by the Respondent for an inclined plane. On June 25, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that a “space maintainer appliance” was delivered and that the family was given instruction on how to use it. On July 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient’s mother was adjusting the appliance (identified in the note as an “upper RPE”) once a week. On August 6, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the appliance (identified in the note as an “inclined plane”) was “working fine” and that the appliance was “trimmed today to improve the bite.” On October 20, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the patient’s teeth were “corrected of crossbite.” There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on June 25, 2009, and initiated billing of Medicaid on that date (but indicates there was no charge to Medicaid). Patient M.M. The patient M.M. began receiving dental treatment at the CCHD dental clinic on April 27, 2004. On March 17, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an existing space maintainer was removed, impressions were taken and bands, and bite separators were placed. The patient’s chart confirms that a space maintainer was provided for the patient about two years earlier, when the patient was six years old. No copy of a prescription for a new appliance is in the patient’s chart. On April 21, 2009, clinical notes were made by a dental assistant in the patient’s chart indicating that an appliance was received from the lab. On May 21, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper bilateral space maintainer was cemented and that the patient’s mother was explained how to adjust it. The Respondent struck the words “FAN appliance” and “use” and wrote the words “upper bilateral space maintainer” and “adjust” (respectively) above the stricken words. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on May 21, 2009, and initiated billing of Medicaid on that date. Patient T.N-D. The patient T.N-D. began receiving dental treatment at the CCHD dental clinic on July 8, 2008. On August 27, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper and lower bilateral space maintainer was modified, fitted, and delivered. On September 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that the upper and lower bilateral space maintainers were modified and adjusted and that the patient’s mother was instructed to open the appliance once a week and have the patient use it whenever not in school. Under the Respondent’s signature and stamp was a note in her handwriting: “modify space maintainer to regain lost space.” There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on August 27, 2009, and initiated billing of Medicaid on that date. Patient P.M. The patient P.M. began receiving dental treatment at the CCHD dental clinic on August 22, 2002. On July 2, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that upper and lower impressions were taken and bands were placed. The chart also has a copy of a prescription written by the Respondent for an upper RPE and a lower space maintainer. A clinical note signed by a dental assistant indicated that the clinic received an appliance for the patient on August 24, 2009. On October 28, 2009, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that an upper space maintainer was cemented using Fuji cement. On February 5, 2010, there are notes in the patient’s chart signed by another dentist that seem to indicate that the patient’s occlusion was adjusted. There was no testimony to explain the meaning of this, or other notes made by the dentist regarding “optibands” and removal of “canes(?).” On February 10, 2010, the Respondent signed and stamped clinical notes made in the patient’s chart by a dental assistant indicating that a lower bilateral space maintainer was fitted and adjusted with Fuji cement. There also were notes regarding care for the appliance. One note, written by the dental assistant, said: “Aunt was taught how to take care of appliance, she’ll be doing it twice a week.” That note was stricken and under the Respondent’s signature was a note in her handwriting: “Space maintainer needs to only observe for the properly works [sic].” See Finding 73, infra. There was HMS documentation indicating that the CCHD provided “DEN SPACE MAINTAINER-FIX” on October 28, 2009, and February 10, 2010, and initiated billing of Medicaid on those dates. Summary The Petitioner did not prove by clear and convincing evidence that the Respondent made deceptive, untrue or fraudulent representations in the charts for these patients. The charts would suggest that, to the contrary, the Respondent was not disguising the nature of her care and treatment of these patients (or was doing a poor job of it if she was trying to). The documentary evidence used to support the charges generally was unclear, confusing, and not well explained. The Respondent may have been insubordinate in providing pre-orthodontic care and treatment to patients against the instructions of her supervisor, which may have been grounds to terminate her employment, and the clinical notes in the patient charts may have been subject to criticism for being less than clear and completeness, but those were not the charges against the Respondent in this case, and no such charges were tried or proven in this case. Count II Improper Delegation Count II alleges that the Respondent delegated tasks to her dental assistant, Paul Beingolea, that he was not qualified to do. Patient F.C. On January 15, 2010, the Respondent signed and stamped a clinical note made in the chart of the patient F.C. It appears that some of the notes were made by a dental assistant named Irma Pineros and indicated that the patient received an examination and “prophy (Hygienist).” It appears that someone else wrote some of the notes in F.C.’s chart for that day, including notes saying “soft tissue inflamed,” “calculus present,” “localized gingivitis,” and “hand scaling.” From the handwriting, it appears that the Respondent may have written some, if not all of the notes that do not appear to be written by Irma Pineros. However, there was no testimony from her, the Respondent, or anyone else as to who wrote what part of the notes. Another dentist at the clinic named Laurie Housworth testified that she saw the Respondent examine the patient F.C. on January 15, 2010, and call in a dental assistant, named Paul Beingolea, who performed work on the patient for another 30 minutes or so. However, Dr. Housworth testified that she could not see exactly what Mr. Beingolea was doing at the time, and she did not observe the patient continuously for the full 30 minutes. It is possible that the Respondent returned to the examination room unbeknownst to Dr. Housworth. Dr. Housworth later pulled the chart to review the clinical notes and interpreted the chart to be indicating that hand-scaling was performed by a hygienist. Since there was no hygienist available at the clinic on that day, she believed the work was done by Mr. Beingolea. The Respondent and Mr. Beingolea denied that he performed hand-scaling on the patient F.C. on January 15, 2010. The Respondent testified that she never instructed a dental assistant to perform hand-scaling. Dr. Housworth did not confront the Respondent or either dental assistant at the time with her suspicion that hand-scaling was performed by Paul Beingolea. Nor did she report any improprieties to Ms. Vick at the time. During the investigation of the Respondent by Ms. Vick, Dr. Housworth related to her the incident concerning the patient F.C. on January 15, 2010. Patient P.M. On February 10, 2010, Dr. Housworth came to work early and observed Mr. Beingolea seating patient P.M. while the Respondent was working in another room with a different patient. Dr. Housworth testified that she saw that Mr. Beingolea had Fuji permanent cement and looked to her like he was placing something in the patient’s mouth. After that, she saw Mr. Beingolea release the patient. Later, she checked the chart and saw that Mr. Beingolea had made a clinical note saying: “Lower bi- lateral space maintainer fitted, and adjusted with fuji L.” He had then written: “Aunt was taught how to take care of appliance, she’ll be doing it twice a week (unreadable). Follow up 2 weeks.” The second part of the note was stricken, and it appears that the Respondent wrote: “Space maintainer needs to only observe for the properly works [sic].” Mr. Beingolea’s signature appears after the first two entries; the Respondent’s stamp and signature appears under the amendment to the notes. From what she had observed and these entries in the patient chart, Dr. Housworth believed that Mr. Beingolea was cementing a space maintainer in the patient’s mouth. Mr. Beingolea and the Respondent denied that he cemented the space maintainer. He testified that he placed the cement in the bands for the Respondent, she placed the space maintainer in the patient’s mouth and left, and he removed excess cement from the space maintainer. The Respondent testified that she never instructed a dental assistant to perform cement space maintainers or any appliances in a patient’s mouth using permanent cement. Dr. Housworth did not confront the Respondent or Mr. Beingolea at the time with her suspicion that Mr. Beingolea cemented a space maintainer in P.M.’s mouth using permanent cement. Instead, she reported it to Ms. Vick because she thought it was relevant to Ms. Vick’s investigation of the Respondent and Mr. Beingolea. Summary The Petitioner did not prove by clear and convincing evidence that the Respondent delegated to Mr. Beingolea the tasks of hand-scaling F.C.’s teeth or cementing a space maintainer in P.M.’s mouth using permanent cement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order dismissing the charges against the Respondent. DONE AND ENTERED this 24th day of May, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2016.
Findings Of Fact At all times relevant, respondent, Peter Kurachek, held a license to practice dentistry, No. DN005429, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry. In 1983, respondent employed Deborah Burr as a chairside dental assistant. Ms. Burr was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During the employment, respondent directed Ms. Burr to cement and remove temporary crowns, fabricate temporary crowns, fabricate temporary bridgework, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. From a period of 1983 into 1985, respondent employed Craig Marcum as a chairside dental assistant. Mr. Marcum was not licensed by the State of Florida as a dentist or dental hygienist nor did he hold an expanded duties certificate. During this employment, respondent directed Mr. Marcum to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, make adjustments on permanent dentures, pack retraction cord, and take opposing impressions for dentures. All of the foregoing were done without respondent's direct supervision. Many patients confused Mr. Marcum as a dentist. But the evidence did not prove that the respondent was aware of this behavior. This behavior became a greater problem when the respondent was opening a Sarasota office between May and December, 1984, and Marcum was in the Venice office under the supervision of other dentists. When the respondent re-assigned a trusted assistant to Venice in September, 1984, she told the respondent that Marcum was referring to himself, and holding himself out, as a dentist. The respondent reprimanded Marcum and had him sign a written promise to cease that behavior. There was no evidence that Marcum continued this behavior after the reprimand. On at least one occasion, Eugena Whitehead, respondent's receptionist, observed Mr. Marcum using a low speed drill inside a patient's mouth. Ms. Whitehead immediately informed respondent of Mr. Marcum's conduct. Respondent took no immediate action but allowed Mr. Marcum to continue using the drill. While in respondent's employ, Mr. Marcum wrote dental prescriptions under respondent's name. But the evidence did not prove that the respondent did not dictate the prescription or, if he did not, that the respondent knew about forged prescriptions. In 1983, respondent employed Pam Anderson as a chairside dental assistant. Ms. Anderson was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Anderson to cement and remove temporary crowns, fabricate temporary crowns, do temporary fillings, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. In 1983, respondent employed Patricia M. Lacher as a chairside dental assistant. Ms. Lacher was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Lacher to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, take opposing impressions for permanent dentures, make adjustments on permanent dentures, remove sutures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. In 1983, respondent employed Gwen Green as a chairside dental assistant. Ms. Green was not licensed by the State of Florida as a dentist or dental hygienist nor did she hold an expanded duties certificate. During this employment, respondent directed Ms. Green to cement and remove temporary crowns, fabricate temporary crowns, make adjustments on temporary bridgework, make adjustments on permanent dentures, and pack retraction cord. All of the foregoing were done without respondent's direct supervision. Through 1983 and 1984, Dr. Kurachek imposed an office policy that dental assistants, not dentists or dental hygienists, perform the duties of packing retraction cord, fabricating temporary crowns and bridges to a dentist's specifications, and adjusting permanent dentures to a dentist's specifications, all without direct supervision. Since some time in 1985, the respondent altered his practices to some extent. He no longer has dental assistants place or remove temporary restorations or cement temporary crowns and bridges or take study impressions unless the dental assistant has an expanded duties certificate and is under direct supervision. He does not allow dental assistants to place or remove or cement or recement permanent crowns or bridges, take final impressions for dentures, pack retraction cord, use a handpiece, or drill, in a patient's mouth or do temporary fillings regardless whether the dental assistant has an expanded duties certificate. He still has dental assistants, with or without the expanded duties certificate, make temporary crowns and bridges to his or another dentist's specifications outside of the mouth and adjust permanent dentures to his or another dentist's specifications, both outside the mouth either in a laboratory or in the operatory which serves as a laboratory and both under the direct supervision of the responsible dentist. The respondent understands that these procedures are legal based on his understanding of what DPR representatives have told dental assistants in his employ.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Dentistry enter a final order: holding the respondent, Peter Kurachek, D.D.S.: (a) guilty as charged of five counts of violating Section 466.028(1)(g) and (aa) (1983), one for each of the dental assistants Burr, Marcum, Lacher, Anderson and Green; and (b) guilty of a sixth count, as charged, for violating Section 466.028(1)(bb) (1983); imposing a $5,000 fine payable within 30 days; suspending the respondent's license for a period of six months; and placing the respondent on probation for one year after reinstatement of his license. RECOMMENDED this 15th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of March, 1988.
The Issue Whether Petitioner should receive a refund for an alleged overpayment of dental insurance premiums.
Findings Of Fact The Division of State Group Insurance (Division) is the executive agency within the Department of Management Services (Department) that is responsible for the administration of the State Group Insurance Program (Program). Isaacs was first employed with the State of Florida in 1993, and remained employed with the State until March 2011, when he retired. According to Isaacs, when he originally signed up for dental insurance, there were only two options available for employees; an employee could sign up either for “employee” coverage or for “employee plus family” coverage. Isaacs chose “employee plus family” dental coverage, so that he and his spouse would have coverage. During his tenure as a State employee, Isaacs was married and had no children. At all times material to the instant case, Isaacs resided, and received his mail, at 13021 S.W. 116th Street, Miami, Florida, 33186. On January 1, 2005, the State of Florida started using an online system called “People First” to manage State of Florida employee payroll and benefit packages. Every employee and retiree was given a username and password to access the online system. Each employee’s payroll information, leave balances, and benefits information could be seen online. Pursuant to section 110.123(3)(h), every year there is a finite period of time during which State employees can sign up for benefit plans, or change their existing benefit plans, for the upcoming calendar year. This period is called “open enrollment.” Prior to open enrollment every year, People First mails out, to every State employee, a package which contains a personalized benefits statement and a Benefits Guide, which contains information as to all the benefit plans that are being offered for the upcoming calendar year. The benefits statement informs employees of the benefits they currently have and will continue to have during the upcoming calendar year, unless they make changes to their insurance or coverage level. On September 7, 2007, the Division mailed each participant in the dental insurance program a letter explaining significant changes to the dental program. This letter was mailed by first class mail to the address of record for each employee who was then enrolled in the dental program. Isaacs' address of record in People First was his mailing address: 13021 S.W. 116th Street, Miami, Florida, 33186. Isaacs claims that he never received this letter. The undersigned finds this testimony to not be credible, given that Isaacs' address has not changed in 33 years, and he was unaware of any other problems with delivery to this address. The September 2007 letter advised employees that there would be new coverage levels offered in 2008. It stated, in pertinent part: There will be new coverage levels offered in 2008. You may currently be enrolled in a coverage level that will not be offered. The new coverage levels are: ° Employee Only ° Employee + Spouse ° Employee + Child(ren) ° Family You will have the opportunity during the upcoming Open Enrollment to cancel coverage, change your coverage level, or switch to another dental plan. Any change you make will be effective on January 1, 2008. If you take no action, your dental coverage may be changed automatically for 2008. If you are currently enrolled in a coverage level that will not be offered in 2008, you will be enrolled in Family coverage. People First sent Isaacs open enrollment packages in 2007, 2008, 2009, and 2010. The 2008 package, sent on September 17, 2007, included a Benefits Guide which contained all the information as to the change in the dental insurance program. Employees were placed on notice that except for employees who had previously been enrolled for “Employee” coverage, all coverage levels would be moved to “Family” coverage unless the employees made changes during open enrollment. The package included instructions on how to make the coverage changes, and how to verify that those changes had been properly made. Isaacs never changed his dental plan coverage; therefore, he was defaulted to the “Family” coverage as of January 1, 2008. Due to his failure to act, he remained in that coverage until he retired. The open enrollment packages sent to Isaacs for years 2009, 2010, and 2011 included information as to the dental coverage tiers, and a personalized Benefits Statement which indicated which benefit plans Isaacs was enrolled in, and his coverage level. Every year, he could have made changes to his dental insurance coverage, but failed to do so. As of People First going “live” in 2005, all State employees could review their benefits and coverage levels online. Thus, Isaacs, on his state-issued desktop computer, had access to People First, and could have reviewed his coverage levels and benefit plans. Isaacs admitted at hearing that he did not review the open enrollment packages he received every year because he was under the impression, based on advice he was given, that he need not review the information if he was not making any changes to his coverage levels or benefit plans. He added that he was not sure if he even opened all the open enrollment packages that were sent through the years. Isaacs had the responsibility to open, review, and carefully read the open enrollment packages and all correspondence sent to him by his employer. Isaacs was advised of the changes to the dental plan, but did not review the information sent to him. He had ample notice of the change to the dental plan coverage levels, but failed to review the information, and failed to avail himself of the many opportunities he had to adjust the coverage level. He paid for more coverage than he needed because he ignored all the information sent to him, which gave him specific instructions on how to avoid that exact circumstance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Management Services enter an order denying Isaacs' request for a refund for his overpayment of dental insurance premiums. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
The Issue The issue for determination is whether Respondent, Ralph Toombs, committed violations of Chapter 466, F.S., with regard to two dental patients, as alleged in two Administrative Complaints. If the violations are found, some disciplinary action must be recommended.
Findings Of Fact Ralph E. Toombs, D.D.S., is and at all relevant times has been licensed as a dentist in the State of Florida having been issued license number DN 0007026. At all times relevant to the allegations of the two complaints, Dr. Toombs practiced general dentistry in West Palm Beach, Florida, under the group which he owned, the Florida Dental Group. He has since left the West Palm Beach area, and resides in St. Cloud, Osceola County, Florida. In March 1984, patient A.K. was referred to Dr. Toombs for a problem with the joint in her jaw, the temporal mandibular joint (TMJ). She was given a mouth brace, but lost it. She also obtained general dentistry services. After she lost the mouth brace, she moved into orthodontic treatment by an orthodontist, Edward Sheinis, D.D.S., who was employed by the Florida Dental Group. This treatment, including the fitting and adjustment of braces, lasted about a year, until May 1985. At that time Dr. Sheinis left the group and opened his own office in Coral Springs, Florida. When he left, Dr. Sheinis informed his orthodontic patients where he was going. Under his contract with the Florida Dental Group, the patients and their records belonged to the group. His contract expired on May 31, 1985, but Dr. Toombs asked him to leave the day before his final day for treating patients. Dr. Sheinis felt that Dr. Toombs had the idea that he was trying to take patients away. After Dr. Sheinis left, no orthodontist replacement joined the group. Dr. Toombs' office continued making appointments for A.K. and she was treated by him in June, July and August. A. K.'s insurance company had paid for her orthodontic treatment plan in advance. She did not ask for return of the money, but neither was it offered. She did not want to travel to Dr. Sheinis' new office and she also felt that she had already paid the group for the services. She anticipated that a new orthodontist would be hired. Dr. Toombs claimed that the orthodontic patients were given the choice of going with Dr. Sheinis, being referred to another orthodontist, or staying with the group until another orthodontist was found. He claims that in some cases, money was refunded to patients who sought treatment elsewhere. He does not make those claims specifically with regard to A. K. and her testimony that the options and possibility of refund were never discussed with her is credible, consistent, and convincing. The orthodontic treatment rendered by Dr. Toombs to A. K. in June, July and August 1985, was primarily for maintenance, rather than to advance her treatment plan. Ligatures were replaced or re-tied and some parts of the appliances were repaired. A new scheme of elastics was developed in the August appointment, which could have advanced her treatment, but was also only intended for maintenance, according to Dr. Toombs. A September appointment was made, but was cancelled by Dr. Toombs' office and another appointment for October was made. That appointment was also cancelled by Dr. Toombs' office. By September or October the Florida Dental Group was in bankruptcy; the office was closed down and the patient files were in the hands of a trustee. Some records are still inaccessible. A. K. attempted to contact the office, but there was no answer. She heard from a friend that Dr. Toombs had left. She called the American Dental Association and was told they did not know his whereabouts. She then returned for treatment to the dentist who had originally referred her for the TMJ treatment, David Feuer, D.D.S., an orthodontist. A primary purpose of orthodontic treatment is tooth movement. If a patient's treatment is simply maintained, but not advanced for two months, there may not be harm, but minimum acceptable standards of dental practice require that the patient be referred promptly when the treating dentist cannot continue the appropriate treatment plan. The evidence does not clearly establish Dr. Toombs's lack of competence to appropriately continue A. K.'s orthodontic treatment. Therefore, when Dr. Sheinis left, he had the choice of making a referral and transferring the payment, or pursuing the treatment himself. He did neither. By his own admission, in a response to DPR investigator, Charlene Willoughby (Petitioner's Exhibit #7-AK) Dr. Toombs did nothing more than maintain A. K. orthodontically, by changing ligature ties. His attempt at hearing to explain that course as necessary to undo substandard work by Dr. Shienis is unsupported by any competent evidence. Patient S.C. Between approximately February 1984, and October 1985, Ralph Toombs provided dental services to patient, S.C. Those services included, among others not pertinent to this proceeding, the fabrication, fitting, and delivery of a maxillary bridge and lower partial denture. In lay terms, this involved basic full mouth reconstruction. At the time that S.C. began seeing Dr. Toombs he had already had bridge work beginning in 1970. He first saw Dr. Toombs on an emergency basis when he had fractured part of that work. When reconstruction is done, it is necessary to provide a structure to support the bridge, where the existing teeth are incapable of that support on their own. Two methods of support are a post and core, and pins. Pins are used when there is more existing structure; they are screwed into a tooth. The post and core is used generally when teeth have been endodontically treated (root canal therapy). The post is inserted through the central canal area into the tooth. The post provides more stability. A tooth that has been treated endodontically is devitalized, dry and fragile. The use of pins in such teeth is likely to cause crazing (small multiple cracks) or fractures; the support is weakened, and either it fails or causes failure in another site in the structure. In S.C.'s reconstruction, Dr. Toombs extensively used pins in devitalized teeth, in some instances as many as four or five pins in a single tooth. Dr. Toombs installed a bridge, but it cracked, and he replaced it. Later, shortly after Dr. Toombs closed his office in September or October 1985, S.C. returned to his prior dentist, Steven E. Kiltau, DDS, with a complaint that the porcelain had fractured and that his lower bridge work kept falling out. Dr. Kiltau found the bridge work loose and fractured. There were also bulky margins and open margins, or spaces between the original tooth and the crown, allowing the accumulation of food debris. Dr. Kiltau also suspected that some of the pins had perforated the sides of the teeth. Dr. Kiltau and other dentists who treated S.C., both before and after Dr. Toombs, as well as experts retained by Petitioner, attributed the failure of the structure provided by Dr. Toombs to his inappropriate use of pins. The testimony of these witnesses established uneqivocally that this aspect of the treatment violated minimum standards of performance. Petitioner did not, however, establish that the bulky and open margins were caused by Dr. Toombs' negligence. Some evidence of decay was apparent in S.C.'s teeth and the witnesses were reluctant to conclude that this was the result, and not the cause of the margins.
Recommendation Based on the foregoing, it s hereby RECOMMENDED: That the Board of Dentistry enter a final order, finding Respondent guilty of violations of Sections 466.028(1)(u) and (y), F.S., assessing an administrative fine of $3,000.00, and placing Respondent on probation for two years, with the requirement that he also attend such continuing education courses as the Board finds appropriate. Although this recommended penalty is less than that suggested by counsel for Petitioner, it is still within the guidelines of the Board in Rule 21G-13.005, F.A.C. DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Adopted in Paragraph 6. Adopted in Paragraphs 6 and 7. 7 through 10. Rejected as statements of testimony, rather than findings of fact. 11. Adopted in Paragraph 6. 13. through 15. Rejected as statements of testimony rather than findings of fact. Respondent, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Rejected as inconsistent with the weight of the evidence. Her continuation was not entirely voluntary; she had paid for the treatment and was not given an alternative. Rejected as unsupported by credible evidence. Rejected as contrary to the evidence. Adopted in Paragraph 5. Rejected as contrary to the weight of evidence. through 15. Rejected as immaterial. Petitioner, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 10, except that, according to the record, S.C.'s and treatment by Dr. Toombs began in 1984. Adopted in Paragraph 13. through 11. Rejected as statement of testimony, rather than findings of fact. Rejected as immaterial. Other competent evidence established the existence of decay. and 14. Rejected as statements of testimony. Adopted in Paragraph 13. Rejected as a statement of testimony. through 22. Rejected as unnecessary or a statement of testimony. The margins were proven; their cause was not proven. Respondent, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. and 4. Adopted in Paragraph 10, except the record establishes that treatment commenced in 1984. 5. through 8. Rejected as unnecessary or immaterial. Rejected to the extent that the finding implies that failure was not due to Respondent's negligence. Adopted in Paragraph 14. through 19. Rejected as unnecessary. 20. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation 1520 East Livington Street Orlando, Florida 32803 Ronald M. Hand, Esquire 241 East Ruby Avenue Waterfront Square, Suite A Kissimmee, Florida 32741 William Buckhalt Executive Director Dept. of Professional Regulation Board of Dentistry 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Background Petitioner, Richard Alan Cohen, sat for the dental licensure examination in December 1992 and received an overall score of 2.98 for the clinical portion of that examination. The minimal passing score for the clinical portion of the examination was 3.0. After receiving notification that he failed to achieve a passing score on the examination, petitioner challenged respondent's grading of three procedures, number 01, 05 and 06. Respondent rejected petitioner's challenge, and petitioner filed a timely request for a formal hearing pursuant to section 120.57(1), Florida Statutes, to contest respondent's grading of those procedures. At hearing, petitioner abandoned his challenge to the grading of procedures 01 and 05. The examination procedure During the course of the examination at issue, the candidates were called upon to exhibit, with regard to procedure 06, certain manual skills relevant to an endodonic procedure. Specifically, the candidate was required to prepare a tooth, which had been extracted and mounted in a mold, for what is commonly called a "root canal." Preparing for the procedure included the cleaning and shaping of the interior of both root canals from each apex (the tip of the root) up to the access area near the crown (top) of the tooth. Thereafter, sealant was to be sprayed into the canal, and gutta percha condensed (compressed) in the canal until it was completely filled. The goal of the procedure was to get a seal within one half to one millimeter of the apex, and to fill the canal so there were no voids. The quality of a candidate's performance on the procedure was graded by three examiners who assigned grades of 0 to 5 based on their assessment of the candidate's performance. The scores assigned were then averaged to derive the score achieved by the candidate on the procedure. In scoring, a grade of "0" represented a complete failure, a grade of "3" represented a minimally acceptable dental procedure, a grade of "4" represented a better than minimally acceptable dental procedure, and a grade of "5" represented an outstanding dental procedure. See, Rule 61F5-2.013, Florida Administrative Code. Petitioner's examination results Petitioner received a grade of 3.66 for procedure 06, based on scores of 3, 3, and 5 from the individual examiners. Although a passing score on procedure 06, petitioner's overall score on the clinical part of the examination was 2.98; a score below the minimum 3.00 required to pass that portion of the examination. According to the grade sheets, the two examiners who assigned petitioner a grade of 3 observed that petitioner failed to properly fill the canal spaces with gutta percha. In the opinion of the one examiner who testified at the hearing, such observation was based on his examination of an x-ray (petitioner's exhibit 1D) which reflected that the canal was filled beyond the apex and there appeared to be some spacing between the wall of the canal and the filling material. A review of the examination results At hearing, the proof demonstrated that the quality of petitioner's performance on that portion of procedure 06 pertinent to this case is aptly reflected on the x-ray marked as petitioner's exhibit 1D. That x-ray reflects, with regard to one of the canals petitioner filled, what is either a void or filling material beyond the apex of the root. Either event evidences a failure to properly fill the canal space, and warrants a grade of less than 5. Here, petitioner contends he should be awarded a grade of 4 for the procedure. The proof fails, however, to support his contention. If the image reflected by the x-ray is gutta percha beyond the apex, petitioner's performance on the procedure would not meet minimally acceptable dental standards and would merit a failing grade. If on the other hand, the material extending beyond the apex is sealant or the image reflected by the x-ray is a void, the procedure was acceptable, but warranted a grade of less than 5. Under such circumstances, it is concluded that the proof fails to demonstrate that the grades of 3 accorded petitioner were baseless, lacking in reason or that in deriving such grades the examiners departed from the essential requirements of law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the subject petition. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of February 1994. Hearings 1550 Hearings 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 22nd day of February
Findings Of Fact At all times material hereto, Respondent has been licensed to practice dentistry in the State of Florida, having been issued license number DN 0006941. In May, 1987, Respondent's son Cesar L. Palomeque was neither licensed as a dentist in the State of Florida nor as a dental hygienist. He became a licensed dentist in the State of Florida in August, 1987. Cesar L. Palomeque was employed by Respondent and worked in her office during May of 1987. At that time Respondent knew that Cesar Palomeque was not a licensed dentist or a licensed dental hygienist. In early May of 1987, J.L.'s mother and grandmother were in a cafeteria/bakery located downstairs from Respondent's dental office in Hialeah. J.L.'s grandmother struck up a conversation with a gentleman who was there. He introduced himself to the women as Cesar Palomeque, told them that he was a dentist who practiced upstairs, and encouraged them to visit him professionally since he charged quite reasonable prices. Pursuant to an appointment made by his mother, on May 13, 1987, J.L. went to Respondent's Hialeah office. On that date, patient J.L. had x-rays taken, received a prophylaxis and scheduled further treatment. He returned for that subsequent treatment on May 20, 1987. During May of 1987, Respondent's dental office consisted of a waiting area and a large operatory. The operatory consisted of three treatment bays. The treatment bays were separated from each other only by partitions which extended a few feet up from the floor. Although patients seated in a chair in one of the treatment bays could not see a patient in one of the other treatment chairs due to the partition, everything occurring within one of the treatment bays could be heard throughout the room, and a person standing anywhere in the room could see what was taking place within any of the treatment bays. On May 20th, J.L. was escorted into the operatory and placed in one of the treatment bays by Cesar Palomeque. At the time that Cesar Palomeque escorted J.L. into the operatory and placed him in one of the treatment chairs, Respondent and her dental assistant were working on a patient in the first treatment bay. Cesar Palomeque placed J.L. in one of the chairs, placed a bib on him, laid out instruments and filled the water cup. During the time J.L. was in the chair on May 20th, he was very nervous and restless since he knew he was going to have a tooth drilled and filled. He would not open his mouth and was very uncooperative. Cesar Palomeque spoke with the boy and attempted to comfort him unsuccessfully. Cesar Palomeque summoned J.L.'s mother into the operatory because J.L. was so uncooperative. J.L.'s mother came into the operatory, stood a few feet away from the chair in which her son was seated, told him to be cooperative, and stayed there observing during the balance of the treatment her son received that day. On May 20, 1987, Cesar Palomeque drilled and filled one of J.L.'s teeth. While Cesar Palomeque was drilling and filling J.L.'s tooth, Respondent could hear the disturbance created by J.L. and could see the treatment being rendered to J.L. by Cesar Palomeque. She knew at the time that Cesar Palomeque was drilling and filling J.L.'s tooth. On May 13 or on May 20, 1987, when J.L. was leaving Respondent's office, he was given a tooth brush bearing the inscription "Dr. Cesar Palomegue." Drilling and filling a tooth is a non-reversible dental procedure. It constitutes the practice of dentistry. All monies paid to Respondent for services rendered to J.L. were refunded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her in this cause and suspending Respondent's license to practice dentistry for a period of six months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1989. LINDA M. RIGOT 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 31st day of October, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-1964 Petitioner's proposed Findings of Fact numbered 1, 3, 4, and 7-12 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed Finding of Fact numbered 2 has been rejected as being unnecessary for determination of the issues in this cause. Petitioner's proposed Finding of Fact numbered 5 has been rejected as being subordinate to the issues under determination in this cause. Petitioner's proposed Finding of Fact numbered 6 has been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed Findings of Fact numbered 3-8, 10, 11, 14, and 19 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed Findings of Fact numbered 1, 2, 9, 12, 13, 16, and 18 have been rejected as being unnecessary for determination of the issues in this cause. Respondent's proposed Findings of Fact numbered 15 and 20-23 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's proposed Findings of Fact numbered 17 and 24 have been rejected as being irrelevant to the issues under consideration in this proceeding. COPIES FURNISHED: Jack L. McRay, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold M. Braxton, Esquire 9100 South Dadeland Boulevard Suite 406 Miami, Florida 33156 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue As to Case No. 89-5273, whether Respondent committed the offenses set forth in the Amended Administrative Complaint dated December 28, 1989, and, if so, the penalties that should be imposed. As to Case No. 89-6492, whether Respondent committed the offenses set forth in the Administrative Complaint dated October 31, 1989, and, if so, the penalties that should be imposed. As to Case No. 90-5801, whether Respondent committed the offenses set forth in the Administrative Complaint dated January 18, 1990, and, if so, the penalties that should be imposed. As to Case No. 90-5802, whether Respondent committed the offenses set forth in the Administrative Complaint dated March 9, 1990, and, if so, the penalties that should be imposed.
Findings Of Fact At all times pertinent to these proceedings, Respondent, Michael Albert, was engaged in the general practice of dentistry in the State of Florida. Respondent is the holder of license number DN0009815, which was issued by Petitioner and which authorizes him to engage in the practice of dentistry in the State of Florida. His office, known as "9 to 9 Family Dental Centre" 1/ , was located at 7015 Beracasa Way, Boca Raton, Florida 33433. CASE NO. 89-5273 - PATIENT S.D. Patient S.D. is a female who was born November 6, 1950. S.D. went to Respondent for the first time in May 1987, for a general examination and cleaning. S.D. had her four front upper teeth (teeth 7, 8, 9, and 10) capped when she was between 12 and 14 years of age. The cap on one of those teeth had been chipped and had begun to flake, and S.D. wanted that crown replaced. Respondent recommended to S.D. that she have those four caps replaced to maintain a match- up in color and also recommended that she have three other teeth (teeth 12, 14, and 31) capped because those teeth had open margins. S.D. knew that Respondent's recommendation to have teeth 7, 8, 9, and 10 recapped was based solely on aesthetic considerations. S.D. concurred with the recommendations as to teeth 7, 8, 9, and 10, and S.D. agreed to allow Respondent to perform the work that he had recommended on those teeth as well as the recommendations he made as to teeth 12, 14, and 31. Respondent took x-rays of S.D. and ultimately capped the seven teeth he had identified. S.D. was uncertain as to the order in which Respondent performed this work. Respondent's records reflect that S.D. visited Respondent on May 13, 1987, and on May 21, 1987, and that during those visits the Respondent capped teeth 7, 8, 14, and 31. Respondent's records further reflect that S.D. visited Respondent on May 28, 1987, and on June 15, 1987, and that during those visits the Respondent capped teeth 9, 10, and 12. S.D. had no complaints about the work performed by Respondent until she began to develop pain in a tooth that Respondent had capped. She returned to Respondent who replaced the crown on that tooth. The pain that S.D. had experienced went away after the crown was replaced, but S.D. had lost confidence in Respondent. Consequently, S.D. went to another dentist when it was time for her six month checkup. S.D. visited Dr. Clare Garner on March 28, 1988. Dr. Garner was of the opinion that S.D. needed a root canal and a new crown on tooth 31, that she needed a new post and core on tooth 7, and that she needed a root canal on tooth S.D. did not return to Dr. Garner for follow-up care. S.D. visited Dr. Michael Flax for the first time on April 4, 1988. During subsequent visits in April and May of 1988, Dr. Flax performed root canal therapy on teeth 7 and 31. S.D. later experienced pain in tooth 10. Dr. Flax performed an apicalectomy on tooth 10 and determined that tooth 10 had a fracture at the apex which he believed was caused by an oversized post being placed inside of the tooth. Dr. Flax did not know who placed the post. S.D.'s last visit with Dr. Flax was on September 8, 1988. Dr. Flax recommended a general dentist to "take care of her crowns". 2/ There was no competent, substantial evidence that the initial crowns done by Respondent had any open margins. Respondent used a panorex x-ray together with bite-wing x-rays in performing his work on S.D. There are some areas that one can see on a periapical x-ray that one cannot see on a panorex x-ray. Likewise, there are areas that one can see on a panorex x-ray that one cannot see on a periapical x- ray. There was dispute among the experts as to whether Respondent should have also used a periapical x-ray in performing his work on S.D. Petitioner's experts clearly preferred to use periapical x-rays. The greater weight of the evidence, however, is that a panorex x-ray can provide sufficient detail when used with the bite-wing x-rays. There was no evidence that the original panorex x-ray upon which Respondent based his diagnosis had insufficient detail. The record failed to establish by clear and convincing evidence that Respondent's use of the panorex x-rays and the bite-wing x-rays fell below minimum standards of care. Dr. Flax testified that Tooth #7 should have been pulp tested for vitality before any further prosthetics were placed onto the tooth. However, he did not testify that the failure to pulp test Tooth #7 for vitality fell below minimum standards. Dr. Flax also testified that another tooth (which was not identified by number) should have been retreated with a root canal before a crown was placed on top of it. Dr. Flax did not testify that the failure to perform this root canal prior to placing the crown fell below minimum standards. Dr. Flax also testified that there was a crack in the apex of tooth #10 due to an incorrectly placed or incorrectly sized post within the tooth. He did not testify that the placing of the post fell below minimum standards and he did not know whether Respondent placed the post. Symptomatic periapical abscesses can develop at any time. The record fails to establish by clear and convincing evidence that there was a periapical abscess that existed at the time Respondent treated S.D. or that the failure to either treat or diagnosis any abscess was below acceptable standards of care. The record fails to establish by clear and convincing evidence that the root canals performed by Dr. Flax were necessary because of substandard treatment by Respondent. There was no testimony that the records maintained by Respondent were inadequate. CASE NO. 89-6492 - PATIENT E.M. E.M. is a female who 73 years of age when she first visited Respondent on April 14, 1988. The initial visit was prompted by pain from an abscess. Respondent performed root canal therapy on E.M.'s teeth 18 and 26. Between April 14, 1988, and October 5, 1988, Respondent fitted E.M. with a complete denture on her upper arch and with a bridge on her lower. The upper denture placed by Respondent did not fit correctly. On a subsequent visit, Respondent did a chair side reline of E.M.'s upper denture. There was disagreement among the expert witnesses as to whether the chair side reline was appropriate since E.M. was an edentulous patient. This conflict is resolved by finding that the chair side reline performed by Respondent did not fall below minimum standards of care. There was a substantial and significant personality disagreement between E.M. and Respondent and his staff. E.M. was unhappy with the services performed by Respondent and complained that the upper plate did not fit correctly even after the chair reline. As a result of this disagreement, E.M. refused to return to Respondent for follow-up care to adjust her dentures. Although there was testimony that Respondent should have been able to better fit E.M.'s upper denture initially, the greater weight of the evidence and the more persuasive expert testimony is that follow-up care is important for the proper fitting of dentures. Dentures have to be adjusted on the average eight times before the fit is proper and the normal break-in period for dentures is between two and six months. E.M.'s refusal to submit to follow-up treatment contributed in large part to the dissatisfaction she had with the dentures fitted by Respondent. Although E.M. complained of pain, she had not seen any dentist for over two years. At the time she was examined by Dr. Martin Staub, Petitioner's expert, on February 17, 1989, she was still able to wear the dentures that Respondent had prepared for her. Dr. Staub found that the denture adaptation was poor in the post-dam area causing the denture to slip and to have insufficient suction. Dr. Staub found that the denture finish was rough and inconsistent due to excess pieces from the reline adhering to the buccal portion of the denture and being too thick in the palatal area. Despite these findings, Dr. Staub testified that he considered Respondent's performance as a dentist had fallen below minimum standards of care only in that he should have been more patient with E.M. and that he should have been more caring and compassionate. 3/ Dr. Staub's report reflected a finding that there were open margins on teeth 19, 27, and 31. During his cross examination, he admitted that the tooth he reported as being tooth 27 could have been another tooth since Respondent's records reflect that tooth 27 had been extracted. Consequently, there would not have been a margin on tooth 27. Respondent placed the crowns on E.M.'s teeth 19 and 31 with temporary cement because Respondent anticipated that she would require periodontal treatment due to her poor oral hygiene. There was a dispute among the expert witnesses as to whether the margins that Dr. Staub observed were caused by substandard treatment by Respondent. This conflict is resolved by finding that the evidence fails to clearly and convincingly establish that these margins were the result of substandard care by Respondent. These margins could have resulted from causes that should not be attributed to Respondent. For example, there was testimony that the margins could have resulted from the temporary cement washing out or by natural changes in E.M.'s mouth. Petitioner failed to establish that the dental care and treatment rendered E.M. by Respondent fell below minimum standards of care. CASE NO. 90-5801 - PATIENT H.F. H.F. is a female who was born April 6, 1970. H.F. resided in Atlanta, Georgia, at the time of the formal hearing, but she resided in Boca Raton, Florida, with her family when Respondent examined her. H.F. was examined for the first time by Respondent on August 20, 1987. On August 2, 1988, H.F. returned to Respondent for a checkup and cleaning. Respondent diagnosed cavities in H.F.'s teeth numbers 3, 14, 15, 18, 20, 29, and 31, and presented H.F. with a treatment plan requiring all seven teeth to be filled and called for amalgam restorations. In making his diagnosis, Respondent took x-rays of her teeth, visually inspected her mouth, and probed her teeth with the use of an explorer. H.F. did not return to Respondent to have her teeth filled. On August 19, 1988, H.F. went to Dr. Anders K. Finnvold, her mother's dentist, for a second opinion. Dr. Finnvold conducted a thorough examination of H.F. Dr. Finnvold examined a copy of the x-rays that Respondent had taken of H.F., visually inspected her mouth and probed her teeth with the use of an explorer. Dr. Finnvold found no cavities. On October 12, 1989, Dr. Finnvold examined H.F. for the second time and again found no cavities. On August 2 or 3, 1990, Dr. George C. Karr, one of Petitioner's expert witnesses, examined H.F. and found clinical decay on teeth numbers 2, 3, 14, 15, and 18. Dr. Karr did not find any cavity on H.F.'s teeth numbers 20, 29, and Dr. Karr considered H.F. to have poor oral hygiene. Dr. Karr was of the opinion that Respondent had misrepresented H.F.'s condition and that his treatment plan was over-zealous and below minimum standards. A caries is a technical term for a cavity or a hole in the tooth and results from acid dissolution of the enamel and/or dentin structure of a tooth. Poor oral hygiene contributes to the development of caries. H.F. had poor oral hygiene. A caries may be diagnosed by use of an x-ray, by visually inspecting the mouth, by probing the teeth with an explorer, or by a combination of those diagnostic means. In diagnosing caries by use of an explorer, the dentist is making an educated assumption based on the resistance the dentist feels in probing a pit or fissure. In making this educated assumption, the dentist should consider the patient's oral hygiene and the patient's susceptibility to developing cavities. A catch or resistance when using an explorer indicates that either a fissure has become carious or has the probability of becoming carious. If a sharp explorer is used and it hangs on the teeth, that is indicative that there is either decay present or a situation of pre-decay. It is within acceptable standards of care to recommend filling those areas. The evidence was clear that the detection of cavities by use of an explorer is a difficult task, and that legitimate differences of opinion can occur. The disagreements between Respondent, Dr. Finnvold, and Dr. Karr illustrate that difficulty. Respondent used a sharp explorer to examine H.F.'s teeth. The explorer grabbed or stuck on teeth 3, 14, 15, 18, 20, 29, and 31, and he believed that each of those teeth should be treated in the manner he recommended. It is dentally improper to deliberately misrepresent the existence of decay and the need for treatment. However, the fact that Respondent was of the opinion that there existed cavities that Dr. Finnvold and Dr. Karr did not detect does not establish, clearly and convincingly, that Respondent deliberately misrepresented H.F.'s condition or that he failed to practice within acceptable standards of care. CASE NO. 90-5802 - PATIENT L.M. During the summer of 1987, L.M. presented to the Respondent for routine dental care. This was L.M.'s initial visit. Respondent examined L.M., took x-rays, and then advised L.M. that he suspected that she had a little problem with her gums. Respondent directed her to Dr. Rosa, 4/ a periodontist who worked in the same dental office as Respondent. Respondent advised Dr. Rosa that he felt that L.M. had a problem with her gums and asked Dr. Rosa to examine her. Dr. Rosa diagnosed periodontal breakdown and recommended an extensive treatment plan for L.M., which included root planing, dental wedge procedures, and osseous surgery. The estimate for the work to be performed was given to L.M. on a form which reflected that it was from "9 to 9 Dental Centre". Although it was established that "9 to 9 Dental Centre" was the name of the dental office in which Respondent practiced, and that L.M. associated that name with that of Respondent, there was no showing as to how or why Respondent should be held responsible for acts of Dr. Rosa. The evidence clearly establishes that Respondent was not acting below accepted standards merely in recommending that a periodontist with whom he worked examine a patient he thought may have a periodontal problem. The record does not establish that Respondent misrepresented L.M.'s condition when he asked Dr. Rosa to examine her. Petitioner's experts who later examined L.M. established that L.M. did not have periodontal problems that would justify the recommended treatment plan proposed by Dr. Rosa.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of fact contained herein and which dismisses all charges brought against Respondent in Case No. 89-5273, which dismisses all charges brought against Respondent in Case No. 89-6492, which dismisses all charges brought against Respondent in Case No. 90-5801, and which dismisses all charges brought against Respondent in Case No. 90-5802. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of November, 1991. CLAUDE B. ARRINGTON 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 27th day of November, 1991.
The Issue Whether Ronald M. Marini, D.M.D., P.A. (Respondent), received Medicaid overpayments that the Agency for Health Care Administration is entitled to recover; and whether sanctions and costs should be imposed against Respondent.
Findings Of Fact The Medicaid program (Medicaid) is a federal and state partnership that funds health care services for qualified individuals. Petitioner is the state agency charged with administering Medicaid in Florida. Petitioner is legally authorized to monitor the activities of Medicaid providers and to recover “overpayments.” Overpayments include reimbursement for services that are not medically necessary, as verified by records existing at the time of service. Petitioner is also empowered to impose sanctions and recover costs against offending providers. During all times relevant hereto, Respondent was a Florida Medicaid provider authorized to provide dental care to Medicaid beneficiaries and to receive reimbursement for covered services. The dental practice of Ronald M. Marini, D.M.D., P.A., is owned by Ronald M. Marini, D.M.D. Dr. Marini has continuously practiced dentistry since graduating in 1967 from the University of Pittsburgh School of Dental Medicine. Dr. Marini’s practice focuses primarily on the treatment of children who have dental coverage through Medicaid. Dr. Marini is not board-certified in any specialty. Pursuant to what is commonly referred to as the “pay- and-chase” system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner subsequently determines that the provider was paid for services rendered which were not in compliance with Medicaid requirements, then Petitioner seeks reimbursement from the provider. The Medicaid Provider Agreement is a voluntary contract between Petitioner and a Medicaid provider. Paragraph 3 of the Medicaid Provider Agreement states that “[t]he provider agrees to comply with local, state, and federal laws, as well as rules, regulations, and statements of policy applicable to the Medicaid program, including the Medicaid Provider Handbooks issued by AHCA.” During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid Provider Agreement with Petitioner. By correspondence to Respondent dated February 27, 2014, Petitioner requested records related to claims billed to Medicaid by Respondent for the audit period March 1, 2010, through August 31, 2012. Respondent provided documents in response to Petitioner’s request for records. Petitioner completed a review of the records that Respondent submitted, and on July 9, 2014, issued a Preliminary Audit Report (PAR). Petitioner advised in the PAR that it believed Respondent was overpaid in the amount of $590,008.15. In response to the PAR, Respondent submitted additional information to the Agency. After receipt and evaluation of Respondent’s additional information, Petitioner issued its FAR finding that Respondent was overpaid $590,008.15 during the audit period (later reduced to $513,246.91). The FAR also informed Respondent that Petitioner was imposing a fine of $118,001.63 as a sanction for violation of Florida Administrative Code Rule 59G-9.070(7)(e), and was seeking reimbursement of costs in the amount of $2,223.64. The FAR states six grounds on which Petitioner seeks to recoup monies paid to Respondent, and provides as follows: The 2007 and 2011 Dental Services Coverage and Limitations Handbooks, page 2-2, specify that Medicaid reimburses for services that are individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, not in excess of the recipient's needs, and reflect the level of services that can be safely furnished. A review of your records by a peer consultant revealed that the level of service for some claims submitted was not supported by the documentation. The appropriate code was applied and the payment adjusted. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. The 2008 Florida Medicaid Provider General Handbook, pages 5-8 and 2-57, defines incomplete records as records that lack documentation that all requirements or conditions for service provision have been met. A review of your records revealed that documentation for some services for which you billed and received payment was incomplete or not provided. Payments made to you for these services are considered an overpayment. The 2008 Florida Medicaid Provider General Handbook, page 5-4, states that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim for goods and services that are medically necessary. A review of your records revealed that the medical necessity for some claims submitted was not supported by the documentation. Payments made to you for these services are considered an overpayment. The 2008 Florida Medicaid Provider General Handbook, page 5-4, requires that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your records revealed that some services were double billed. Payments made to you for these services are considered an overpayment. The 2008 Florida Medicaid Provider General Handbook, page 5-4, requires that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your records revealed that some services rendered were erroneously coded. The appropriate code was applied and the payment adjusted, if applicable. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. The 2007 and 2011 Dental Services Coverage and Limitations Handbooks, pages 2- 34 and 2-35 respectively, limit reimbursement for restorative services to essential services necessary to restore and maintain dental health; one restoration per tooth surface except for the occlusal surface of permanent maxillary 1st and 2nd molars; one resin restoration for a mesial or distal lesion; and one posterior one-surface resin restoration every three years per tooth number or letter per tooth surface. A review of your dental records revealed that you billed and received payment for a restoration in excess of the maximum. Payment made to you for this service is considered an overpayment. Mark Kuhl, D.M.D., was offered and accepted as Petitioner's expert in the areas of rendering dental care and dental medical necessity with respect to Medicaid overpayment cases. Dr. Kuhl was also offered and accepted as a peer reviewer pursuant to section 409.9131, Florida Statutes. Since 1985, Dr. Kuhl has been continuously licensed to practice dentistry in the State of Florida. Dr. Kuhl is not board-certified in any specialty and operates a general dentistry practice where he treats pediatric patients. W. Michael Ingalls, D.D.S., was offered and accepted as Respondent's “expert in dentistry with a focus on pediatric dentistry.” Dr. Ingalls was not, however, recognized as an expert as to matters pertaining to Medicaid coding for services rendered. Dr. Ingalls has practiced dentistry continuously since graduating from the University of Washington School of Dentistry in 1984. Dr. Ingalls has been board-certified by the American Board of Pediatric Dentistry since 1997. Dr. Ingalls has owned and operated his own pediatric dental practice in Lake Mary, Florida, since 1987. During the audit period, there were two versions of the Florida Medicaid Provider General Handbook in effect. As applied to the instant dispute, there are no material differences between the two General Handbooks so, unless otherwise indicated, they will collectively be referred to as the General Handbook. During the audit period, there were also two versions of The Florida Medicaid Provider Dental Services Coverage and Limitations Handbook in effect. As applied to the instant dispute, there are no material differences between the two Dental Handbooks so, unless otherwise indicated, they will collectively be referred to as the Dental Handbook. Missing or Incomplete Documentation The General Handbook provides, in part, as follows: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to . . . present a claim . . . that is for goods and services that . . . [a]re documented by records made at the time the goods or services were provided demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The General Handbook also provides that “[m]edical records must state the necessity for and the extent of services provided [and] the following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief Complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescription; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The General Handbook does not define what constitutes a medical record. The General Handbook further provides that a Medicaid provider has an affirmative duty to provide services “in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law.” For the applicable audit period, section 466.018(3), Florida Statutes (2011), required, in part, that “[e]very dentist shall maintain written dental records and medical history records which justify the course of treatment of the patient.” Additionally, section 466.028(1)(m) subjects a dentist to disciplinary action for “[f]ailing to keep written dental records and medical history records justifying the course of treatment of the patient.” Section 466.018(3) makes clear that dental records and medical history records must justify, or explain why, a particular course of treatment was undertaken by a dental care provider. Respondent utilizes software to capture the services provided to his patients. The software has a “patient notes master” section, which allows the user to post narrative information about a patient, including information related to patient evaluation and insurance claims status. The software also has a “patient chart” section which reflects information such as dates of service, a description of services provided (with Current Dental Terminology codes, hereinafter CDT code(s)), the tooth and surface involved, and the treatment status of the affected tooth. The patient chart section also has a colorized tooth chart that visually depicts information found in the description, tooth, and surface sections of the patient chart. The “patient notes master” section and all parts of the “patient chart,” collectively and substantively, comprise the patient medical record contemplated by the General and Dental Handbooks, respectively. There is nothing in Petitioner’s rules, regulations, General or Dental Handbooks, or section 466.018(3), that requires patient treatment information to be gleaned only from the patient notes section of a patient’s dental record. Recipient 1 (Not in Patient Notes) On January 14, 2011, patient K.A., who at the time was an existing patient, was treated by Respondent. According to the dental records, Respondent performed a “periodic oral evaluation [CDT code 0120],” took several x-rays, and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” The results of the evaluation revealed that K.A. had “decay” in teeth “S” and “A.” K.A. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied treatment related to CDT codes 1203 and 1330 on the basis that there is no documentation in the “patient notes” to warrant payment for these services. While it is true that the “patient notes” portion of Respondent’s dental record for K.A. offers no justification or otherwise documents the need for CDT codes 1203 and 1330, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided to K.A. Payment for these services should be allowed. On February 15, 2012, K.A. was treated by Respondent. According to the dental record, Respondent performed a “periodic oral evaluation [CDT code 0120],” took several X-rays, and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” The results of the evaluation revealed that K.A. had “decay” in teeth 14, 19 and 30. K.A. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied treatment related to CDT codes 0120, 1203 and 1330 on the basis that there is no documentation in the “patient notes” to warrant payment for these services. While it is true that the “patient notes” portion of Respondent’s dental record for K.A. offers no justification or otherwise documents the need for CDT codes 0120, 1203 and 1330, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided by Respondent to K.A. Payment for these services should be allowed. On March 9, 2012, K.A. was treated by Respondent. According to the patient chart, Respondent applied a resin-based composite to K.A.’s teeth 14, 19 and 30 (CDT codes 2391 and 2392). Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment. While it is true that the “patient notes” portion of Respondent’s dental record for K.A. fails to mention that these services were provided, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided by Respondent to K.A. and payment for these services should be allowed. Recipient 2 (Not in Patient Notes) On April 5, 2011, E.B. was treated by Respondent. According to the dental record, Respondent performed a “comprehensive oral evaluation [CDT code 0145]” and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” E.B. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied payment for the fluoride treatment on the basis that there is no documentation in the “patient notes” for these services. While it is true that the “patient notes” portion of Respondent’s dental record for E.B. fails to mention the fluoride treatment, the “patient chart” portion of E.B.’s dental record clearly documents that these services were provided by Respondent to E.B. and payment for these services should be allowed. Recipient 11 (Not in Patient Notes) On April 26 and May 23, 2012, P.D. was treated by Respondent. According to the dental record, Respondent, during these visits, applied “resin-based composite – two surface, posterior [CDT code 2393],” to the distal and occlusal surfaces of teeth 4 and 5, and the mesial and occlusal surfaces of tooth 3. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment. While it is true that the “patient notes” portion of Respondent’s dental record for P.D. fails to mention that these services were provided, the “patient chart” portion of P.D.’s dental record clearly documents that these services were provided and payment for these services should be allowed. Recipient 20 (Not in Record) On February 7, 2012, M.J. was treated by Respondent. According to the dental record, Respondent performed an “extraction, erupted tooth or exposed root [CDT code 7140]” for teeth D and E. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the patient record to warrant payment. The “patient chart” portion of M.J.’s dental record clearly documents that these services were provided and payment for the same should be allowed. Recipient 23 (Not in Patient Notes) On July 5, 2012, M.M. was treated by Respondent. According to the dental record, Respondent applied a “resin-based composite – three surfaces, anterior [CDT code 2393]” to teeth E and F. The dental record also reflects that behavior management techniques (CDT code 9920) were applied during the procedure. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment. While it is true that the “patient notes” portion of Respondent’s dental record for M.M. fails to mention that these services were provided, the “patient chart” portion of M.M.’s dental record clearly documents that these services were provided and payment for these services should therefore be allowed. Recipient 24 (Not in Patient Notes) On October 19, 2010, A.M. was treated by Respondent. According to the dental record, Respondent applied a “resin-based composite – two surfaces, posterior [CDT code 2392],” to teeth A and J. The dental record also shows that a “pulp cap – indirect [CDT code 3120]” was applied to tooth A. Petitioner denied payment for treatment related to the application of the pulp cap on the basis that there is no documentation of the same in the patient “notes.” While it is true that the “patient notes” portion of Respondent’s dental record for A.M. fails to mention the application of a pulp cap, the “patient chart” portion of A.M.’s dental record clearly documents that this service was provided and payment for should therefore be allowed. Recipient 25 (Not in Patient Notes) On February 16, 2011, I.O. was treated by Respondent. According to the dental record, Respondent applied a “resin-based composite – two surfaces, posterior [CDT code 2392],” to the occlusal/lingual and distal/buccal surfaces of tooth A. Petitioner denied payment for these services on the basis that there is no documentation of the same in the “patient notes.” While it is true that the “patient notes” portion of Respondent’s dental record for I.O. fails to mention that these services were provided, the “patient chart” portion of I.O.’s dental record clearly documents that these services were provided and payment for the same should be allowed. Recipient 26 (Not in Patient Notes) On November 1, 2010, C.R. was treated by Respondent. According to the dental record, Respondent, during these visits, applied “resin-based composite – one surface, posterior [CDT code 2391],” to the occlusal surfaces of teeth L and S, and both the occlusal and buccal surfaces of teeth K and T. Petitioner denied payment for treatment related to the application of the resin- based composite to the occlusal surface for tooth S on the basis that there is no documentation of this service in the “patient notes.” While it is true that the “patient notes” portion of Respondent’s dental record for C.R. fails to mention that this service was provided, the “patient chart” portion of C.R.’s dental record clearly documents that this service was provided and payment for the same should be allowed. Services Billed at Lower Level The Dental Handbook provides in part that “[a] comprehensive oral evaluation is used by a dentist when evaluating a patient comprehensively. This applies to new patients and to established patients who have a significant change in health conditions or who have been absent from treatment for three or more years.” The Dental handbook also states that “[a] provider may only be reimbursed for a comprehensive oral evaluation once every three years for the same recipient.” Respondent contends that Petitioner erroneously adjusted payment for this service because the comprehensive evaluations were conducted more than three years apart. Recipient 20 – J.M. On February 2, 2012, Respondent treated J.M. For this service date, Respondent billed for a comprehensive oral evaluation (CDT code 0150). According to J.M.’s dental record, Respondent previously performed a comprehensive evaluation on January 5, 2009. J.M.’s dental record also indicates that between these dates, Respondent treated her on seven different occasions. While it is true that the time between comprehensive evaluations is more than three years, Petitioner properly adjusted payment for the February 2, 2012, service because J.M. was not absent from treatment during this interval. Recipient 22 – S.M. On July 18, 2011, Respondent treated S.M. For this service date, Respondent billed for a comprehensive oral evaluation (CDT code 0150). According to S.M.’s dental record, Respondent previously performed a comprehensive evaluation on January 14, 2011. Petitioner adjusted the July 18, 2011, service to a “periodic oral evaluation [CDT code 0120],” which reimburses at a lower rate. Respondent does not dispute that Petitioner properly adjusted the reimbursement rate for this service. Not Medically Necessary Applicable Medicaid regulations require that “medical necessity” be documented by specific records made at the time the services were provided, and that the records fully identify the medical basis and the need for the services. In other words, a provider must document the rationale for conducting a particular service at the time of making the decision to perform the same. Petitioner asserts that Respondent failed to submit sufficient documentation to establish that the disputed charges were for "medically necessary" services. FAR Finding No. 3 involves CDT codes 0240, 0250 and 0260. These codes reflect services for radiograph/diagnostic imaging procedures that “[s]hould be taken only for clinical reasons as determined by the patient’s dentist.” According to the Dental Handbook, these radiographs will not, however, be reimbursed for caries (decay) detection. The Dental Handbook also states that “[r]eimbursement for a complete series of intraoral radiographs is limited to once in a three (3) year period, per recipient.” Petitioner asserts that Respondent failed to establish that the use of CDT codes 0240, 0250, and 0260 was medically necessary for certain claims related to patients 1, 5, 8, 9, 10, 14, 20, 22, 26, 31, and 32. Respondent contends that services related to the disputed charges were necessary to monitor growth and development and screen for oral pathology because children’s dentition is rapidly changing during early adolescence. In other words, Respondent suggests that medical necessity exists for the radiographs essentially for no other reason than because the child is of a particular age. According to Dr. Kuhl, the ADA Guidelines, which are authoritative and instructive, provide that for radiographs to be medically necessary there should be sufficient documentation in the dental record to indicate the specific, individualized indication for why Respondent billed for the radiograph procedure and any results that were obtained pursuant to that procedure. Dr. Kuhl testified that Respondent’s dental records for each of the disputed claims provide no indication for or need as to why the X-rays were taken. According to Respondent’s expert, Dr. Ingalls, the standard of care for taking occlusal X-rays is that they are to be taken “when there was decay present or trauma had occurred” and that they are not taken simply as screening X-rays. The following testimony from Dr. Ingalls is instructive: Q: Okay. If you were to take an intraoral occlusal radiograph, would you document why you took it? A: I would have a description of what was found from taking it, which would say why you took it. You’d have a reason to take it to begin with and then you write a comment of what was found. Q: And do you write that in the narrative form? A: I have it in the narrative form. Sometimes, again, if I gave you an example, a child comes who’s fallen and hit their front teeth on the floor at home and displaced or broken a tooth or even the parent was concerned with bleeding from the gumline, I would take an occlusal radiograph to record what was there, partly to assure that there was nothing that required treatment and also to provide a baseline for future comparison where I would take future occlusal radiographs to monitor any changes over time. And I would have a record of that traumatic incident, every part of it; where it occurred, how it occurred, all of the examination findings around it on a trauma evaluation and the outcome of the findings in the x-ray and any treatment plan and instructions given to the parent. Q: Would you say that approach to medical records is standard? A: Within my specialty, that is the guideline that is taught to us that we follow so that we do not miss anything. Hearing Transcript pp. 411-413. The opinions of Dr. Kuhl and Dr. Inglass are consistent and provide that a medical basis and need for the X-rays at issue must be established and documented, and that the X-rays in question are not to be used as a screening device as suggested by Respondent. Recipient 1 Recipient 1, K.A., had four claims that were denied as to CDT codes 0240, 0250, and 0260. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 5 Recipient 5, S.C., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 8 Recipient 8, D.C., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 9 Recipient 9, D.D., had two claims that were denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 10 Recipient 10, G.D., had two claims that were denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 14 Recipient 14, E.E., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 20 Recipient 20, M.J., had six claims that were denied as to CDT codes 0240, 0250, and 0260. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 22 Recipient 22, K.A., had two claims that were denied. Each claim was billed using CDT code 0250. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 26 Recipient 26, C.R., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Recipient 31 Recipient 31, J.R., had two claims that were denied. Each claim was billed using CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims. Recipient 32 Recipient 32, J.R., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim. Erroneous Coding According to the Dental Handbook, “[s]ealants are applied to pits and fissures of permanent teeth to prevent caries [and] [t]he enamel surface of the tooth may be mechanically or chemically[,] or mechanically and chemically prepared.” The Dental Handbook also states that “[s]ealants applied to deciduous (primary) teeth will not be reimbursed by Medicaid.” CDT code D1351 (sealant – per tooth) describes this service as “[mechanically and/or chemically prepared enamel surface sealed to prevent decay.” As for resin restorations, the Dental Handbook provides that “Medicaid may reimburse for . . . [r]esin restorations . . . [and that] [t]he fee for resin restorations includes local anesthesia, tooth preparation, routine lining and base, polishing, and the use of any adhesive, such as amalgam bonding agents.” As a restriction on the use of resin restorations, the Handbook provides that “[r]esin restorations may be used to restore carious lesions that extend into the dentin or areas that are deeply eroded into dentin.” CDT codes 2391/2392 provide that the resin composite is “[u]sed to restore a carious lesion into the dentin or a deeply eroded area into the dentin.” In comparing sealant and resin restoration services, it is evident that sealants are for the enamel surface of the tooth whereas restorations, when undertaken to eliminate carious lesions, are appropriate only when the lesions extend into the dentin. In understanding the sealant and restoration provisions of the Dental Handbook, it is also evident that in order to be reimbursed for either CDT code 2391 or 2392 there must be sufficient justification of carious intrusion into the dentin and in the absence of such justification it may be appropriate to adjust the service to CDT code 1351, unless, of course, the service relates to a deciduous tooth. FAR finding No. 5 involves CDT codes 2391, 2392 and 1351 and applies to recipients 8, 13, 19, 22, 23, 24, 26, 28, 29, and 32. Petitioner, based on Dr. Kuhl’s analysis, adjusted reimbursement for CDT codes D2391 and D2392 downward to CDT code D1351 when the following criteria were present: X-rays did not show any decay, Respondent’s dental record for the recipient did not specifically indicate that any decay was removed, Respondent’s dental record for the recipient stated that only a “flowable” resin was used, and Respondent’s dental record for the recipient did not indicate that anesthesia was used. Dr. Kuhl evaluated the criteria and, when all four were met, he concluded that it was very likely that any decay present did not extend into the dentin as required for CDT code descriptions and applicable Florida Medicaid Handbooks. Dr. Kuhl’s protocol for identifying claims that do not meet the requirements for codes 2391 and 2392 is consistent with the requirements of Florida Medicaid Handbooks and is credited. There are, however, instances where Dr. Kuhl made downward adjustments for claims when, according to the requirements of the Dental Handbook, the claims should not have been paid. Recipient 8 For recipient 8, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 6 through 11. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (A, J, K, L, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 13 For recipient 13, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 8 through 13, 18, 20, 21, and 24 through 26. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 8, 9, 12, 13, and 24 through 26 to CDT code 1351 because the teeth involved in these claims (A, I, J, K, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 10, 11, 18, 20, and 21, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims are eligible for reimbursement when sealants are applied under appropriate circumstances. Recipient 19 For recipient 19, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 1 through 5. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (A, B, J, K, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 22 For recipient 22, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code D2391 or D2392 for claims 10, 11, 13, 15, and 16. This opinion is credited. As for claims 10, 11, 13, and 16, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims are eligible for reimbursement when sealants are applied under appropriate circumstances. Claim 15 involved tooth 20, which is not identified in the Dental Handbook as a tooth that is eligible for reimbursement when a sealant is applied. Accordingly, claim 15 should be denied. Recipient 23 For recipient 23, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code D2391 or D2392 for claims 13 through 15, and 17. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (K, L, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 24 For recipient 24, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 13, 17, and 21. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 13 and 17 to CDT code 1351 because the teeth involved in these claims (A and J) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claim 21, Dr. Kuhl correctly adjusted this claim downward from CDT code 2392 to CDT code D2940 because the patient record reflects that a sedative filling was applied and not a resin-based composite restoration as billed. Recipient 26 For recipient 26, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 9 through 11. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved (K, L, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. Recipient 28 For recipient 28, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 8, 9, and 11. This opinion is credited. Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved (3, 14, and 30) are eligible for reimbursement when sealants are applied under appropriate circumstances. Recipient 29 For recipient 29, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 4, 5, 8, and 10. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 8 and 10 to CDT code 1351 because the teeth involved in these claims (K and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 4 and 5, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims (3 and 19) are eligible for reimbursement when sealants are applied under appropriate circumstances. Recipient 32 For recipient 32, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 9 through 12, 28, 30, and 32. This opinion is credited. Dr. Kuhl erred however in adjusting claims 11 and 32 to CDT code 1351 because the teeth involved in these claims (J and S) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 12 and 28, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims (14 and 30) are eligible for reimbursement when sealants are applied under appropriate circumstances. As for claim 30, Dr. Kuhl erred in adjusting this claim downward to CDT code 1351 because it involves tooth 30 which was addressed in claim 12. The Handbook provides that “[s]ealants may be reimbursed once per three years, per tooth.” The date of service for claim 12 is October 19, 2010, and the date of service for claim 30 is March 28, 2012. Claim 30 was not submitted more than three years after claim 12, and it should therefore be denied. Duplicate Claims Certain claims were denied by Petitioner as being duplicates of other claims. These claims relate to FAR finding No. 4, which involves CDT Codes 2391, 2392, and 1351. Recipient 8 For recipient 8, claims 12 and 13 were billed and reimbursed under CDT code 2391 for teeth K and T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 8 (as previously discussed) and tooth T was addressed in claim 11 (as previously discussed), Dr. Kuhl correctly opined that claims 12 and 13 are duplicate claims that should be denied. Recipient 13 For recipient 13, claims 14 through 17, and 19, were billed and reimbursed under CDT code 2391 for teeth K, T, 3 and 30. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 12 (as previously discussed), tooth T was addressed in claim 13 (as previously discussed), tooth 3 was addressed in claim 18 (as previously discussed), and tooth 30 was addressed in claim 11 (as previously discussed), Dr. Kuhl correctly opined that claims 14 through 17, and 19 are duplicate claims that should be denied. Recipient 19 For recipient 19, claim 6 was billed and reimbursed under CDT code 2391 for tooth K. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth K was addressed in claim 8 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate claim that should be denied. Recipient 22 For recipient 22, claims 12 and 14 were billed and reimbursed under CDT code 2392 for teeth 14 and 15. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because the patient record does not support the use of code 2391, it also does not support the use of code 2392. Because tooth 14 was addressed in claim 11 (as previously discussed) and tooth 15 was addressed in claim 13 (as previously discussed), Dr. Kuhl correctly opined that claims 12 and 14 are duplicates that should be denied. Recipient 23 For recipient 23, claim 16 was billed and reimbursed under CDT code 2391 for tooth T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth T was addressed in claim 15 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate that should be denied. Recipient 26 For recipient 26, claims 13 and 14 were billed and reimbursed under CDT code 2391 for teeth K and T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 9 (as previously discussed) and tooth T was addressed in claim 10 (as previously discussed), Dr. Kuhl correctly opined that claims 13 and 14 are duplicates that should be denied. Recipient 28 For recipient 28, claim 10 was billed and reimbursed under CDT code 2391 for tooth 3. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth 3 was addressed in claim 8 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate that should be denied. Recipient 29 For recipient 29, claims 6 and 7 were billed and reimbursed under CDT code 2392 for teeth 3 and 14. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because the patient record does not support the use of CDT code 2391, it also does not support the use of CDT code 2392. Because tooth 3 was addressed in claim 4 (as previously discussed) and tooth 14 was addressed in claim 15 (as previously discussed), Dr. Kuhl correctly opined that claims 6 and 7 are duplicates that should be denied. Recipient 32 For recipient 32, claims 13 and 31 were billed and reimbursed under CDT code 2391 for teeth 19 and 30, and claim 29 was billed and reimbursed under CDT code 2392 for tooth 14. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 and 2392 for services related to these teeth. Because tooth 14 was addressed in claim 28 (as previously discussed) tooth 19 was addressed in claim 10 (as previously discussed), and tooth 30 was addressed in claims 12 and 30 (as previously discussed), Dr. Kuhl correctly opined that claims 13, 29, and 31 are duplicates that should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order that: Revises the Final Audit Report consistent with the Findings of Fact and Conclusions of Law set forth herein; Recalculates the total overpayment consistent with the Findings of Fact and Conclusions of Law set forth herein; Requires Respondent to pay interest at the statutorily mandated rate on the recalculated overpayment; and Requires Respondent to pay a fine in the amount of 20 percent of the recalculated overpayment. Pursuant to section 409.913(23)(a), Petitioner is entitled to recover all investigative, legal and expert witness costs. Petitioner has documented costs of $2,223.64, but advises that “[a]dditional costs have been incurred in preparing for and attending the final hearing.” Jurisdiction is retained to determine the amount of appropriate costs, if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount. Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved. DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2017.
