The Issue The issue is whether the score that Respondent assigned to the Patient Amalgam Preparation section of the clinical part of Petitioner's June 2003 Florida Dental License Examination was arbitrary or capricious.
Findings Of Fact Petitioner took the June 2003 Florida Dental License Examination. A passing score for the clinical part of the examination is 3.0. Petitioner received a score of 2.9, so he failed the clinical part of the examination. Petitioner has challenged the grade of 2.0 that he received on the Patient Amalgam Preparation of the clinical part of the examination. The score of 2.0 is derived from averaging the 3s that Petitioner received from two evaluators and the 0 that he received from one evaluator. Petitioner challenges only the score of 0, and he needs two additional points to pass the clinical part of the examination. The administration of the clinical part of the dental examination requires Respondent to recruit and train numerous examiners and monitors, all of whom are experienced, licensed dentists. The training process includes standardization exercises designed to ensure that all examiners are applying the same scoring criteria. The evaluation of specific procedures are double-blind, with scoring sheets that identify candidates by test numbers, so examiners do not know the identity of the candidate whose procedures they are scoring. The section that is the subject of this case requires the candidate to demonstrate certain skills on a live patient. While working with the patient, the candidate is supervised by a monitor. When the candidate has completed the required dental work to his satisfaction, he so advises the monitor, who sends the patient to the dental examiners. For the section that is the subject of this case, three dental examiners examine the patient and score the procedure. These examiners do not communicate with each other, and each performs his or her examinations and scores the procedure in isolation from the other examiners. Communications between examiners and candidates are exclusively through monitor notes. For the section that is the subject of this case, the maximum possible score that a candidate may receive is a 5. Passing grades are 3, 4, or 5. Nonpassing grades are 0, 1, or A score of 3 indicates minimal competence. The Patient Amalgam Preparation section of the clinical part of the examination required Petitioner to remove caries from one tooth and prepare the tooth for restoration. These procedures are of obvious importance to dental health. Poor preparation of the tooth surface will probably result in the premature failure of the restoration. A restoration following incomplete removal of caries will probably result in ongoing disease, possibly resulting in the loss of the tooth. Written materials, as well as Respondent's rules, which are discussed below, require a 0 if caries remain, after the candidate has presented the patient as ready for restoration. Other criteria apply to the Patient Amalgam Preparation procedure, but this criterion is the only one of importance in this case. Examiners 207 and 394 each assigned Petitioner a 3 for this procedure, but Examiner 417 assigned him a 0. Examiners 207 and 394 noted some problems with the preparation of the tooth, but neither detected any caries. Examiner 417 detected caries and documented her finding, as required to do when scoring a 0. Examiner 207 has served as an examiner for 10 years and has conducted 15-20 evaluation examinations during this time. Examiner 417 graduated from dental school in 1979. Examiner 394 has been licensed in Florida since 1995 and has served as an examiner only three years. The instructions to examiners emphasize that they are to detect caries "exclusively" tactilely, not visually. Tactile detection of the stickiness characteristic of caries is more reliable than visual detection. For example, caries assumes the color of dentin as the decay approaches the dentin. Despite the requirement to detect caries by touch, not sight, Examiner 417 initially testified that she detected the caries by sight. Later in her testimony, she backtracked and stated that she was not sure if she felt it or saw it. Her earlier, more definitive testimony is credited; Examiner 417 never found caries by touch, only by sight. In DOAH Case No. 03-3998, Examiner 417 readily conceded that she must have missed the caries that another examiner had detected, inspiring little confidence in her caries-detection ability. In that case, her value as one of two dentists in the majority was insignificant, even though the majority finding prevailed. In this case, Examiner 417's role as the lone dentist who found caries is too great an evidentiary burden for her to bear. The vagueness of her testimony and her reliance upon visual caries-detection preclude a finding of caries in this patient. Three other additional factors undermine Examiner 417's finding of caries. First, Examiners 207 and 394 found no caries. Examiner 207 has considerable experience. Examiner 394 has less experience, but he was the lone evaluator in DOAH Case No. 03-3998 to detect calculus deep below the gums, proving that he is both meticulous and a demanding grader. Together, then, the findings of Examiners 207 and 394 of no caries carry much greater weight than the contrary finding of Examiner 417. Nor was it likely that Examiner 417 accidentally dislodged the caries. No evidence suggest that she was the first examiner to examine the patient, and her means of detecting caries was visual, not tactile. Second, the location of the caries in this case was directly in the center of the tooth. So located, it was difficult for Petitioner and Examiners 207 and 394 to miss. Third, by two monitors' notes, Petitioner twice obtained the evaluators' permission to expand the drilled area, due to the extensiveness of the caries, suggesting that Petitioner was devoting careful attention to the removal of all caries, even if it meant an atypical site preparation.
Recommendation It is RECOMMENDED that the Department of Health enter a final order granting Petitioner an additional two points on the clinical part of the June 2003 Florida Dental License Examination and determining that he has passed this part of the dental examination. DONE AND ENTERED this 27th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2004. COPIES FURNISHED: R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 James Randolph Quick Driftwood Plaza 2151 South U.S. Highway One Jupiter, Florida 33477 Cassandra Pasley Senior Attorney Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether the Agency for Health Care Administration is authorized to terminate the participation of Respondent, Ronald M. Marini, D.M.D., P.A., in the Medicaid program.
Findings Of Fact AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, otherwise known as the Medicaid program. See §§ 409.902(1) and 409.901(2) and (14), Fla. Stat. AHCA is responsible for administering and overseeing the Medicaid program in the State of Florida. See § 409.913, Fla. Stat. AHCA’s Bureau of Medicaid Program Integrity (“MPI”) is the unit within AHCA that oversees the activities of Florida Medicaid providers and recipients. MPI ensures that providers abide by Medicaid laws, policies, and rules. MPI is responsible for conducting audits, investigations, and reviews to determine possible fraud, abuse, overpayment, or neglect in the Medicaid program. See §409.913, Fla. Stat. Dr. Ronald M. Marini established his dental practice, Ronald M. Marini, DMD, PA (Respondent), in 2002. Dr. Marini’s practice focuses primarily on the treatment of children who have dental coverage through Medicaid. Respondent holds an active Medicaid provider agreement with AHCA, and is assigned Medicaid Provider No. 076031500. At all times relevant to this proceeding, Respondent was an enrolled Florida Medicaid provider authorized to provide dental care to Medicaid beneficiaries and receive reimbursement for covered services rendered to Medicaid recipients. A Medicaid provider agreement is a voluntary contract between AHCA and the provider. As an enrolled Medicaid provider, Respondent is subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule. See § 409.907, Fla. Stat. For services rendered to Medicaid recipients, AHCA pays Medicaid providers under an honor system. AHCA is authorized to monitor the activities of Medicaid providers and to recover “overpayments.” See §§ 409.913 and 409.9131(5), Fla. Stat. An “overpayment” includes “any amount that is not authorized to be paid by the Medicaid program, whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” § 409.913(1)(e), Fla. Stat. AHCA is also empowered to impose sanctions against offending Medicaid providers. § 409.9131, Fla. Stat. The dispute between AHCA and Respondent originated in 2014 when AHCA’s MPI unit initiated a review of Respondent’s claims for Medicaid reimbursement for the period of March 1, 2010, through August 31, 2012. Following the MPI unit review, AHCA issued a Final Audit Report on September 19, 2014, informing Dr. Marini that Respondent was overpaid for claims not covered by Medicaid in the amount of $590,008.15. In accordance with section 409.913 and rule 59G-9.070, AHCA notified Respondent that it intended to collect the full amount of the overpayment, plus an administrative fine. Respondent responded by requesting a formal administrative hearing to contest AHCA’s action. Respondent’s overpayment proceeding was eventually heard in DOAH as Agency for Health Care Administration v. Ronald M. Marini, D.M.D., P.A., Case No. 16-5641MPI (the “MPI Hearing”). The matter was assigned to Administrative Law Judge Linzie F. Bogan who conducted a formal administrative hearing on June 28 and 29, 2017. During the MPI Hearing, AHCA presented the testimony (via deposition) of Mark Kuhl, D.M.D. AHCA requested Judge Bogan accept Dr. Kuhl as an expert in the area of rendering dental care and dental medical necessity with respect to Medicaid overpayment. AHCA also offered Dr. Kuhl as a “peer reviewer” pursuant to section 409.9131. On August 29, 2017, Judge Bogan issued a Recommended Order in the MPI Hearing siding with AHCA. Judge Bogan specifically concluded: As determined in the Findings of Facts, [AHCA] met its burden of proof and established for those claims identified herein that Respondent was paid for claims that failed to comply with the laws, rules, and regulations governing Medicaid providers. Marini, Case No. 16-5641MPI, RO at 38. Thereafter, Judge Bogan recommended that AHCA 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. Marini, Case No. 16-5641MPI, RO at 39. In reaching his decision, Judge Bogan specifically noted that he accepted Dr. Kuhl as an expert “in the areas of rendering dental care and dental medical necessity with respect to Medicaid overpayment cases.” Judge Bogan further accepted Dr. Kuhl “as a peer reviewer pursuant to section 409.9131, Florida Statutes.” Judge Bogan also noted that Dr. Kuhl operates a general dentistry practice where he treats pediatric patients. However, he is not board-certified in any specialty. Marini, Case No. 16-5641MPI, RO at 8. AHCA issued its Final Order on October 27, 2017. In its Final Order, AHCA adopted Judge Bogan’s findings of fact as set forth in his Recommended Order without modification. AHCA also adopted Judge Bogan’s conclusions of law without modification. Marini, Case No. 16-5641MPI, FO at 16. Per Judge Bogan’s recommendations, AHCA calculated that Respondent must repay an overpayment of $424,031.64. AHCA further imposed a fine on Respondent of $84,806.33. Marini, Case No. 16-5641MPI, FO at 16.2 Dr. Marini appealed AHCA’s Final Order to the Fifth District Court of Appeal on November 27, 2017. On April 16, 2019, the Fifth District affirmed the Final Order in a per curiam affirmed decision.3 On May 15, 2019, Dr. Marini appealed the Fifth District’s decision to the Florida Supreme Court. On May 23, 2019, the Supreme Court dismissed Dr. Marini’s appeal stating that the Court: lacks jurisdiction to review an unelaborated decision from a district court of appeal that is issued without opinion or explanation or that merely cites to an authority that is not a case pending review in, or reversed or quashed by, this Court.[4] As of the date of the final hearing, Respondent has not paid to AHCA the full amount of either the overpayment or the fine ordered by the Final 2 Pursuant to section 409.913(25)(c), Respondent was also responsible to pay interest on the overpayment amount of ten percent per year from the date of the Final Order. Marini, Case No. 16-5641MPI, FO at 16. 3 Ronald M. Marini, D.M.D., P.A. v. Ag. for Health Care Admin., 269 So. 3d 558 (5th DCA 2019), review dismissed sub nom. Ronald M. Marini, D.M.D., P.A. v. Ag. for Health Care Admin., No. SC19-843, 2019 WL 2238725 (Fla. May 23, 2019). 4 Ronald M. Marini, D.M.D., P.A. v. Ag. for Health Care Admin., No. SC19-843, 2019 WL 2238725 (Fla. May 23, 2019). Order (a total of $508,837.97). Neither has Respondent entered into an agreement with AHCA to repay the overpayment. Based on Respondent’s failure to reimburse the overpayment or enter into a repayment agreement, on or about January 29, 2020, AHCA initiated this action to terminate Respondent’s participation as a provider in the Medicaid program. AHCA pursues this action based on section 409.913(30), which directs that AHCA: [S]hall terminate a provider’s participation in the Medicaid program if the provider fails to reimburse an overpayment or pay an agency-imposed fine that has been determined by final order, not subject to further appeal, within 30 days after the date of the final order, unless the provider and the agency have entered into a repayment agreement. See also Fla. Admin. Code R. 59G-9.070(7)(s). In support of its case, AHCA called Shelby Sauls, a Management Review Specialist for AHCA’s MPI unit. As part of her responsibilities, Ms. Sauls supervises AHCA’s issuance of suspension and termination notices for Medicaid provider agreements. During the hearing, Ms. Sauls reviewed AHCA’s case financial history notes recording all Respondent’s Medicaid payment activity following the MPI Hearing in 2017. Ms. Sauls testified that Respondent still owes over $500,000 of the overpayment and fine ordered in AHCA’s Final Order. Ms. Sauls further relayed that AHCA and Dr. Marini have not entered into a repayment agreement to address the amount Respondent owes to AHCA per the 2017 Final Order. Katrina Derico-Harris also testified for AHCA. Ms. Derico-Harris is an Accounting Services Supervisor II and supervises the Medicaid Accounts Receivable Unit section of AHCA’s Bureau of Financial Services, which handles the majority of Medicaid overpayment collections. Ms. Derico-Harris stated that, as of the date of the final hearing, AHCA has received only one payment from Respondent in the amount of $24.49 on March 5, 2020. Ms. Derico-Harris declared that Respondent owes a current balance of $468,512.54 to AHCA to satisfy the full amount of the overpayment.5 Ms. Derico-Harris also confirmed that Respondent and AHCA have not entered into an agreement to repay the overpayment. Dr. Marini, in challenging AHCA’s decision to terminate Respondent from the Medicaid program, vigorously asserts that the calculation of an overpayment of $424.031.64 in AHCA’s 2017 Final Order was “spoiled fruit” from the beginning. Dr. Marini’s predominant argument is his strenuous objection to AHCA’s presentation of, and the presiding ALJ’s reliance upon, Dr. Kuhl’s testimony at the MPI Hearing. Dr. Marini asserts that the $424,031.64 overpayment amount was based on the testimony of an unqualified dental expert who used “an outrageous formula that turned a supposed overpayment of $3,500 into $590,000.” To support his position, Dr. Marini points to the fact that when Dr. Kuhl rendered his opinion, he was not a Medicaid Dental Provider, he never worked with a Medicaid Dental Provider, and he was not well versed in the use of the Florida Medicaid Dental Services Coverage and Limitations Handbook. Further, Dr. Marini contends that Dr. Kuhl should never have been considered an expert in Medicaid dentistry or children’s dentistry due to the fact that his exposure to children’s dentistry was limited to one to two children per week as compared to the 60-80 children seen per day in Dr. Marini’s practice. Finally, Dr. Marini proclaims that Dr. Kuhl’s “knowledge and use of dental materials was opinion bias and against the acceptable standards presented by the American Dental Association and the manufacturers of dental materials.” 5 Ms. Derico-Harris added that this amount does not include interest from February 10, 2020, to present, for which Dr. Marini is also obligated to pay. Consequently, Dr. Marini argues that Dr. Kuhl’s testimony could not support the finding that Respondent was overpaid by Medicaid, and the ALJ should not have accepted Dr. Kuhl as an expert to testify regarding the validity of Medicaid claims for dental services. Therefore, Dr. Marini emphatically declares that the Final Order issued in 2017 was improperly decided and invalid. In requesting an administrative hearing in the present matter, Dr. Marini hopes to have a “properly vetted and qualified dental expert” review his Medicaid claims. Dr. Marini maintains that Respondent owes nothing more to AHCA than $24.49, which is based on two errors he found in Respondent’s Medicaid claims during the audit period. Dr. Marini voluntarily paid the $24.49 to AHCA on March 5, 2020, which he considers the full amount of the overpayment. Dr. Marini admits that Respondent has not reimbursed AHCA for any amount over the $24.49. Neither has Respondent entered into a repayment agreement with AHCA. At the final hearing, Dr. Marini testified that Dr. Kuhl has never been challenged or properly vetted as an expert. However, contrary to Dr. Marini’s assertions, the record in the MPI Hearing reveals that Respondent had a full and fair opportunity to attack Dr. Kuhl’s competency to testify with respect to Medicaid overpayment claims. Indeed, Dr. Marini (through his legal counsel) frequently and purposefully questioned Dr. Kuhl’s expertise, knowledge, and training.6 More to the point, as further discussed below, Respondent cannot 6 For example, before the final hearing, Respondent and AHCA participated in two depositions of Dr. Kuhl. Prior to Dr. Kuhl’s last deposition, Respondent filed an Objection to Notice of Taking Deposition in Lieu of Live Testimony and Motion in Limine to Exclude Testimony of Mark Kuhl, D.M.D. Following the deposition, Respondent filed another Motion in Limine to Strike Testimony of [AHCA’s] Expert Witness, Mark Kuhl, D.M.D., and Supporting Memorandum of Law. Finally, nine days after the final hearing, Respondent filed a Motion in Opposition to [AHCA’s] Tendering of Mark A. Kuhl, D.M.D., as an Expert in Rendering Dental Care and Dental Medical Necessity With Respect to Medicaid Overpayment Cases. In its motions, Respondent repeatedly urged the ALJ to exclude Dr. Kuhl’s testimony. Respondent argued that Dr. Kuhl did not specialize in pediatric dentistry, therefore Dr. Kuhl did not possess the knowledge, training, or expertise to testify relitigate these issues. AHCA’s Final Order is final and is now beyond appeal. Respondent’s recourse to raise issues regarding AHCA’s overpayment determination was by appeal, which he pursued and ultimately lost. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record establishes that Respondent failed to reimburse AHCA for a Medicaid overpayment or pay a fine AHCA imposed by final order. The evidence further establishes that Respondent has not entered into an agreement with AHCA to repay the overpayment or the fine. Accordingly, AHCA met its burden of proving that section 409.913(30) authorizes the termination of Respondent’s participation in the Medicaid program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order terminating Respondent’s participation in the Medicaid program. In its Proposed Recommended Order, AHCA requests that, as the prevailing party, it is entitled to recover all costs incurred in this matter pursuant to section 409.913(23)(a). To the extent that section 409.913(23)(a) applies, jurisdiction is retained to determine the amount of an award of costs, if any. Within 30 days after entry of a final order, either party may file a request for a hearing to determine the amount of appropriate costs. 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 16th day of July, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of July, 2020. COPIES FURNISHED: Ronald Marini, D.M.D, P.A. 2921 South Orlando Drive, Suite 146 Sanford, Florida 32773 Kimberly Murray, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue Whether Respondent, a licensed dentist, committed the offenses alleged in the First Amended Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant to the authority of Section 20.43 (3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to prosecute administrative complaints as required by the Board of Dentistry. Respondent is, and has been since 1966, a licensed dentist in the State of Florida, having been issued license number DN 0004148. At the time of the final hearing, Respondent’s office address was 4512 Flagler Drive, #301, West Palm Beach, Florida 33407-3802. One prior disciplinary proceeding has been filed against Respondent's license. The record is silent as to the details of that prior disciplinary action. In addition to a traditional general dental practice, Respondent practices alternative dentistry (also referred to by Respondent as biological dentistry) on chronically ill patients. In his alternative dental practice, Respondent utilizes unconventional diagnostic methodologies and homeopathic remedies. In December 1995 and January 1996, Respondent treated C. C., a female born May 10, 1950. At the times pertinent to this proceeding, C. C. considered herself to be pre-cancerous and chronically ill. C. C. believed that she had suffered radiation poisoning in 1986 when a cloud from the nuclear disaster at Chernobyl 2/ passed over her home in Italy while she was outside in the garden. C. C., a chiropractor, became interested in alternative dentistry and attended various seminars presented by proponents of alternative medicine and dentistry. C. C. consulted with different health care professionals, including dentists, medical doctors, and nutritionists, and became familiar with alternative dentistry and homeopathic remedies. C. C. believed that the amalgams in her teeth had become toxic and were inhibiting her recovery to full health. At one of these seminars in 1995, C. C. submitted to a test that purportedly revealed she suffered from heavy metal poisoning. She also examined her blood through a powerful microscope and found her blood to be unusual, which reinforced her belief that she was pre-cancerous. C. C. met Dr. Dietrich Klinghardt at a seminar in 1995 on the topic of alternative dentistry. The seminar attended by Dr. Klinghardt and C. C. included a discussion on toxicity from the oral cavity causing systemic health problems. The seminar also included a discussion on the treatment of dental conditions using homeopathic remedies. C. C. asked Dr. Klinghardt whether he thought she should have her amalgams replaced with non-toxic materials. He recommended that she do so and he also recommended that she have extracted any tooth that had a root canal. C. C. asked Dr. Klinghardt to recommend a dentist to remove her amalgams. Dr. Klinghardt recommended Respondent for the amalgam replacement. Notakehl, Pefrakehl, and Arthrokehlan, the three homeopathic remedies Respondent used in his subsequent treatment of C. C., were discussed at the seminar. These homeopathic remedies are referred to as Sanum remedies, which is a reference to the German manufacturer. In March of 1995, C. C. visited a dentist named Ira Windroff in South Florida. Dr. Windroff took a panoramic X-ray and X-rays of C. C.'s individual teeth. After the X-rays, Dr. Windroff referred C. C. to another dentist, who performed a root canal on C. C.'s tooth #19, which is in the lower left quadrant. On December 12, 1995, C. C. presented to Respondent's office to discuss having her amalgams replaced. C. C. was experiencing pain in tooth #19 on December 12, 1995. C. C. filled out a standard medical history form that Respondent had used in his practice for several years. C. C. discussed her medical and dental history with Respondent. C. C. told Respondent that she had a root canal on tooth #3 when she was a teenager and that she recently had a root canal on tooth #19. C. C. informed Respondent that she considered herself to be chronically ill and pre-cancerous. She told him she had suffered radiation poisoning in 1986 and preferred to have no unnecessary X-rays. She also told him that she was very weak from a recent bout of the flu. Respondent's office notes reflect that C. C. presented with lower left tooth pain (without identifying a specific tooth) and that he "muscle tested for origin." Respondent purported to evaluate C. C.'s medical and dental status by evaluating whether her autonomic nervous system responded to various stimuli. This form of testing will be referred to as ART, which is an acronym for "Autonomic Response Testing". The autonomic nervous system and ART were explained by several of the experts who testified in this proceeding. The human body has an autonomic nervous system consisting of a sympathetic part and a parasympathetic part. Both parts are regulated by the hypothalamus, which is located deep inside the brain. The nerves constituting the autonomic nervous system pass thorough ganglions, which are groups of nerve cells located outside the brain at different locations of the body that act as relay stations. The sympathetic part of the autonomic nervous system is generally believed to deal with the mechanisms that prepare the body to counteract stresses that come from outside the body. For example, if someone cuts his or her finger, the sympathetic part of the autonomic nervous system will cause blood vessels to contract so the body does not lose all of its blood. It also will prepare the body to fight or flee in response to an outside threat. The parasympathetic part of the autonomic nervous system deals with the body's inner secretions, such as insulin and digestive acids. The reactions of the parasympathetic part of the autonomic nervous system calm the body down after a stress and usually promote healing. Respondent's examination of C. C. on December 12, 1995, lasted between one hour (Respondent's estimate) and three hours (C. C.'s estimate). During part of the ART examination, C. C. reclined in a dental chair. When she was not in the dental chair, she reclined on a massage table. During the ART examination, Respondent used his dental assistant to serve as an indirect tester, which required her to be positioned between the patient and the examiner. The dental assistant held one of C. C.'s hands with one hand while extending her (the dental assistant's) free arm. According to those subscribing to this methodology, the physical contact between the dental assistant and C. C. established an electrical current between them, which caused the responses from C. C.'s autonomic nervous system to be transferred to the dental assistant. Respondent used the dental assistant's deltoid muscle to determine whether a particular stimulus had caused a response from C. C.'s autonomic nervous system. Respondent pushed down on the dental assistant's extended arm after exposing C. C. to a stimulus and evaluated the resistance he encountered. He believed he could determine by that resistance whether the dental assistance's deltoid muscle became weak or remained strong. If the dental assistant's deltoid muscle became weak following C. C.'s exposure to a stimulus, Respondent concluded that the autonomic nervous system had responded and that the area of the body being tested was not healthy. If the dental assistant's deltoid muscle remained strong, Respondent concluded that the autonomic nervous system had not responded and that the area of the body being tested was healthy. Respondent used his dental assistant as an indirect tester because he considered C. C. to be too weak to be directly tested, which would have required her to extend her arm throughout the examination. 3/ After he had C. C. place her hand over her belly button while she was in a reclined position and holding the dental assistant's hand, Respondent pushed down on the dental assistant's extended arm. Based on his evaluation of the resistance in the dental assistant's arm, Respondent believed that C. C.'s autonomic nervous system was in a protective mode. Respondent then attempted to determine the reasons for that finding. Respondent placed vials of various substances, including heavy metals, bacteria from root canal teeth, and homeopathic remedies, on C. C.'s lap to determine whether the substances triggered a response from C. C.'s autonomic nervous system. He placed his fingers on her individual teeth to determine whether that prompted a response from C. C.'s autonomic nervous system. Respondent believed that by ART he could determine the condition of C. C.'s internal organs, evaluate her dental problems, and identify the homeopathic remedies that would best promote healing. In addition to using ART, Respondent visually inspected C. C.'s teeth with a dental mirror, used a dental explorer to examine the edge of fillings and cracks in the teeth, probed her gums, percussed tooth #19, and palpitated all of her teeth. Although his dental records for this patient do not reflect that he did so and he could not remember having done so prior to C. C.'s deposition, the evidence established that Respondent reviewed the X-rays taken by Dr. Windroff. Respondent did not take any X-ray of tooth #19 before he extracted that tooth. The only X-rays available to Respondent were taken before the root canal was performed on that tooth in March 1995. Respondent also did not order any laboratory tests. Based on his use of ART, Respondent concluded that the following areas of C. C.'s body were compromised: tonsils, heart, spleen, pancreas, liver, gall bladder, large intestines, and pubic. Using ART, Respondent concluded that C. C.'s tooth #3 and tooth #19 had become toxic. Respondent also concluded that the following homeopathic remedies should be used to treat C. C.: Notakehl, Pefrakehl, and Arthrokehlan. Notakehl is a fungal remedy derived from Penicillum chrysogenum. Arthrokehlan is a bacterial remedy derived from Propionibacterium acnes. Prefakehl is a fungal remedy derived from Candida parapsilosis. 4/ Respondent told C. C. that the root canals that had been performed on tooth #3 and tooth #19 contained toxins and were blocking her recovery. He also told her that the removal of her root canal teeth and any toxic area around the root canal teeth should be given higher priority than the replacement of her amalgams. Respondent told C. C. that he could not help her if she did not have her two root canal teeth extracted. Respondent did not offer C. C. any other options because he did not think any other option existed. There was a conflict in the evidence as to whether C. C. consented to the extraction and treatment with the Sanum remedies. That conflict is resolved by finding that Respondent adequately explained to C. C. how he intended to extract the two teeth and what she could expect following the extractions. Although C. C. did not ask to have those two teeth extracted, she clearly agreed to have the extractions. It is further found that C. C. knowingly agreed to Respondent's proposed treatment with the Sanum remedies. C. C. knew about the Sanum remedies and how Respondent was going to use them to treat her. Much of the evidence presented by Respondent related to ART and the manner it was being used by practitioners in December 1995. The undersigned has carefully reviewed and considered that evidence. The undersigned has also reviewed and considered the evidence presented by Petitioner. The following findings are made as to the use of ART in 1995. The Florida Dental Association, the American Medical Association, and the American Dental Association did not recognize ART as a reliable methodology for testing toxic conditions of the teeth. ART was not being taught in any dental school in Florida. ART was not being used by a respected minority of dentists in the United States to the extent it was used by Respondent. Petitioner established by clear and convincing evidence that the extent to which Respondent relied on that methodology in evaluating this patient exceeded any acceptable use of ART in 1995 and constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Because of his over-reliance on ART, Respondent's diagnosis was flawed, and there was insufficient justification for his subsequent treatment of the patient. 5/ On December 21, 1995, C. C. returned to Respondent for the extraction of tooth #3 and tooth #19. Respondent extracted the two teeth and removed bone in the vicinity of each tooth that he thought was necrotic, a procedure referred to as cavitation. Respondent testified that he encountered soft, mushy bone following the extractions. He removed hard bone in the extraction area with a small rotary bur. He removed soft tissue and bone with a curette. There was a conflict in the evidence as to whether Respondent was justified in removing bone surrounding the extraction sites. Based on Respondent's testimony and the depositions and dental records of C. C.'s dentists who treated her after Respondent, it is concluded that his decision to remove bone surrounding the extraction sites was within his clinical judgment. It should be noted, however, that Respondent's dental records provide no justification for this extensive removal of bone adjacent to the extraction sites. Following the extractions and cavitation procedures, Respondent injected the patient's mouth and face with Notakehl, Pefrakehl, and Arthrokelan. Prior to her visit to Respondent, C. C.'s teeth #5 and #17 had been extracted. Respondent injected the area where tooth #5 had been with the Sanum remedies using a stabident drill, a dental drill that is usually used to administer anesthesia. He also injected the Sanum remedies where tooth #17 had been. Following the extractions of teeth #3 and #19, Respondent irrigated the extraction wounds with the Sanum remedies. Respondent injected the right sphenopalatine ganglion area and the left and right otic ganglion areas, the superior origin and inferior origin pharyngeal constrictor muscles, and the submandibular ganglion with a one percent solution of Xylocaine that also contained drops of Notakehl. Respondent testified he used Xylocaine, an epidural grade anesthetic, as a carrier for Notakehl. Some of the injections were made into the oral cavity while others were made through the face. Consistent with homeopathic practice, Respondent believed that these injections would promote healing. Tooth #3 is located directly beneath the right maxillary sinus cavity. From the X-rays available to him, Respondent knew that the root canal material that had been used to fill that tooth was very close to the thin membrane that protects the sinus cavity. Following his extraction of tooth #3, Respondent did not determine whether the maxillary sinus membrane had been perforated during the extraction procedure. Petitioner established by clear and convincing testimony that this failure constituted practice below the standard of care as alleged in Count VI of the Amended Administrative Complaint. Following the extractions, Respondent placed some soft tissue back into the extraction sites, which covered a little bit of the socket, and he left a little bit of an opening for a clot to form to heal from the inside out. He sutured the area around the buccal bone, which he had reflected in order to remove the tooth. C. C. returned to Respondent on December 22, 23, 24, 27, 28, 29, 1995, and January 5 and 10, 1996. On December 22, 1995, Respondent checked the extraction sites and electrically stimulated the extraction sites using a process referred to as micro current. On December 23, 1995, Respondent checked the extraction sites, applied micro current to those sites, and injected a one percent solution of Xylocaine with drops of Notakehl into the right sphenopalatine ganglion, both otic ganglions, and the left submandibular ganglion. On December 24, 1995, Respondent applied micro current to the extraction sites and injected Sanum remedies into the area of the extraction sites. On December 27, 1995, C. C. telephoned Respondent to complain of pain in the area from which tooth #3 had been extracted. From what she told him, Respondent believed that C. C. had a perforated maxillary sinus. When he examined her on December 27, 1995, he confirmed that she had a sinus perforation. Respondent reopened the area he had sutured on December 21, 1995, cleaned out granulated tissue. 6/ He did a flap procedure, referred to as a plastic closure, where tissue was reflected from the cheek side of the gum and placed over the extraction site to the palate side. He thereafter injected the right otic ganglion and right sphenopalatine ganglion with a solution of one percent Xylocaine and Notakehl. Between December 28, 1995, and January 10, 1996, Respondent continued his homeopathic treatment of C. C. combined with the micro current procedure. Respondent did not treat C. C. after January 10, 1996. C. C. knew when she agreed to the extractions that she would have to have bridges for the areas of the extractions. Those two bridges were inserted after she left Respondent's care. Petitioner asserted that Respondent practiced below the standard of care by failing to appropriately close the sinus perforation on December 27, 1995. That assertion is rejected. On January 18, 1996, James Medlock, D.D.S. examined C. C. at his dental office in West Palm Beach, Florida. C. C. was not experiencing difficulty with the flap procedure Respondent had performed on December 27, 1995, when she was seen by Dr. Medlock. Gary Verigan, D.D.S., treated C. C. at his dental office in California between February 1996 and May 1997. Richard T. Hansen, D.D.S., treated C. C. at his dental office in California between May 1997 and November 1999. The dental records of Dr. Medlock, Dr. Verigan, and Dr. Hansen for C. C. are in evidence as Joint Exhibits 1, 3 and 4, respectively. The depositions of Dr. Medlock and Dr. Hansen are in evidence. Dr. Hansen re-opened the area of the maxillary sinus that Respondent had closed with the flap procedure and found that bone had not re-generated in that area. Dr. Hansen believed that Respondent was not the cause of the problems for which he treated C. C. There was insufficient evidence to establish that the subsequent dental problems encountered by C. C. were caused by the extraction, cavitation, or flap procedure performed by Respondent in December 1995. Petitioner did not establish by clear and convincing evidence that Respondent's closure of the sinus perforation on December 27, 1995, constituted practice below the standard of care. Respondent did not have malpractice insurance or proof of financial security at the time that he treated C. C. He did not have proof of financial security until March 13, 1997, when he obtained an irrevocable letter of credit from Palm Beach National Bank and Trust to bring himself in compliance with Petitioner's Rule 64B5-17.011, Florida Administrative Code. 7/ This irrevocable letter of credit was current at the time of the final hearing. Respondent is a dentist who treats people who are chronically ill. Respondent's use of ART and homeopathic remedies are clearly unconventional and can, in Respondent's own words, cause a lot of harm if he is not careful. Under the facts of this case, his failure to have malpractice insurance or proof of financial responsibility while practicing alternative dentistry on high-risk patients is found to be an especially egregious violation of Rule 64B5-17.011, Florida Administrative Code. His subsequent compliance with that Rule is not viewed by the undersigned as being a mitigating factor. Petitioner established by clear and convincing evidence that Respondent failed to keep adequate dental records in violation of Section 466.028(1)(m), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. Respondent's medical history for the patient is incomplete. Although Respondent testified he did not take X-rays because of the patient's history of radiation poisoning, his medical history does not reflect that history. Respondent did not chart C. C.'s teeth, which is a routine practice. His description of his examination was vague, his findings were vague, and his proposed treatment plan was vague. His records did not reflect that he had viewed X-rays of the patient, did not reflect that Notakehl was injected with Xylocaine, and did not reflect the anesthetic that was used to numb the mouth during the extraction. The most serious deficiency is that his records provide no justification for the extraction of two teeth or for the cavitation procedures that followed, a basic requirement of Section 466.028(1)(m), Florida Statutes. There was a conflict in the evidence as to whether Respondent's use of the Sanum remedies constituted practice below the standard of care or experimentation. Petitioner did not establish that the practice of homeopathy is per se below the standard of care or that the use of homeopathic remedies in this case constituted experimentation. Respondent established that the three Sanum remedies he administered to C. C. are recognized homeopathic remedies, and he also established that the manner in which he administered these remedies was consistent with homeopathic practice. The conflict in the evidence is resolved by finding that Petitioner did not prove by clear and convincing evidence that Respondent's use of the homeopathic remedies constituted practice below the standard of care or experimentation. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the violations alleged in Counts I, IV, and VI of the Amended Administrative Complaint. For the violation of Section 466.028(1)(m), Florida Statutes (Count I), Respondent's licensure should be placed on probation for a period of two years with the requirement that he take appropriate continuing education courses pertaining to record-keeping. For the violation of Rule 64B5-17.011, Florida Administrative Code (Count IV), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. For the violation of Section 466.028(1)(x), Florida Statutes (Count VI), Respondent's license should be suspended for a period of one year to be followed by a period of probation for a period of five years. It is further RECOMMENDED that Respondent be reprimanded for each violation and assessed an administrative fine in the amount of $3,000 for each violation, for a total of $9,000. It is further recommended that the suspension of licensure RECOMMENDED for Counts IV and VI and all periods of probation run concurrently. It is further RECOMMENDED that all other charges be dismissed. DONE AND ENTERED this 15th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 2001.
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.
Findings Of Fact Dr. Donald P. Austin freely, intelligently, and voluntarily admitted to violation of the provisions of Florida Statutes, 466.24(3)(e), and the Regulations of the Florida State Board of Dentistry, Chapter 21-G-9, Florida Administrative Code, by permitting Carmella Carney, an unlicensed person acting under his supervision and control, to perform work constituting the practice of dental hygiene, in that on Decumber 12, 1974 he permitted said Carmella Carney to remove calculus from the teeth of a patient, Barbara Dubrian. (TR 3-7) Similar Charges were filed against two licensed dentists who had practiced with Dr. Austin, and the proceedings were informally disposed of by the admissions of the dentists as to the accuracy of facts contained in the Accusation. Each dentist received a public reprimand in connection with those charges. The incident resulting in charges being filed against Dr. Austin was an isolated incident, and was the only occasion upon which Dr. Austin permitted any unlicensed person acting under his supervision to remove calculus from the teeth of a patient. (TR 9, 14, 15, 25). Dr. Austin's reputation among his colleagues for professional competence and integrity is excellent. (TR 23 - 25, 28, 29). The patient involved in this incident had very light calculus, only slightly heavier than heavy stains. Dr. Austin examined the work performed by Ms. Carney, and the teeth were clean. The patient did not complain about the work, and in fact, complemented Ms. Carney for it. Dr. Austin did not charge the patient for the work. (Th 9, 13-15).
Findings Of Fact Upon consideration of the oral and documentary' evidence adduced at the hearing, the following relevant facts are found: DHRS administers the Program which is jointly funded by the state and federal government under Title XIX of the Social Security Act. The Program is voluntary and is subject to both state and federal laws, rules and regulations. The Program does not reimburse providers such as Dr. Clement for all services rendered. Only those services which are determined to be medically necessary or which the state has determined it wishes to provide are covered by the Program. The services to be rendered and the fees to be paid for those services are set forth in the policy manuals and fee schedules which are given the provider when he enrolls in the Program. Under the Program, the provider files claims in accordance with the policies set forth in the manual. Those claims are computer processed and it is assumed that the provider is submitting the claims in accordance with the policies. The computer system is not programmed to reject all erroneous claims. Therefore, the provider is automatically reimbursed based upon claims submitted. The Program operates on the honor system and must "pay and chase" providers who submit improper claims. Under the Program the state is required to protect the integrity of the Program by reviewing providers for possible fraud and abuse. The Program utilizes a Surveillance Utilization and Review System (SURS) which compares a provider's Medicaid practice with that of his peers. This system takes the provider's computer generated claims history and compares it both quantitatively and qualitatively with the average practice of his peers. When a potential problem is detected, the provider's practice is further reviewed to determine if fraud or abuse has occurred. On November 4, 1983, Dr. Clement signed a provider agreement with DHRS and operated under this provider agreement at all times material to this proceeding. In signing this provider agreement, Dr. Clement agreed to "submit requests for payment in accordance with program policies" and to, "abide by the provisions of the Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. In billing under the Program, Dr. Clement is expected to provide services in accordance with generally accepted practices of his profession of dentistry. Those services for which a provider may submit claims are set forth in the Children's Dental Services Manual (HRSM 230-22), a copy of which was provided to Dr. Clement when he entered the Program. In addition to the manual, Dr. Clement was provided with an EDS Billing Handbook which explained the mechanics of submitting a claim. HRSM 230-22 is merely a compilation of procedures for which the Program will reimburse the provider along with the reimbursement rate for each procedure. The manual utilizes procedures and codes utilized by the American Dental Association, is prepared with technical assistance of dental consultants, and is reviewed by various dental associations. The manual is designed for use by dental providers who are knowledgeable in the field of dentistry and are utilizing generally accepted principles of dentistry. In 1985 a SURS Level I Review report, comparing Dr. Clement with his peer group of general dentists providing services to children, indicated possible inappropriate billing of the Program. Because of the nature and extent of the billing problems, Dr. Clement's case was referred to the Medicaid Fraud Control Unit (MFCU) of the State of Florida's Auditor General's Office for possible criminal prosecution. DHRS took no further action pending the criminal investigation. Criminal charges were subsequently filed against Dr. Clement as a result of the MFCU investigation and Dr. Clement's case was referred back to the Medicaid Office of Program Integrity for review of nine possible areas of program policy violations which were not part of the criminal prosecution. The Program thereupon conducted its own investigation into possible abuse by Dr. Clement. Using the preliminary investigation done by an HRS dental consultant who reviewed Dr. Clement's practice for MFCU, and the original Level I Review report, a DHRS investigator reviewed ad hoc computer reports of claims submitted by Dr. Clement for specific dental procedures. Based upon the computer analysis of claims submitted, as well as the advice of the dental consultant, the Program identified nine areas of Dr. Clement's practice of Medicaid billing which were not in compliance with Medicaid billing procedures or generally accepted standards of dental practice. On sixty-six occasions, Dr. Clement submitted claims and was paid for procedures such as examinations, prophylaxis and fluoride treatment at intervals of less than six months. HRSM 230-22 recommends that such procedures be performed no more frequently than once every six months, and this recommendation is recognized under generally accepted standards of dentistry. This recommendation is applicable to both private pay patients and Medicaid patients who are generally indigent. Although such treatment may be necessary on occasions at shorter intervals, Dr. Clement offered no evidence to justify the frequency or the necessity of providing such procedures at intervals of less than the recommended six months. On two hundred and eighty six occasions, Dr. Clement improperly filed claims and received payment for consultations. HRSM 230-22 only allows claims for consultations by a dental specialist (oral surgeon, periodontist, endodontist, or prosthodontist). Dr. Clement is not a dental specialist and should not have submitted claims for such procedures. The manual's definition and interpretation of the appropriate billing procedure for consultation services is in accordance with the generally accepted practice of dentistry. On ninety four occasions, Dr. Clement submitted claims and received payment for behavior management and nitrous oxide on the same visit. HRSM 230- 22 only allows claims for behavior management where nitrous oxide is not used. There was no evidence to show that both behavior management and nitrous oxide on the same visit was necessary. On seven occasions, Dr. Clement submitted claims and received payment for extracting more than one first tooth in a given quadrant. HRSM 230-22 provides a fee of $10.00 for the extraction of the first tooth in a given quadrant which is billed on a claim as procedure D7110 whereas each additional tooth extracted in the same quadrant at the same time is reimbursed at the rate of $7.00 and billed on a claim as procedure D7120. The fee for the removal of the first tooth in a given quadrant is higher than the fee for each succeeding tooth in the same quadrant because anesthesia for the first tooth does not have be administered for each succeeding tooth in the same quadrant. Dr. Clement received payment for 117 alveolectomies (a reshaping of the bone) performed on 52 children which is an excessive number. Alveolectomies should only be performed in extreme cases where, without an alveolectomy, the insertion of dentures or partials would be impossible. It is standard dental practice to perform an alveolectomy only where a denture is supplied. Performing an alveolectomy on a child is not a common practice. There was no evidence that Dr. Clement performed the alveolectomies in preparation of insertion of partials or dentures. Dr. Clement filed an excessive number of claims for pulp caps. A pulp cap is a protective material utilized when the pulp of the tooth is exposed (direct pulp cap) or nearly exposed (indirect pulp cap). HRSM 230-22 differentiates a pulp cap from a medicated base. A pulp cap is reimbursable as a separate claim, the medicated base is not. Dr. Clement claimed and received payment for pulp caps 68.7 percent of the time in conjunction with a tooth restoration. There was credible evidence to show that in the generally accepted practice of dentistry, pulp caps are used no more than 5 percent of the time in a tooth restoration. Dr. Clement billed for pulp caps whenever he applied a medicated base, even though the pulp was not exposed or nearly exposed. On one hundred occasions Dr. Clement improperly filed claims and received payment for palliative (emergency) treatment at the same time that he filed a claim and was paid for regular dental treatment. Palliative treatment is used to relieve pain and discomfort on an emergency basis when time and circumstances contra-indicate a more definitive treatment and additional services. In the general accepted practice of dentistry, palliative treatment is used as a temporary measure to assist the patient until such time as regular treatment can be provided. Palliative treatment and any other treatment are mutually exclusive and normally would not be given on the same day. On those occasion where Dr. Clement filed claims and received payment for both palliative treatment and regular treatment on the same day, there is insufficient evidence to show that this treatment was within the generally accepted practice of dentistry. On sixteen occasions Dr. clement improperly filed claims and was paid for prophylaxis, periodontal scaling, and gingival curettage all on the same date of service. Prophylaxis is the standard cleaning of the teeth. Periodontal scaling is a more advanced procedure of cleaning wherein larger deposits of caclculus are removed by scraping. Gingival curretage is a more drastic procedures wherein pockets which have formed between the gum and the teeth are scraped out. While all three procedures are different, they overlap somewhat and it is not a generally accepted practice of dentistry to perform more than one of these procedures at any given time. There was no evidence presented to show that performing all three procedures on the same date was necessary or was within the generally accepted practice of dentistry. Dr. Clement filed an excessive number of claims for gingival curretage. Dr. Clement claimed and received payment for gingival curretage on 14 percent of his patients under the age of 17. In the generally accepted practice of dentistry, the use of gingival curretage on children will not normally exceed 1 percent to 3 percent for ages 10 and under or 3 percent to 6 percent over the age of 10. Although Dr. Clement urged that these claims for gingival curretage had been given prior approval, the evidence showed that the prior approval had been given based on information furnished by Dr. Clement and the dental consultant giving the prior approval did so on that information on a case by case basis and did not know of the excessive use of gingival curretage by Dr. Clement. Based on the nine areas cited for inappropriate billing, there is substantial competent evidence to show that Dr. Clement was not following generally accepted standards of dental practice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Department of Health and Rehabilitative Services enter a Final Order finding that Dr. Clement has abused the Florida Medicaid Program and terminating Dr. Clement from participation in the Florida Medicaid Program. Respectfully submitted and entered this 7th day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 7th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3023 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 16. 17. Adopted in Finding of Fact 17. 18. Adopted in Finding of Fact 18. 19. Adopted in Finding of Fact 19. 20. Adopted in Finding of Fact 20 as clarified. 21. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 17 but clarified. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. 9 The first sentence adopted in Finding of Fact 19. The balance is rejected as immaterial and irrelevant. COPIES FURNISHED: Theodore E. Mack, Esquire 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32399 Harold E. Regan, Esquire 308 East College Avenue Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
