98-002404 Department Of Health, Board Of Denistry vs. Marta Nieto, D.D.S. Status: Closed Recommended Order on Thursday, February 1, 2001.

Summary: Respondent violated the dentistry practice by violating Subsections 466.028(1)(c), (j), (l), (m), (t), (x), (z), and (aa), mainly dealing with Medicaid fraud. Suspension, probation, and fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 98-2404

)

MARTA NIETO, D.D.S., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 18 and 19, 2000, in Miami, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

For Respondent: Anthony C. Vitale, Esquire

799 Brickell Plaza, Suite 700

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the

Administrative Complaint and the amendment thereto, which added

an additional count, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On May 5, 1998, the Department of Health, Board of

Dentistry, filed a seven-count Administrative Complaint against

Marta Nieto, D.D.S. (Respondent), charging her with the following

violations: Count I--violating Subsection 466.028(1)(x), Florida

Statutes, by being guilty of incompetence or negligence by

failing to meet the minimum standards of performance in diagnosis

and treatment when measured against generally prevailing peer

performance, including, but not limited to, the undertaking of

diagnosis and treatment for which the dentist is not qualified by

training or experience or being guilty of dental malpractice for

extracting teeth without first obtaining pre-operative X-rays;

Count II--violating Subsection 466.028(1)(m), Florida Statutes,

by failing to keep written dental records and medical history

records justifying the course of treatment of the patient

including, but not limited to, patient histories, examination

results, test results and X-rays if taken. Count III--violating

Subsection 466.028(1)( aa), Florida Statutes, by violating a rule

promulgated pursuant to Chapter 466, Florida Statutes, through

the violation of Rule 59Q-17.002, Florida Administrative Code,

for failing to properly maintain dental records; Count IV--

violating Subsection 466.028(1)(l), Florida Statutes, by making

deceptive, untrue, or fraudulent representations in or related to

the practice of dentistry for billing Medicaid for services and

treatments not rendered to the patient; Count V--violating

Subsection 466.028(1)(t), Florida Statutes, by engaging in fraud,

deceit, or misconduct in the practice of dentistry for billing

Medicaid for services and treatments not rendered to the patient;

Count VI--violating Subsection 466.028(1)(j), Florida Statutes,

by making or filing a report which the licensee knows to be

false, failing to file a report or records required by state or

federal law, knowingly impeding or obstructing such filing or

inducing another person to do so for billing Medicaid for

services and treatments not rendered to the patient; and Count

VII--violating Subsection 466.028(1)(z), Florida Statutes, by

delegating professional responsibilities to a person who is not

qualified by training, experience, or licensure to perform them.

Respondent disputed the allegations of fact contained in the

Administrative Complaint and requested a hearing. On May 21,

1998, this matter was referred to the Division of Administrative

Hearings.

A final hearing was scheduled in this matter for five days

in September 1998. The hearing was continued and re-scheduled.

Prior to the re-scheduled hearing date, Respondent's counsel was

granted leave to withdraw. Respondent's co-counsel continued to

represent Respondent. After another continuance, the parties

reached a settlement which required approval by the Board of

Dentistry. The instant case was held in abeyance pending the

approval of the settlement by the Board of Dentistry. On

February 1, 2000, Petitioner filed an order rejecting the

settlement. Subsequently, Respondent obtained new counsel, and

the final hearing in this matter was re-scheduled for five days

in September 2000. By Order dated April 21, 2000, Petitioner was

granted leave to amend the Administrative Complaint, adding Count

VIII which charged Respondent with violating Subsection

466.028(1)(c), Florida Statutes, by being convicted or found

guilty of or entering a plea of nolo contendre to, regardless of

adjudication, a crime in any jurisdiction which relates to the

practice of dentistry.

At hearing, Petitioner presented the testimony of five

witnesses and entered 14 exhibits (Petitioner's Exhibits numbered

1-14) into evidence. 1 Respondent testified in her own behalf,

presented the testimony of three witnesses 2 and entered 19

exhibits (Respondent's Exhibits numbered 1-5, 8, and 10-22) into

evidence. 3

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post-hearing submissions was set

for more than ten days following the filing of the transcript.

The Transcript, consisting of two volumes, was filed on

October 2, 2000. The parties timely filed their post-hearing

submissions, which were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of dentistry pursuant to Chapters 455 and 466,

Florida Statutes, and Section 20.43, Florida Statutes.

2. At all times material hereto, Respondent was a licensed

dentist in the State of Florida, having been issued license

number DN 0013137. Respondent has been licensed to practice

dentistry since July 1992, over eight years.

3. Prior to being licensed in Florida, Respondent was a

licensed dentist in Cuba, having been licensed in 1986.

Respondent has also completed a post-graduate course in oral

surgery, maxillary facial surgery, and oral and facial

reconstructive surgery.

4. Respondent is a single parent. She has a 15-year-old

son.

5. In 1993, Respondent opened her first dental office. Her

patients were Hispanic and were mostly private patients.

6. In her dental practice, Respondent performed general

dentistry, as well as specialty areas of dentistry, such as root

canals and surgery. As a result, she did not refer her patients

to dentists who practiced in the specialty areas.

7. From 1995 to 1996, Respondent's practice significantly

changed in patient base and volume. As a result of the Cuban

rafter crisis in South Florida in August 1994, her patient base

changed from mostly private patients and became mostly Medicaid

patients, who were Cuban refugees, and the number of her Hispanic

clients greatly increased.

8. Between 1995 and 1996, most of Respondent's patients

possessed common characteristics. Most of her patients were

Cuban refugees, who did not speak English, were poor, had teeth

in generally poor condition, which needed a substantial amount of

dental work, had gum disease, and were qualified for Medicaid.

9. During the relevant time period in the instant case, for

patients over the age of 21 years, Medicaid paid for only three

services: oral exams, dentures, and extractions. Medicaid did

not cover services or treatments for a filling, cleaning, root

canal, crown, or gum disease.

10. Many of the Respondent's Cuban refugee patients had

chronic gum disease. Respondent rendered many needed dental

services that were not covered by Medicaid.

11. Respondent was known to the Cuban refugees as a dentist

who did not refuse to provide dental treatment. Many of the

Cuban refugees were aware that Respondent would provide dental

treatment for those who were over 21 years of age. In some

instances, Respondent provided dental treatment without cost.

Many Cuban refugees were referred to Respondent by a well-known

Hispanic newspaper in Miami- Dade County.

12. Respondent's practice increased dramatically. Her

patient base increased from 10 to 15 patients a day to nearly 40

patients a day. Her practice experienced a substantial increase

in dental treatment; hours of operation (11 to 12-hour days); the

cost of treating the volume of patients; lab supplies; paper

work; staff; overhead; and administrative costs.

13. As a result of the increase in her practice, Respondent

hired Augustine Gonzalez, as a dental assistant. Mr. Gonzalez

was employed with Respondent for approximately six months,

beginning on or around May 1995. Respondent knew Mr. Gonzalez as

he had graduated from dental school with her in Cuba and they

interned together in Cuba. Respondent considered Mr. Gonzalez to

be a competent dentist due to his education, training, and

experience even though he was not a licensed dentist in the State

of Florida.

14. Mr. Gonzalez performed dental se rvices or treatments,

which were originally designed to be under Respondent's

supervision. Respondent was not always in the same room with

Mr. Gonzalez when he performed the dental services or treatments.

15. Due to the escalation in her practice, Respondent

permitted Mr. Gonzalez to examine patients, drill, and install

permanent fillings. In many instances, because of the escalation

of her practice, Respondent was not able to check a patient after

Mr. Gonzalez examined the patient and to review dental work

performed by Mr. Gonzalez.

16. In the State of Florida, Mr. Gonzalez was not qualified

by training, experience, or licensure to examine patients, drill,

and install permanent fillings. Mr. Gonzalez was not a licensed

dentist in the State of Florida. He was not authorized in the

State of Florida to examine patients or drill or install

permanent fillings. Additionally, Mr. Gonzalez had not completed

any course recognized by the American Dental Association which

would have expanded his duties as a dental assistant.

17. From 1995 to 1996, the following 15 Cuban refugees

patients were among the refugee patients who received dental

services and treatments from Respondent: M.A.A.; A.F.; A.A.;

M.A.; C.G.; D.A.G.; E.A.; I.A.; M.C.A.; E.B.; R.D.; C.V.; R.B.;

M.I.; and A.B. 4

18. At the time that Respondent rendered the dental

services or treatments, all of Respondent's dental records were

written in Spanish.

19. Extractions and fillings were performed on the patients

without first obtaining X-rays. The minimum standard of care

requires the taking of X-rays in diagnosis and treatment prior to

extracting or filling teeth.

20. The Patients' records do not reflect that X-rays were

taken or contain the results of any X-rays. Respondent contends

that X-rays were taken of all patients who were receiving

dentures and routinely of first-time patients. The minimum

standard of care requires the recording in a patient's record of

X-rays being taken and the results therefrom.

21. Respondent failed to take X-rays of the Patients. If

X-rays were taken, the Patients' records would have reflected it.

22. Respondent rendered dental services or treatments which

were not recorded in the Patients' records and rendered more

dental services than reflected in the records. Additionally,

some services or treatments recorded as being performed were not

performed. As a result, Respondent generally failed to maintain

accurate patient records. For example, (1) as to Patient E.B.,

(a) three Spanish charts existed, with each reflecting a

different number of visits and (b) one of the Spanish records

reflected the filling of two teeth (Nos. 18 and 20), one other

such record reflected one filling (No. 18) and sealants; (2) as

to Patient D.A.G., the Spanish chart reflected nine fillings but

Patient D.A.G. maintains that there were probably only two

fillings; (3) as to Patient C.V., the Spanish record failed to

reflect services rendered on a tooth in the patient's lower jaw;

(4) as to Patient M.A., two Spanish charts existed and Respondent

could not definitively state whether the recorded services were

the services rendered to the patient; and (5) as to Patient A.B.,

the recorded entries were out of sequence and Respondent could

not definitively state whether the recorded services were the

services rendered.

23. Respondent's dental records reflect that an oral exam

was performed on the first visits but failed to reflect existing

disease or pathology, or lack thereof, of the patients. Further,

Respondent's dental records reflect the terminology "medical

history" but fail to recite the Patients' medical history.

Consequently, no disease or pathology, or the lack thereof, or

medical history was recorded in the Patients' records.

24. Respondent contends that her dental practice was too

busy and overwhelmed to maintain complete dental records for the

Cuban refugee patients. However, Respondent agrees that a busy

practice does not relieve a dentist from complying with minimum

standards of record keeping.

25. Respondent instructed her office manager, Maria Otero,

to handle the Medicaid billing for the dental office. Respondent

directed Ms. Otero to falsify Medicaid billings and Medicaid

billing records. Ms. Otero was directed by Respondent to change

the dates of services rendered, as necessary, in order for the

services billed to qualify for Medicaid; and to bill Medicaid for

X-rays, extractions, alveoplasties, and dentures.

26. Ms. Otero had no knowledge of which services or

treatments were actually being performed and which were not.

Because of this lack of knowledge, in her billing, Ms. Otero saw

no relationship between the dental work actually performed and

the dental work which was billed. Although dental services and

treatments were rendered for each Patient, Ms. Otero billed for

services or treatments rendered and services or treatments not

rendered.

27. Respondent did not review or check the billing to

Medicaid. She signed the Medicaid billing requests without

reading them.

28. To prepare for the possibility an investigation,

Respondent directed Ms. Otero to create dental records in English

to match the false Medicaid billing. As a result, Respondent had

two sets of dental records for the Patients, one in Spanish (the

correct records) and one in English (the false records).

29. Florida's Office of the Attorney General, Medicaid

Fraud Control Unit (Fraud Unit) conducted an investigation of

possible fraud by Respondent. During the investigation, the

Fraud Unit requested the Patients' records from Respondent.

Respondent provided the actual questionnaire completed by

Patients and also provided the English records, instead of the

Spanish records, as the authentic records. Even when the dental

records were subpoenaed, the English records were provided.

30. During the investigation by the Fraud Unit, Respondent

approached Patient M.A.A. and attempted to persuade him to join

in the untruths presented regarding services or treatments

rendered by Respondent to the Patients. She requested Patient

M.A.A. to lie about the services that had been rendered to him if

he was questioned regarding the services that he had received.

Respondent requested that Patient M.A.A. tell the Fraud Unit that

her office had performed his extractions even though the

extractions were performed in Cuba.

31. Respondent did not admit her participation in the fraud

being perpetuated until her deposition which was taken by

Petitioner on July 11, 2000.

32. As a Medicaid provider, Respondent agreed to accept

payments on Medicaid's scale of fees for Medicaid patients.

Respondent's charges for the same services or treatments rendered

by her to her private patients were more than the reimbursement

fees reflected on Medicaid's scale of fees.

33. Respondent does not dispute that she billed for the

services or treatments rendered in the Administrative Complaint

filed against her by Petitioner. Furthermore, Respondent does

not dispute the dollar amount that she received from Medicaid. 5

34. For Patient M.A.A., Respondent billed for services

rendered on five visits from a period of February 9, 1996,

through March 12, 1996. Respondent billed Medicaid $1,175.00 and

was paid $273.85 by Medicaid. However, had the appropriate

service been billed by Respondent, the payment by Medicaid would

have been $12.00, resulting in an overpayment by Medicaid of

$261.85.

35. For Patient A.F., Respondent billed for services

rendered on 12 visits from a period of May 31, 1995, through

July 28, 1995. Respondent billed Medicaid $819.00 and was paid

$778.05 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment by Medicaid of $766.05.

36. For Patient A.A., Respondent billed for services

rendered on eight visits from a period of December 14, 1995,

through February 4, 1996. Respondent billed Medicaid $1,990.00

and was paid $581.80 by Medicaid. However, had the appropriate

service been billed by Respondent, the payment by Medicaid would

have been $12.00, resulting in an overpayment by Medicaid of

$569.80.

37. For Patient M.A., Respondent billed for services

rendered on four visits from a period of June 6, 1996, through

June 27, 1996. Respondent billed Medicaid $1,035.00 and was paid

$267.15 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment by Medicaid of $255.15.

38. For Patient C.G., Respondent billed for services

rendered on six visits from a period of April 29, 1995, through

June 7, 1995. Res pondent billed Medicaid $908.00 and was paid

$808.45 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment by Medicaid of $796.45.

39. For Patient D.A.G., Respondent billed for services

rendered on five visits from a period of April 27, 1995, through

May 25, 1995. Respondent billed Medicaid $774.00 and was paid

$697.30 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment by Medicaid of $685.30.

40. For Patient E.A., Respondent billed for services

rendered on six visits from a period of January 19, 1996, through

February 20, 1996. Respondent billed Medicaid $1,410.00 and was

paid $341.00 by Medicaid. Patient E.A. was under the age of 21

years, and, therefore, all services were covered by Medicaid.

Had the appropriate service been billed by Respondent, the

payment by Medicaid would have been $1,215.00, resulting in an

underpayment by Medicaid of $874.00.

41. For Patient I.A., Respondent billed for services

rendered on four visits from a period of May 2, 1996, through

May 23, 1996. Respondent billed Medicaid $835.00 and was paid

$229.18 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment of $217.18.

42. For Patient M.C.A., Respondent billed for services

rendered on 11 visits from a period of June 3, 1995, t hrough

December 26, 1995. Respondent billed Medicaid $1,570.00 and was

paid $1,067.70 by Medicaid. However, had the appropriate service

been billed by Respondent, the payment by Medicaid would have

been $12.00, resulting in an overpayment by Medicaid of

$1,055.70.

43. For Patient E.B., Respondent billed for services

rendered on 11 visits from a period of May 16, 1995, through

July 15, 1995. Respondent billed Medicaid $908.00 and was paid

$862.60 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment by Medicaid of $850.60.

44. For Patient R.D., Respondent billed for services

rendered on nine visits from a period of June 30, 1995, through

August 24, 1995. Respondent billed Medicaid $1,116.00 and was

paid $1,060.20 by Medicaid. However, had the appropriate service

been billed by Respondent, the payment by Medicaid would have

been $12.00, resulting in an overpayment by Medicaid of

$1,048.20.

45. For Patient C.V., Respondent billed for services

rendered on nine visits from a period of June 6, 1995, through

August 4, 1995. Respondent billed Medicaid $1,121.00 and was

paid $1,064.95 by Medicaid. However, had the appropriate service

been billed by Respondent, the payment by Medicaid would have

been $881.00, resulting in an overpayment by Medicaid of $183.95.

Also, included in the services rendered and billed to and paid by

Medicaid was the preparation of dentures to Patient C.V.,

however, no extractions were performed on Patient C.V., so he did

not obtain the dentures from Respondent.

46. For Patient R.B., Respondent billed for services

rendered on eight visits from a period of March 8, 1995, through

April 21, 1995. Patient R.B. also received dentures from

Respondent. Respondent billed Medicaid $1,063.00 and was paid

$971.85 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$500.30, resulting in an overpayment by Medicaid of $471.55.

47. For Patient M.I., Respondent billed for services

rendered on 11 visits from a period of April 1, 1995, through

May 30, 1995. Respondent billed Medicaid $1,231.00 and was paid

$1,169.45 by Medicaid. However, had the appropriate service been

billed by Respondent, the payment by Medicaid would have been

$12.00, resulting in an overpayment by Medicaid of $1,157.45.

48. For Patient A.B., Respondent billed for services

rendered on 10 visits from a period of November 2, 1995, through

January 12, 1996. Respondent billed Medicaid $1,231.00 and was

paid $1,169.45 by Medicaid. Also, included in the services

rendered and billed to and paid by Medicaid were the preparation

and delivery of dentures to Patient A.B. It could not be

determined what services were actually performed for Patient A.B.

and, therefore, it cannot be determined what the payment by

Medicaid would have been if the appropriate services had been

billed and what the overpayment, if any, is.

49. As a result, for the 15 Patients, Respondent billed

$18,467.00 to Medicaid, was paid $11,126.88 by Medicaid, and

received $7,445.23 in overpayment from Medicaid. None of the 15

Patients were aware that Respondent was billing Medicaid for

dental services not rendered.

50. Medicaid pays for dentures only once. For patients who

did not actually receive dentures from Respondent, but the

providing of dentures was billed to Medicaid, those patients may

possibly have a problem in the future in securing dentures paid

for by Medicaid.

51. As to services or treatments rendered by Mr. Gonzalez,

he performed the examination and cleaning and checked fillings of

Patient C.G.; performed the examination and cleaning and

installed fillings of Patient D.A.G.; and performed the

examination and cleaning, installed fillings, and took

impressions for dentures of Patient C.V. Patients C.G., D.A.G.,

and C.V. were satisfied with the services that they received.

52. The services and treatments performed by Respondent for

the 15 Patients were necessary services. Petitioner does not

contend that Respondent failed to practice dentistry with

reasonable skill and safety.

53. By Order of Emergency Suspension of License, filed

April 17, 1998, Respondent's license to practice dentistry was

suspended on an emergency basis by the Board of Dentistry.

54. On October 15, 1999, Respondent was charged with one

count of Medicaid fraud by the Statewide Prosecutor for the State

of Florida in the Circuit Court of the Eleventh Judicial Circuit,

in and for Dade County, Florida, Case No. 99-35476. The charge

of Medicaid fraud was a result of her false Medicaid billing

arising from her practice of dentistry.

55. On June 28, 1999, Respondent entered into a plea

agreement. The terms of the plea agreement included, among other

things, a plea of guilty with the understanding that Respondent

would request that adjudication be withheld; three-year probation

with 2600 hours of community service, $100,000.00 reimbursement

to the Florida Medicaid Program, pay $5,000.00 to the Office of

the Attorney General, Medicaid Fraud Control Unit for costs of

the investigation, and $3,500.00 to the Office of the Statewide

Prosecutor for costs of prosecution; and full cooperation by

Respondent with the State of Florida in its investigation.

56. On November 9, 1999, Respondent plead guilty to the one

count of Medicaid fraud. Adjudication was withheld and

Respondent was placed on probation for three years with 2600

hours of community service. Furthermore, on November 9, 1999,

the Court entered judgments against Respondent for $100,000.00,

payable to the Agency for Health Care Administration for

restitution; for $5,000.00, payable to the Office of the Attorney

General, Medicaid Fraud Control Unit for investigative costs; and

for $3,500.00, payable to the Office of the Statewide Prosecutor

for costs of prosecution.

57. On November 18, 1999, the terms of Respondent's

probation were modified by the Court to permit Respondent to

perform her community service hours in a dental facility.

58. On January 3, 2000, Respondent's counsel an d counsel

for the Statewide Prosecutor entered into a stipulation amending

Respondent's plea agreement. The amended stipulation was filed

with the Court in Respondent's Medicaid fraud case. The amended

stipulation provided in pertinent part as follows:

In order to serve the public in a more

appropriate manner and commensurate with her

professional abilities, Dr. Nieto may fulfill

her obligation providing services as a

dentist or a dentist assistant in any

governmental or public health facility

(including a correctional facility), during

the three year period, which will include the

period during which she is suspended from

private practice, if approved by the

Department of Health, Board of Dentistry, at

a rate of no less than twenty (20) hours

weekly as community service.

59. An inference is drawn, from the actions of the

Statewide Prosecutor and the Court, that Respondent's conduct

should not prevent her from practicing dentistry.

60. In February 2000, Respondent was notified by the U.S.

Department of Health and Human Services that, as a result of her

conviction for Medicaid fraud, she was excluded from

participating in the Medicare, Medicaid, and all federal health

care programs for a minimum of five years.

61. Respondent has not practiced since the emergency

suspension of her license on April 17, 1998, almost three years

ago.

62. Not being able to practice has exacted a toll on

Respondent's life. She experienced a state of depression and is

under psychological treatment and taking medication for her

depression. Her finances have suffered severely, and in addition

to losing her dental practice and office, she has lost her home.

63. Respondent has no prior disciplinary action by

Petitioner.

64. Character witnesses testified on behalf of Respondent.

One such witness was Eladio Armesto who publishes the oldest

Cuban-American weekly newspaper in the State of Florida and

publishes a magazine which is a feature of the newspaper.

Mr. Armesto referred many Cuban refugees to Respondent, advising

Respondent that the potential patients could not pay her for her

services. He also referred non-Medicaid eligible persons, as

well as Medicaid-eligible persons, to Respondent. Respondent

never refused services or treatments to any of the referrals.

Mr. Armesto praised Respondent's willingness to help and the

dental work provided to Cuban refugees by Respondent.

65. Many letters in support of Respondent were also

submitted.

66. The undersigned is persuaded that Respondent's actions

in falsifying the dental records and the Medicaid billing claims

were not for financial gain, although one cannot dismiss that

Respondent did receive monies from Medicaid, but were to assist

Cuban refugees with the dental work needed by them. Respondent

rendered dental services, for the 15 Patients and other patients,

beyond that for which Medicaid would pay and for which the

patients could pay themselves.

CONCLUSIONS OF LAW

67. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes.

68. License revocation proceedings are penal in nature.

The burden of proof is on the Petitioner to establish by clear

and convincing evidence the truthfulness of the allegations in

the Administrative Complaint and the amendment thereto.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

69. Respondent is charged with violating Subsection

466.028, Florida Statutes, which provides in pertinent part:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(c) Being convicted or found guilty of or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which relates to the practice of

dentistry . . . .

* * *

(j) Making or filing a report which the

licensee knows to be false, failing to file a

report or record required by state or federal

law, knowingly impeding or obstructing such

filing or inducing another person to do so.

Such reports or records shall include only

those which are signed in the capacity as a

licensee.

* * *

(l) Making deceptive, untrue, or fraudulent

representations in or related to the practice

of dentistry.

* * *

(m) Failing to keep written dental records

and medical history records justifying the

course of treatment of the patient including,

but not limited to, patient histories,

examination results, test results, and X-

rays, if taken.

* * *

(t) Fraud, deceit, or misconduct in the

practice of dentistry . . . .

* * *

(x) Being guilty of incompetence or

negligence by failing to meet the minimum

standards of performance in diagnosis and

treatment when measured against generally

prevailing peer performance, including, but

not limited to, the undertaking of diagnosis

and treatment for which the dentist is not

qualified by training or experience or being

guilty of dental malpractice . . . .

* * *

(z) Delegating professional responsibilities

to a person who is not qualified by training,

experience, or licensure to perform them.

( aa) The violation . . . of . . . any rule

promulgated pursuant to chapter 455 or this

chapter . . . .

* * *

(2) When the board finds any applicant or

licensee guilty of any of the grounds set

forth in subsection (1), it may enter an

order imposing one or more of the following

penalties:

* * *

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine not

to exceed $3,000 for each count or separate

offense.

(d) Issuance of a reprimand.

(e) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board may specify,

including requiring the licensee to attend

continuing education courses or demonstrate

competency through a written or practical

examination or to work under the supervision

of another licensee.

(f) Restricting the authorized scope of

practice.

(3) There shall be a minimum 6-month

suspension of the license of a dentist who is

convicted of a violation of paragraph (1)(z).

70. Section 409.920, Florida Statutes (1995), provides in

pertinent part:

(1) For the purposes of this section, the

term:

(a) "Fiscal agent" means any individual,

firm, corporation, partnership, organization,

or other legal entity that has contracted

with the department [Department of Health and

Rehabilitative Services] to receive, process,

and adjudicate claims under the Medicaid

program.

(b) "Item or service" includes:

1. Any particular item, device, medical

supply, or service claimed to have been

provided to a recipient and listed in an

itemized claim for payment; or

2. In the case of a claim based on costs,

any entry in the cost report, books of

account, or other documents supporting such

claim.

(c) "Knowingly" means done by a person who

is aware or should be aware of the nature of

his conduct and that his conduct is

substantially certain to cause the intended

result.

(2) Any person who:

(a) Knowingly make, cause to be made, or aid

and abets in the making of any false

statement or false representation of a

material fact, by commission or omission, in

any claim submitted to the department or its

fiscal agent for payment is guilty of a

felony of third degree. . . .

(b) Knowingly makes, causes to be made, or

aids and abet in the making of a claim for

items or services that are not authorized to

be reimbursed by the Medicaid program is

guilty of a felony of the third degree. . . .

71. Rule 59Q-17.002, Florida Administrative Code, now Rule

64B5-17.002, Florida Administrative Code, provides in pertinent

part:

(1) For the purpose of implementing the

provisions of subsection 466.028(1)(m),

Florida Statutes, a dentist shall maintain

written records on each patient which written

records shall contain, at a minimum, the

following information about the patient:

(a) appropriate medical history;

(b) results of clinical examination and

tests conducted, including the

identification, or lack thereof, of any oral

pathology or diseases;

(c) any radiographs used for the diagnosis

or treatment of the patient;

(d) treatment plan proposed by the dentist;

and

(e) treatment rendered to the patient.

72. Petitioner has demonstrated by clear and convincing

evidence that Respondent violated Subsection 468.028(1)(x),

Florida Statutes, by extracting teeth without first obtaining

pre-operative X-rays; Subsection 466.028(1)(m), Florida Statutes,

by failing to maintain accurate dental records reflecting the

treatment rendered to patients; Subsection 466.028(1)( aa),

Florida Statues, by failing to properly maintain dental records;

Subsection 466.028(1)(l), Florida Statutes, by billing Medicaid

for services or treatments not rendered to the patient;

Subsection 466.028(1)(t), Florida Statutes, by billing Medicaid

for services or treatments not rendered to the patient;

Subsection 466.028(1)(j), Florida Statutes, by billing Medicaid

for services or treatment not rendered to the patient; Subsection

466.028(1)(z), Florida Statutes, by delegating professional

responsibilities to a Mr. Gonzalez who was not qualified by

training, experience, or licensure to perform them; and

Subsection 466.028(1)(c), Florida Statutes, by being found guilty

of Medicaid fraud.

73. Petitioner has promulgated rules addressing the penalty

for violations of the dentistry practice act. The disciplinary

guidelines are found at Rule 59Q-13.005, Florida Administrative

Code, now Rule 64B5-13.005, Florida Administrative Code. For a

licensee committing violations enumerated in Section 466.028,

Florida Statutes, a reprimand and an administrative fine not

exceeding $3,000.00 per count or offense shall always be imposed

unless mitigating factors are demonstrated; and such reprimand

and fine are in addition to the other penalties imposed for the

individual violations of Section 466.028, Florida Statutes. For

a violation of Subsections 466.028(1)(c), (j), (l), (m), (t),

(x), and ( aa), Florida Statutes, the penalty ranges from

probation to revocation of license; and a violation of Subsection

466.028(1)(z), Florida Statutes, a minimum 6-month suspension,

with the option to also impose probation or restriction of

practice.

74. In accordance with the disciplinary guidelines, several

mitigating factors should be considered by Petitioner.

Respondent has no prior disciplinary action against her. The

offenses occurred from March 1995 through June 1996, over four

years ago. The actual dental work performed on the patients has

not been shown to be incompetent. Respondent has not practiced

dentistry for almost three years since the Emergency Suspension

Order was issued in April 1998. As a result of her conviction of

Medicaid fraud, Respondent was ordered by the court to, among

other things, reimburse the Agency for Health Care Administration

in the amount of $100,000.00.

75. Furthermore, Respondent was not motivated by money but

by the desire to assist Cuban refugees who were not able to

receive all of the dental assistance through Medicaid that they

needed. However, in taking the course of action that she took,

Respondent violated the dentistry practice act and criminal laws,

and she knew that she was committing such violations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of

Dentistry, enter a final order:

1. Finding that Marta Nieto, D.D.S., violated Subsections

466.028(1)(c), (j), (l), (m), (t), (x), (z), and ( aa), Florida

Statutes.

2. Suspending Dr. Nieto's license for five years, with the

time period during the emergency suspension being applied towards

the five-year suspension.

3. Placing Dr. Nieto on probation for three years under the

terms and conditions deemed appropriate.

4. Imposing an administrative fine of $24,000.00.

DONE AND ENTERED this 1st day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February, 2001.

ENDNOTES

1/ Five of the exhibits were deposition testimony.

2/ Due to unusual circumstances, Respondent proffered the

testimony of one witness, Rita Ballester. Petitioner agreed to

accept the proffered testimony as the actual testimony of the

witness.

3/ Respondent's Exhibits numbered 6 and 7 were duplicates of

exhibits already entered into evidence by Petitioner.

Respondent's Exhibit numbered 9 was withdrawn.

4/ Only three of the 15 Patients, Patients C.V., D.A.G., and

C.G., testified at hearing; and only one patient's testimony,

Patient E.A., was presented by deposition and entered into

evidence. Petitioner entered into evidence sworn statements of

the Patients taken by an investigator. The sworn statements are

statements of third parties and are, therefore, hearsay. The

sworn statements are not subject to an exception of the hearsay

rule. However, hearsay evidence may be subject to Subsection

120.57(1)(c), Florida Statutes.

5/ Respondent submitted dollar values for the dental services or

treatments that she rendered to the 15 Patients based upon what a

private patient would have paid for her services. The amounts

submitted by Respondent are not considered. The claims for

services rendered were submitted to Medicaid for payment by

Medicaid based upon Medicaid's fee schedule, not the fee schedule

that a dentist would charge private patients.

COPIES FURNISHED:

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Michael J. Cohen, Esquire

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

Anthony C. Vitale, Esquire

799 Brickell Plaza, Suite 700

Miami, Florida 33131

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.