99-005011 Department Of Health, Board Of Chiropractic vs. Daniel Pia, D.C. Status: Closed Recommended Order on Monday, June 26, 2000.

Summary: A preponderance of the evidence, though less than clear and convincing, justifies a $5000 fine and a reprimand for solicitation, through a third party, of chiropractic patients.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF CHIROPRACTIC, )

)

Petitioner, )

)

vs. ) Case No. 99-5011

)

DANIEL PIA, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of

Administrative Hearings, conducted the final hearing in Tampa,

Florida, on March 15, 2000.

APPEARANCES

For Petitioner: Wings S. Benton, Senior Attorney

Agency for Health Care Administration

Office of General Counsel

Medical Quality Assurance

Practitioner Regulation--Legal

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: David P. Rankin

The Law Offices of David P. Rankin, P.A.

3837 Northdale Boulevard

Suite 332

Tampa, Florida 33624

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of violating the

prohibitions against soliciting patients or paying kickbacks.

PRELIMINARY STATEMENT

By Amended Administrative Complaint dated May 24, 1999,

Petitioner alleged that Respondent, a licensed chiropractor,

engaged in a practice in which, through the efforts of a third

party, he obtained patients through solicitation, as defined by

Rule 59N-15.002, Florida Administrative Code, in violation of

Sections 455.237(2) and 460.413(1)(l), (v), and (q), Florida

Statutes.

At the hearing, Petitioner called six witnesses and offered

into evidence 21 exhibits. Respondent called seven witnesses and

offered into evidence seven exhibits. All exhibits were admitted

except Petitioner Exhibits 14, 15, 20, and 21. Petitioner

withdrew Petitioner Exhibits 20 and 21.

The court reporter filed the Transcript on April 13, 2000.

FINDINGS OF FACT

1. Respondent has been a licensed chiropractor in Florida

for over 40 years. Respondent has operated the Albany- Sligh

Clinic since 1964. In 1965 and 1985, Respondent was the

president of the Hillsborough County Chiropractors Association.

He has been the Secretary of the Florida Chiropractic

Association. Respondent has not previously been disciplined.

2. Respondent attributes part of the success of his

chiropractic practice to the use of consultants, such as Singer

Consultants in Clearwater. Respondent has also attended the

lectures of Dr. Peter Fernandez. Practicing chiropractors may

pay sizable sums--one reported pay $15,000--for the advice of

professional consultants.

3. Respondent obtains his patients from other patients and

advertising in the telephone yellow pages. Essentially,

Respondent has always allowed free initial consultations, as he

cancels the account balance of anyone who does not pay for the

initial office visit, provided there have been no additional

visits.

4. In late 1991, Susan Prebeck visited Respondent. She

introduced herself as the wife of a chiropractor and explained

that she and her husband were thinking of moving from Colorado to

Florida, specifically the Tampa Bay area.

5. During lunch, Ms. Prebeck stated that it was legal in

Colorado for third parties to call prospective patients and

conduct health surveys. She stated that she was performing this

service for other chiropractors in Colorado.

6. Respondent replied that she could do telemarketing with

a group, but she could not charge a fee for the patients obtained

by this means. Respondent knew that paying a fee to a third

party for obtaining a patient was illegal, and he told Ms.

Prebeck that he would never do such a thing.

7. A couple of years later, in late October 1993, Ms.

Prebeck came by Respondent's office and asked that he agree to

meet with her and her husband. One or two weeks later,

Respondent met Glenn Prebeck and Ms. Prebeck at a prearranged

time.

8. The meeting lasted one to one and one-half hours.

During this time, Dr. Prebeck explained what he could do to

enhance Respondent's practice. Among other things, Dr. Prebeck

explained the complex mechanics by which Respondent could expand

into other clinics and various means of educating one's staff in

matters such as insurance.

9. During the meeting, Respondent gave Dr. Prebeck a $1000

check drawn on Respondent's professional account, dated

October 14, 1993, and payable to Prebeck Consultants, Inc., a

corporation controlled by Dr. Prebeck. The check states that it

is a refundable deposit for 30 days' consulting services from

Dr. Prebeck.

10. On November 22, 1993, Respondent, on behalf of his

professional association, signed a Community Service/Pilot

Program Agreement (Community Service Agreement). Although

unsigned by the Florida Physician's Care Center--an entity

controlled by Dr. or Ms. Prebeck--the agreement was honored by

the Florida Physician's Care Center. The Community Service

Agreement provides that, as "part of its community service

functions," Florida Physician's Care Center would contact injured

persons and inform them that Respondent would provide them a free

consultation and examination. The Community Service Agreement

states that both parties are providing these services as a

"community service" and that "no compensation shall be paid by

[Respondent] to the Center for such service."

11. The following day, Respondent, on behalf of his

professional association, signed a Consulting Agreement with

Physicians Consultant, Inc., for which Dr. Prebeck signed. This

agreement provided that the Physicians Consultant, Inc. would

provide one-on-one consulting on a variety of topics in return

for which Respondent would "pay for such services by a fee to be

determined by the amount of consulting service rendered."

12. By check dated November 23, 1993, Respondent paid

Prebeck Consultants an additional $2000. Subsequently,

Respondent delivered three more checks, each in the amount of

$3150, to Prebeck Consultants; these checks are dated March 24,

April 3, and May 27, 1994.

13. There is no dispute that the Prebecks engaged in

criminal activity through the solicitation of insurance clients.

There is no dispute that Respondent had no familial or prior

professional relationship with the patients referred to him.

Although Respondent disputes the point, the evidence is clear and

convincing that a significant motive, in accepting referrals for

free initial office visits, is the pecuniary gain that follows

from the establishment of a patient/doctor relationship.

14. The issue in this case is whether Respondent solicited

patients through the efforts of the Prebecks. The Prebecks have

generally testified that their deal with Respondent was a

straightforward exchange of money for referrals. Respondent has

generally testified that their deal was an exchange of money for

consultation services, and Ms. Prebeck freely chose to send him

patients as part of her self-declared "community service," which

actually consisted of a scripted telemarketing scheme to find

injured persons with third party payors and send them to a

participating chiropractor, such as Respondent.

15. The Prebecks booked the money paid by Respondent as

payments for patients. The first payment of a $1000 deposit and

$2000 balance bought ten referrals. The price then increased,

and the next three payments of $3150 bought a total of 30 more

referrals.

16. It is difficult to find the correspondence between the

total sum paid, $12,450, and the 56 referred patients. The

resulting average of $2223 per 10 patients is considerably below

the stated prices, according to the Prebecks. The Prebecks did

not explain this discrepancy. However, the Prebecks supplied

early referrals for free to another chiropractor before asking

her to agree to pay for the patients whom they had shown they

could produce.

17. However, it is more difficult to document the

consultations. Respondent testified that he no longer has the

notes that he made from the consultations. Respondent's office

manager and junior chiropractor saw little, if any, evidence of

these consultations, for which Respondent paid over $12,000.

18. The fact that Respondent signed the Community Service

Agreement and Consulting Agreement only one day apart suggests a

link between the two contracts. Also, even though Ms. Prebeck,

not Dr. Prebeck, was involved in the "community services,"

Dr. Prebeck presented both contracts for Respondent to sign.

19. Much more indicative of a link between the two

contracts is a letter dated March 21, 1994, from Respondent to

Dr. Prebeck. Occasioned by the renewal of "my contract," which,

from the context is clearly the Consulting Agreement,

Respondent's letter begins by expressing satisfaction with the

consultation services that he has received from Dr. Prebeck.

Mentioning the statutory prohibition against paying for patients,

the letter declares: "It is my understanding, and has been from

the beginning, that the services for which I am paying you are

strictly consultation."

20. Getting to the point, the letter continues:

I have been delighted that you have been able

to recommend me to Community Services pilot

program, wherein I am giving free screenings

to patients who have been recently involved

in automobile accidents. It enables patients

to have an opportunity to find out if they

have subluxations leading to disability,

otherwise would probably never have known.

However, I want to make certain, by your

signature below, restating what you told me

upon our initial contact, that Community

Services is not owned by you, or in any way

has any bearing on our consulting contract.

I say this because I want to make certain

that I am paying only for your consulting

services, and it is in no way tied into the

occasional patients that we receive from

Community Services, a pilot program that I

understand is separate from your consulting

services.

Please sign below confirming same, since that

is the only issue that is in question.

Otherwise, I am delighted with the consulting

services, and I feel that the three thousand

dollars paid on November 23, 1993, was well

worth it for the numerous personal and

telephone consultations we have had, and

advice I have received.

I, Dr. Glen Prebeck, hereby confirm with my

signature below that the above facts are

true, and that Dr. Pia's payment is strictly

for my consulting services. Fees for

consulting services go only to me, and in no

way are related to the free screenings done

by Dr. Pia through Community Service.

21. Respondent signed the March 21, 1994, letter, but his

copy does not bear the signature of either Prebeck or any other

signatory for Prebeck Consultants. Although Dr. Prebeck was

ambivalent about numerous aspects of his dealings with

Respondent--such as testifying that he might have provided

consultant services, but later testifying that he did not provide

such service--Dr. Prebeck was positive that he had never seen

this letter. Coupled with the fact that the prudence that would

have dictated the letter's preparation would also have dictated

obtaining a signature and safekeeping of the signed copy, the

fact is that the letter was a self-serving document never signed,

and possibly never presented, to either Prebeck.

22. Obviously, the same concerns that Respondent expressed

to Ms. Prebeck during their first meeting persisted through the

first four months of his arrangements with the Prebecks. Despite

these reservations and the failure to obtain even the signature

of Dr. Prebeck to his self-serving letter, Respondent paid

Dr. Prebeck three more checks--the first three days after the

date of the letter.

23. Objectively, the reality of the arrangement between

Respondent and the Prebecks was that Respondent would not receive

the referrals unless he paid Dr. Prebeck. This reality was, of

course, clear to the Prebecks from the start. The question,

though, is the extent, if any, to which Respondent understood the

reality of the arrangement.

24. Respondent was aware that Ms . Prebeck had charged for

referrals outside of Florida, that to do so in Florida was

illegal, and that the formal arrangement that he had with the

Prebecks was a matter of concern because, if the two Prebeck

organizations were treated as one, Respondent was paying for

referrals.

25. Respondent's testimony is evidently self-serving and

poorly documented. However, the Prebecks' testimony is also

self-serving. Although their criminal cases have been resolved,

they hope to shorten the terms of probation through their

cooperation with the State of Florida in administrative

proceedings, such as this case.

26. Respondent's many years of practice suggest that he

should have been on inquiry notice that Ms. Prebeck's

organization was merely a unscrupulous boiler-room operation.

His 40 years' experience and long presence in the chiropractic

community suggest that Respondent should have heard about the

"community service" being performed by Ms. Prebeck, from someone

other than one of the Prebecks. But Respondent conveniently

ignored the absence of independent verification of the activity

of Ms. Prebeck's organization, just as he ignored the strong

suggestion of improper payments if the two transactions were

collapsed into a single transaction, as, in reality, they were.

27. A preponderance of the evidence supports a finding that

Respondent knew that he was, in reality, paying for referrals.

This knowledge is established by the initial presentation by Ms.

Prebeck that prompted an anti-solicitation warning from

Respondent, the link between the two contracts and their

presentation by Dr. Prebeck, the numerous "free" referrals from

Ms. Prebeck that followed the payment of the "consultation" fees,

the absence of proof of consultation services, Respondent's many

years' experience, and, of course, the testimony of the Prebecks.

28. But the evidence in support of Respondent's knowledge

of the purpose of the "consultation" payments is not clear and

convincing. The Prebecks' credibility is impaired, although not

destroyed, by their fraudulent criminal behavior and their

current legal posture. The relationship between the payments and

referrals is imperfect. The retention of a consultant is a not

uncommon practice. Respondent has practiced many years without

discipline. These facts create sufficient doubt as to preclude a

finding of clear and convincing evidence.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1), Florida

Statutes. (All references to Sections are to Florida Statutes.

All references to Rules are to the Florida Administrative Code.)

30. Section 460.413(1)(l)(1993) provides that the Board of

Chiropractic Medicine may impose discipline for "[s] oliciting

patients either personally or through an agent . . .."

31. Rule 64B-15.002(2), formerly Rule 59N-15.002(2)

prohibits the solicitation:

in person or otherwise, a prospective patient

with whom a chiropractor has no family or

prior professional relationship, when a

significant motive for such solicitation is

the chiropractor's pecuniary gain. A

chiropractor shall not permit employees or

agents of the chiropractor to solicit in the

chiropractor's behalf. A chiropractor shall

not enter into an agreement for, charge, or

collect a fee for professional services

obtained in violation of this rule. The term

"solicit" includes contact in person or by

telephone.

32. Section 460.413(6) provides:

In any administrative action against a

chiropractic physician which does not involve

revocation or suspension of license, the

department shall have the burden, by the

greater weight of the evidence, to establish

the existence of grounds for disciplinary

action. The department shall establish

grounds for revocation or suspension of

license by clear and convincing evidence.

33. The administrative action sought by Petitioner involves

suspension, as reflected in Petitioner's proposed recommended

order. However, as used in Section 460.412(6), "administrative

action" means the actual imposition of discipline. The

prosecution of this case and proposal of discipline--even

revocation or suspension--is merely proposed administrative

action.

34. Thus, for Petitioner to revoke or suspend Respondent's

license, it must prove the relevant facts by clear and convincing

evidence. Department of Banking and Finance v. Osborne Stern and

Company, Inc. , 670 So. 2d 932 (Fla. 1996), and Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

35. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the court defined clear and convincing evidence as:

that a workable definition of clear and

convincing evidence must contain both

qualitative and quantitative standards. We

therefore hold that clear and convincing

evidence requires that the evidence must be

found to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations

sought to be established.

35.1 As noted above, per proved the material facts by a

preponderance of the evidence, not clear and convincing evidence.

36. The difficulty of proving the facts of this case may

suggest the need for consideration of the promulgation of an

attribution rule, so that licensees paying certain minimum sums

to certain classes of persons cannot accept referrals from

persons within certain classes of relationships with the payor

persons. Absent such a rule, Petitioner must prove that the

licensee knowingly participated in an unlawful arrangement.

37. Rule 64B2-16.003(1)(t) sets a disciplinary range of

$500 to one year's probation for a violation of Section

460.413(1)(v), which more specifically describes the acts and

omissions of which Respondent is guilty than does Section

455.624(1)(q), which covers a violation of the anti-kickback

statute, Section 455.657(2).

38. As Petitioner notes in its proposed recommended order,

factors include in mitigation the length of time since the last

violation and the length of time that Respondent has practiced

without prior discipline. However, aggravating factors include

the number of purchased referrals and the length of time over

which Respondent participated in this scheme.

39. Section 460.413(2)(d) authorizes discipline in the form

of a $10,000 administrative fine per offense. Sections

460.413(2)(e) and (f) authorize a reprimand and probation.

40. Given all of the circumstances, Petitioner should

impose a fine of $5000 and a reprimand.

RECOMMENDATION

It is

RECOMMENDED that Petitioner enter a final order finding

Respondent guilty of soliciting patients through an agent and

imposing an administrative fine of $5000 and a reprimand.

DONE AND ENTERED this 26th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ROBERT E. MEALE

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 26th day of June, 2000.

COPIES FURNISHED:

Joe Baker, Jr., Executive Director

Board of Chiropractic

Department of Health

4052 Bald Cypress Way

Bin C07

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

4052 Bald Cypress Way

Bin A02

Tallahassee, Florida 32399-1701

Wings S. Benton, Senior Attorney

Agency for Health Care Administration

Office of General Counsel

Medical Quality Assurance

Practitioner Regulation--Legal

Post Office Box 14229

Tallahassee, Florida 32317-4229

David P. Rankin

The Law Offices of David P. Rankin, P.A.

3837 Northdale Boulevard

Suite 332

Tampa, Florida 33624

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 must be filed with the agency that will

issue the final order in this case.