11-004936PL Department Of Health, Board Of Chiropractic Medicine vs. John P. Christensen, D.C. Status: Closed Recommended Order on Friday, March 16, 2012.

Summary: Respondent is guilty of making deceptive representations related to the practice of medicine. Insufficient evidence that Respondent billed for services never provided. Recommend one-year suspension followed by probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , BOARD OF )

CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 11 - 4936 PL

)

JOHN P. CHRISTENSEN, D.C. , )

)

Respondent. )

_____________ ___________________)

RECOMMENDED ORDER

A final hearing was held in this case before Edward T.

Bauer, an Administrative Law Judge of the Division of

Admini str ative Hearings, on December 15 , 2011 , by video

teleconference a t sites in Tallahassee and West P alm Beach ,

Florida.

APPEARANCES

For Pet itioner: Gavin Burgess , Esquire

Alicia E. Adams, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Allan L. Hoffman, Esquire

W. Grey Tesh, Esquire

1610 Southern Boulevard

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations contained in the Corrected Amended

Administ rative Complaint , and if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On August 18, 2011 , Petitioner, Department of Hea lth, Board

of Chiropractic Medicine, filed a three - count Administrative

Complaint agai nst Respondent, Dr. John P. Chris tensen , the

grava men of which was that Respondent engaged in dec eptive

practices and submitted claims for reimbursement for medical

services that were never provided.

Respondent timely requested a formal hearing to contest the

allegations, a nd, on Sept ember 23 , 201 1 , the matter was referred

to the Division of A dministrative Hearings ("DOAH") and assigned

to Administrative Law Judge John G . Van Laningham. On

December 9 , 2011, Judge Van Laningham transferred the instant

matter to the undersigned.

Prior to the final hearing, Petitioner moved to amend the

Complaint to allege that Respondent's business partner had

submitted fraudulent insurance claims ÏÏ as opposed to Respondent

personally ÏÏ and that Respondent "authorized, approved, and/or

knew or shoul d have known" of such misconduct. After reviewing

the Am ended Administrative Complaint ( an unsigned copy of which

was attached to Petitioner's Motion to Amend ) , as well as

Respondent's response in opposition, the undersigned granted

Petitioner's request. Properly executed copies of the Amended

Administrative Complaint and Corrected Ame nded Administrative

Complaint ("Complaint") w ere filed, respectively, on December 19

and 20, 2011.

As noted above, the final hearing in t his matter was held

on December 15 , 2011, during which Petitioner presented the

testimony of Respondent and Robert Yastrzemski. Without

obj ection, Petitioner introduced 17 exhibits int o evidence,

numbered 1 - 11 and 13 - 18. Respondent presented the testimony of

Marie Altidor and introduced fo ur exhibits, numbered 1 - 4.

The final hearing t ranscript was f iled with DOAH on

January 13, 2012 . Subsequently, on February 2, 2012, the

parties filed a joint request to extend the deadline for the

submission of proposed recommended orders to February 16, 2012.

On the following day, the undersigned issued an order that

granted the requested extension of time.

Both parties thereafter submitted proposed recommended

orders, which have been considered in the preparation of this

Recommended Order. 1 /

FIND INGS OF FACT

A. The Parties

1 . Petitioner Department of Health has regulatory

jurisdiction over licen sed chiropractic physicians such as

Respondent . In particular, Petitioner is authorized to file and

prosecute an administrative complaint, as it has d one in this

instance, when a panel of the Board of Chiropractic Medicine ha s

found probable cause to suspect that the chiropractic physician

has committed one or more disciplinable offenses.

2. At all times relevant to this proceeding, Respondent

wa s a chiropractic physician licensed in the State of Florida ,

having bee n issued license number CH 2363.

B. Background / Arrangement with Dr. Wagner

3 . In or around 1975, Respon dent completed his training at

the National University of Health Science s and began to practice

chiropractic medicine shortly thereafter .

4. Some 15 years later, Respondent and an acquaintance ÏÏ

Dr. Joseph Wag ner, also a licensed chiropractor in the State o f

Florida ÏÏ matriculated at a medical school in the Dominican

Republi c. Although both Respondent and Dr. Wagner ultimately

earned Doctor of Medicine ("MD") degrees in the mid 1990s,

Respondent was not licensed in Florida to practice as an MD

until early 2006 . Significantly, Dr. Wagner never obtained

licensure as a medical doctor.

5. In 2007, Respondent and Dr. Wagner entered into a joint

venture designed, in the words of Respondent, to "expand" Dr.

Wagner's chiropractic practice. At that time, and for the

duration of their business agreement, Respondent's principal

p lace of business was located in Palm Beach County, while

Dr. Wagner practiced chiropractic medicine in Daytona Beach.

6. Under the joint venture (which continued until August

2011, when both their offices were raided by the Federal Bureau

of Invest igation), Respondent traveled to Daytona Beach several

times each month and interacted with Dr. Wagner concerning some,

but not all, of Dr. Wagner's chiropractic clients (hereinafter

" joint - venture clients " or "JVCs").

7. From what can be gleaned of th e credible portions of

Respondent's deposition and final hearing testimony, it appears

that Respondent's activity with respect t o JVCs included a

review of client files, and, in some cases, a determination that

one or more medications ÏÏ including narcotics Ï Ï should be

prescribed. Indeed, Respondent's level of participation was so

minimal that his face - to - face interaction with JVCs consisted,

at most, of an initial introduction, and on no occasion did

Respondent personally examine ÏÏ or perform treatments upon Ï Ï any

JVC.

8. At the conclusion of an office visit , Dr. Wagner ÏÏ and

Respo ndent, if the JVC was seen on a day when Respondent was

prese nt in the Daytona office ÏÏ dictate d medical notes that

Dr. Wagner usually transcrib ed at a later time .

9. Responde nt has acknowledged, both at the final hearing

and during his deposition, that he provided Dr. Wagner with

blanket authority to create claim forms and medical notes in

connection with each JVC . Incredibly , Respondent also granted

Dr. Wagner complete autho rity to affix his (Respondent's)

signature to claim forms and submit them ÏÏ without Respon dent

looking at the forms beforehand ÏÏ to insurance carriers for

reimbursement. This was accomplished not by the use of a stamp,

which medical professionals often prov ide to their subordinates

to expedite business affairs, but by Dr. Wagner manually

signing , in cursive, "John P. Christensen" inside the box of the

claim form labeled "signature of the physician or supplier."

10. Another unusual aspect of the business arrangement

between Respondent and Dr. Wagner was the manner in which they

dealt with reimbursement checks from insurance carriers. By

agreement , reimbursement checks for claims that relat ed to JVCs

were received by mail at Dr. Wagner's place of business in

Daytona Bea ch. Upon their receipt , Dr. Wagner deposited the

checks into a SunTrust checking account for which Responden t had

sole signatory authority. At the end of each month, Respondent

wo uld transfer the entire balance of the SunTrust account into

h is business account at PNC Bank. Shortly thereafter,

Respondent would draft a check on the PNC account to Dr. Wagner

in an amount equal to 50 percent of the monthly proceeds. 2 /

11 . Against the foregoing backdrop, the undersigned will

turn to the speci fi c allegations enumerated in the Complaint,

namely : that Dr. Wagner, in connection with JVCs , submitted

claims to an insurance carrier for services that were never

provided ÏÏ i.e., he overbilled ÏÏ and that Respondent approved,

authorized, and/or knew or sh ould have known of the misconduct

(as charged in Counts One and Three); and that the Respondent

and Dr. Wagner's billing practices w ith respect to the four JVCs

constituted fraudulent, deceptive, or untrue representations

related to the practice of a profe ssion (Count Two). The

undersigned will begin with a discussion of the facts relating

to Count Two.

C. Deceptive Billing Practices

12 . In or around August 2009, three individuals ÏÏ S.J.,

J.J. (S.J's cousin), and L.J. (S.J's mother) ÏÏ were involved in

an automobile accident. Thereafter, in late 2009 and early

2010, S.J., J.J., and L.J. p resented themselves on a number of

occasions for chiropractic services at Dr. Wagner's office in

Daytona Beach.

13 . Roughly one year earlier , patient C.H. was likewi se

involved in a car accident. C.H. was subsequently referred to

Dr. Wagner for chiropractic treatment by her personal injury

attorney, Joshua Wagner, who happens to be the son of Dr. Joseph

Wagner . It appears from the record that C.H. was treated at Dr.

Wagner' s clinic on multiple dates.

14 . Pursuant to the parties' Joint Prehearing Stipulation,

it is undisputed that S.J., J.J., L.J. , and C.H. each had

personal injury protection (PIP) insurance from Direct General

Insurance Company ("DGIC"). PIP insurance coverage allows a

medical or chiropractic pr ovider to treat insured persons and

then submit a reimbursement claim to the ins urance company for

the service (s) provided.

15 . Beginning with the claims associated with C.H .,

Respondent has consiste ntly mai ntained that C.H . was not a

joint - venture client , that he had no knowledge of C.H ., and that

any claim submitted by D r. Wagner in connection with C.H . was

without his knowledge or authorization. T he undersigned credits

this portion of Respondent's testimony ; thus, any bills that

relate to C.H . cannot sustain a finding of a deceptive or

fraudulent practice.

16 . However, the cases of S.J., J.J., and L.J. are another

matter. Based upon Res pondent's deposition testimony, the

undersigned is persuaded that Dr. Wagner, with Respondent's

knowledge and authorization , submitted reimbursement claims to

DGIC in connection with S.J., J.J., and L.J. that bear the

following dates: January 30, 2010 (S.J.); January 30, 2010, and

March 13 and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.). 3 /

17 . While the exact services billed to DGIC varied by JVC

and date, the content of each of these claim forms represented

unambiguously that the examinations and /or treatments ÏÏ e.g., a

trigger point injection for L.J. on M arch 27, 2010 ÏÏ were

performed by Respondent and no other . This was un questionably

deceptive in light of Respondent's consistent testimony that he

never physically conducted medical examination s or treatments in

connection with any joint - venture client .

D. Alleged Overbilling

18 . In contrast to Count Two , the charges that relate to

overbilling (Counts One and Three) cannot be sustained merely by

proof that claims for reimbursement ÏÏ i.e., the c laims identified

in paragraph 16 above , which Respon dent authorized ÏÏ we re

submitted for services that Respondent did not perform. Rather,

it is incumbent upon Petitioner to demonstrate that the services

billed were not performed at all .

19 . In this regard , the deposition tra nscripts of L.J. and

S.J. , which consist entirely of hearsay, are the only evidence

that the billed services were not performed by anyone . While

th e deposition testimony of L.J. and S.J. is credible, there is

a complete absence of non - hearsay evidence as to what procedures

or servi ces were never provided to the se specific patients

during their office visits. All that was proven ÏÏ based upon

Respondent's admissi ons and supple mented by the hearsay

testimony o f the JVCs ÏÏ is that Respondent did not perform the

billed services, which, as explained in greater detail in the

Conclusions of Law of this Recommended Order , is insufficient to

satisfy Petitioner's burden.

E. Ultimate Findings of Fact

20 . It is determined, as a matter of ultimate fact, that

Respondent engaged in deceptive, untrue, or fraudulent

representations in or related to the practice of his profession.

21 . It is further determined, as a matter of ultimate

fact, that Petitioner failed to demonstrate that Respondent

submitted to a third - party payor a claim for a serv ice or

treatment that was not actually provided to a patient.

22 . Finally, as a matter of ultimate fact, it is

determined that that Petitioner failed to prove that Respondent,

in connection with a personal injury protection claim,

intentionally submitted a bill or claim for reimbursement for

services that were not rendered.

CONCLUSIONS OF LAW

A. Jurisdiction

23 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1) , Florida Statutes .

B. The Burden and Standard of Proof

24 . This is a disciplinary proceeding in which Petitioner

seeks to discipline Respondent's licen se to practice medicine .

Accordingly, Petitioner m ust prove the allegations contained in

Administra tive Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

25 . Clear and convincing evidence:

[R]e quires 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 lacking in confusion as to the facts in

issue. The evidence must be of such a

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.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

C. Petitioner's Authority to Impose Discipline;

The Charges Against Respondent

26 . Sectio n 460.413 (1 ), Florida Statutes, authorizes the

Board of Chiropractic Medicine to impose penalties ranging from

the issuance of a letter of concern to revocation of a

chiropractic physicia n's lic ense to practice in Florida if the

licensee commits one or more acts specified therein.

27 . I n its Complaint, Petitioner alleges that Respondent

is guilty of billing for services that were not provided,

contrary to se ctions 460.413(1)(x) and 456.072 (1) (ff), Florida

Statutes (Counts One and Three, respectively), and engaging in

deceptive, untruthful, or fraudulent representations in or

related to the practice of chiropractic medicine , in violation

of section 456.072(1)(m), Florida Statutes (Count Two). For

ease of discussion, the undersigned will begin with Count Two.

D. Count Two

28 . In Count Two of the Complaint , Petitioner alleges,

inter alia, that Respondent "authorized, approved and/or knew or

should have known of the submission of medical re cords to DGIC,

which falsely indicated that he provided treatment to [L.J.,

S.J., and/or J.J.]," and that Respondent is therefore in

violation of secti on 456.072(1)(m), which reads :

(1) The following acts shall constitute

grounds for which the disciplinar y actions

specified in subsection (2) may be taken:

* * *

(m) Making deceptive, untrue, or fraudulent

representations in or related to the

practice of a profession or employing a

trick or scheme in or related to the

practice of medicine.

29 . Pursuant to the findings of fact contained herein,

there is clear and convincing evidence that Respondent

authorized Dr. Wagner to submit written claims for

reimbursement , identified in para graph 16 of this Recommended

Order, which represented ÏÏ deceptively and unt ruthfully ÏÏ that he

( Respondent) provided services to S.J., L.J, and J.J. As such

misconduct plainly relates to the practi ce of chiropractic

medicine, s ee Doll v. Department of Health , 969 So. 2d 1103,

1104 - 05 (Fla. 1st DCA 2007 )(holding that submission of

fraudulent reimbursement claims related to the practice of

chiropractic medicine; licensee falsely represented in the

claims that he had conducted technical components of mag netic

resonance imaging testing ), Respondent is guilty of violating

section 456.0 72(1)(m).

E. Counts One and Three

30 . Petitioner further alleges, in Count One of the

Corrected Amended Administrative Complaint, that Respondent

violated section 460.413(1)(x), which provides that a licensee

is subject to discipline for "[s]ubmitting to any third - party

payor a claim for a service or treatment which was not actually

provided to a patient." (emphasis added).

31 . Petitioner contends similarly, in Count Three , that

Respondent has violated section 456.072(1)(ff), which prohibits

a licensee from "intentionally submitting a claim, statement, or

bill for payment of services that were not rendered " in

connection with a personal injury protection claim. (emphasis

added).

32 . Significantly , and likely in recognition of t he fact

that medical professionals often delegate responsibilities to

colleagu es (e.g., a fellow physician, a physician's assistant,

or a nurse ) , neither of the foregoing statutes contemplates that

a licensee is subject to discipline based upon the submiss ion a

claim for a service that was not personally rendered by the

licensee. Instead, the plain language of sections 460.413(1)(x)

and 456.072(1)(ff), which must be strictly co nstrued in favor of

Respondent, see Jonas v. Fl orida Department of Business and

Professional Regulation , 746 So. 2d 1261, 1262 (Fla. 3d DCA

2000), prohibit s only the submission of a claim for services

were not provided at all . As such, it is incumbent upon

Petitioner in this proceeding to demonstrate that one or more of

the claims en umerated in the Complaint 4 / sought reimbursement for

s ervices or treatments that were never rendered .

33 . Before proceed ing further, it must be remembered that

although hearsay is admissible in administrative proceedings to

supplement or explain other ev idence, hearsay is insufficient by

itself ÏÏ even where the opposing par ty did not object to its

introduction ÏÏ to susta in a finding of fact unless the hearsay

evidence would be admissible over objection in a civil action .

Scott v. Dep't of Bus. & Prof'l Reg . , 603 So. 2d 519, 520 (Fla.

1st DCA 1992)(reversing final order suspending nursing license

where evidence consisted solely of a hearsay report that would

not have been admissi ble over objection in a civil proceeding,

notwithstanding licensee's failure to appear at the final

hearing or respond to the administrative complaint); Harris v.

Game & Fresh Water Fish Comm'n , 495 So. 2d 806, 808 - 09 (Fla. 1st

DCA 1986) ; Charles W. Ehrhardt, Ehrhardt's Florida Evidence §

103.2, p. 10 (2008 ed.)( " [M]ost cases hold tha t where there is

no objection to the hearsay, even when the party does not appear

at the hearing, it cannot be the sole basis to support a

finding " ); 120.57(1)(c), Fla. Stat. It is pursuant to this

legal principle that Counts One and Three jump the rails.

34 . As noted previously , the deposition transcripts of

S.J. and L.J. are the only record evidence that could

conceivably allow a finding that the claims enumerated in the

Complaint sought reimbursement for services that were never

provided by anyone ( none of the joint - venture clients testified

live during the final hearing, no deposition transcript of J.J.

was submitted, and no medical professionals other than

Respondent were called) . Although uno bjected to, the

transcripts are hearsay , see Dinter v. Brewer , 420 So. 2d 932,

933 (Fla. 3d DCA 1982), and insufficient alone to sustain

factual findings unless the transcripts could have been admitted

over objection in a civil proceeding.

35 . The use of depositions in civil proceedings is

governed by Flor ida Rule of Civil Procedure 1.330 , which

provides, in relevant part:

(a) Use of Depositions . -- At the trial or

upon the hearing of a motion or an

interlocutory proceeding, any part or all of

a deposition may be used against any party

who was present or re presented at the taking

of the deposition or who had reasonable

notice of it so far as admissible under the

rules of evidence applied as though the

witness were then present and testifying in

accordance with any of the following

provisions:

* * *

(3) The deposition of a witness, whether or

not a party, may be used by any party for

any purpose if the court finds: (A) that

the witness is dead; (B) that the witness is

at a greater distance than 100 miles from

the place of trial or hearing , or is out of

the state, unless it appears that the

absence of the witness was procured by the

party offering the deposition; (C) that the

witness is unable to attend or testify

because of age, illness, infirmity, or

imprisonment; (D) that the party offering

the deposition has been unable to procure

the attendance of the witness by subpoena;

(E) upon application and notice, that such

exceptional circumstances exist as to make

it desirable, in the interest of justice and

with due regard to the importance of

presenting the tes timony of witnesses orally

in open court, to allow the deposition to be

used; or (F) the witness is an expert or

skilled witness.

36 . As t he foregoing language reveals, r ule 1.330(a )(3)

authorizes the introduction and use of deposition transcripts

"for any purpose" in six s ituations, none of which appl ies under

the facts at hand. Specifically, there is no suggestion that

the attendance of the joint - venture clients ÏÏ neither of whom is

an expert or ski lled witness ÏÏ could not be procured by subpoena,

nor i s there any indication that the JVCs are dead or unable to

attend the hearing due to age, incarceration, or infirmity.

This leaves only two other possibilities under the rule : r ule

1.330(a)(3)(B), which require s a finding that the witnesses are

more than 100 miles fr om the hearing location or out of state;

and r ule 1.330(a)(3)(E), which necessitates a showin g of

"exceptional circumstances " upon notice and application.

37 . With respect to rule 1.330(a)(3)(E), although

Petitioner issued notices indicating that the depositions would

be used in lieu of live testimony, it made no application ÏÏ

orally or in writing ÏÏ to demonstrate the existence of

"exceptional circumstances." Accordingly, rule 1.330(a)(3)(E)

does not authorize the use of the transcripts.

38 . Turni ng to rule 1.330(a)(3)(B), the depositions of

S.J. and L.J. were taken in Daytona Beach (the city where

Dr. Wagner's clinic was l ocated) in early December 2011, and

therefore it is possible that the witnesses were at or near that

location at the time of the final hearing. In the undersigned's

judgment, however, it is inappropriate to make a finding of

unavailability based upon the location where a witness is

deposed, see Weber v. Berry , 133 So. 2d 327 , 328 - 30 (Fla. 2d DCA

1961)(holding no abuse of discretion in excluding deposition

transcripts where the proponents failed to adduce evidence that

the witnesses, who lived and were deposed in Chicago, were more

than 100 miles away at the time of trial), and, in any event,

the residential addresses ÏÏ i ncluding the cit ies where S.J. and

L.J. reside ÏÏ have been redacted from the deposition transcripts

and subpoenas. Thus, barring a stipulation from Respondent as

to the witnesses' availability (there is no such stipulation in

the record), rule 1.330(a)(3)( B) is inapplicable.

39 . Although the Flori da Rules of Civil Procedure are of

no assistance to Petitioner on this occasion , that does no t end

the analysis, as the undersigned must look to the ru les of

evidence to determine if a hearsay exception applies. Dinter v.

Brewer , 420 So. 2d 932, 934 (Fla. 3d DCA 1982) ("Exceptions to

the rule excluding depositions as hearsay are found not only in

the rules of civil procedure, but in the rules of evidence

. . . . [W]hen the deposition does not come within the exce ption

provided in the civil procedure rule, we must turn to the rules

of evidence in our search for an exception . ").

40 . Consistent with Dinter , the undersigned has examined

the rules of evidence and finds no hearsay exception that

applies to those porti ons of the patients' de position testimony

that describe the services that were never performed . Although

a protracted discussion of every potential hearsay exception

would be impractical, it should be noted that undersigned

considered, and rejected, the a pplication of the prior testimony

exceptions codified in sections 90.803(22) and 90.804(2) (a) ,

Florida Statutes. See Grabau v. Dep't of Health , 816 So. 2d

701, 707 - 709 (Fla. 1st D CA 2002)(holding that section 90.803(22)

is unconstitutional and therefore c ould not serve as a hearsay

exception for the use of deposition transcripts in a licensure

discipline proceeding); Martin Marietta Corp. v. Roop , 566 So.

2d 40, 42 (Fla. 1st DCA 1990)(holding transcript was not

admissible under section 90.804(2)(a) where t here was no showing

of unavailability; "A substantial reason must be shown why the

orig inal witness is not available"); Spicer v. Metro. Dade

Cnty. , 458 So. 2d 792, 794 - 795 (Fla. 3d DCA 1984)(holding that

prior testimony did not satisfy the requir ements of section

90.804(2)(a); "The county did proffer to the examiner that its

witness was unavailable because he was in the Federal Witness

Protection Program at an undisclosable location in the United

States. It did not, however, discharge its burden of

establ ishing that it had taken any reasonable steps to procure

the witness's attendance.").

41 . For the reasons detailed above, the deposi tion

transcripts of the joint - venture clients , while admissible,

con stitute hearsay and neither the evidence code nor r u le

1.330(a) supports their use beyond what is authorized by section

120.57(1)(c). While the deposition transcripts can serve to

supplement or explain Respondent's testimony that he did not

physically treat any of the patients at issue, there is an

absence of non - hearsay evidence that the billed - for services in

the Complaint were not provided by anyone at all (e.g., by Dr.

Wagner or so mebody else at the clinic). Accordingly , Petitioner

has failed to meet its burden with respect to Counts One and

Three, whi ch must be dismissed. 5 /

F. Penalty

4 2 . In determining the appropriate punitive action to

recommend in connection with Count Two , it is necessary to

consult the Board of Chiropractic Medicine's disciplinary

guidelines, which impose restrictions and li mitations on the

exercise of the Board's disciplinary authority. See Parrot

Heads, Inc. v. Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231 ,

1233 - 34 (Fla. 5th DCA 1999).

43 . The Board's guidelines for a violat ion of section

456.072(1)(m), enumerated in Fl orida Ad ministrative Code Rule

64B2 - 16.003(1)(s), call for penalty (for a first offense) that

ranges from a six - month term of probation up to a one - year

suspension , followed by two years of probation, as well as a n

administrative fine of $10,000 per count.

44 . Rule 64B2 - 16.003(2) provides that, in applying the

penalty guidelines, the follo wing aggravating and mitigating

circumstances may be taken into account:

(a) The danger to the public;

(b) The number of unrelated and distinct

offenses;

(c) Th e actual damage, physical or

otherwise, to the patient(s);

(d) The length of time since the date of

the last violation(s);

(e) The length of time the licensee has

practiced his or her profession;

(f) Prior discipline imposed upon the

licensee;

(g) The deterrent effect of the penalty

imposed;

(h) The effect o f the penalty upon the

licensee' s livelihood;

(i) Rehabilitation efforts of the licensee

including remorse, restitution, and

corrective actions;

(j) Efforts of the licensee to correct or

s top violations or failure of the licensee

to correct or stop violations;

(k) Related violations against the licensee

in another state, including findings of

guilt or innocence, penalties imposed and

penalties served;

(l) The actual negligence of the li censee

pertaining to any violation;

(m) Any other mitigating or aggravating

circumstances.

4 5 . Notwithstanding Respondent's lack of disciplinary

history and the length of time he h as practiced his profession,

a stern penalty at the upper end of the di sciplinary guidelines

is warranted due to the nature of Respondent's deceptive conduct

and his disturbing lack of good judgment . It is therefore

recommended that Respondent's license to practice chiropractic

medicine be suspended for one year, followed by two year s of

probation (with conditions to be set by the Board), and a fine

of $10,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by th e

Board of Medicine :

1. Dismissi ng Counts One and Three of the Corrected

Amended Administrative Complaint ;

2. Findin g that Responden t violated section 456.072(1)(m) ,

Florida Statutes, as charged in Count Two ;

3. Suspending Respondent's license to practice

chiropractic medic ine for a period of one year;

4. Placing Respondent on probation for a period of two

year s , with conditions deemed appropriate by the Board; and

5 . Imposing a fine of $10,000.

DONE AND ENTERED this 16 th day of March , 20 12 , in

Tallahassee, Leon County, Florida .

S

___________________________________

EDWARD T. BAUER

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 16 th day of March, 2012 .

ENDNOTES

1 / Unless noted otherwise, all statutory references are to the

codification in effect at the time of Respondent's alleged

misconduct.

2 / The collaboration of Respondent and Dr. Wagner yielded

subst antial financial remuneration. Over a four - year period,

reimbursem ent totaling $800,000 from insurance carriers was

deposited into Respondent's SunTrust account, the proceeds of

which were split 50/50 with Dr. Wagner.

3 / See Pet. Ex. 15, pp. 31 - 32; 43 - 44; 50 - 53.

4 / Specifically, Petitioner asserts that Respondent sub mitted,

approved, authorized, and/or knew or should have known of the

submission of claims for reimbursement for treatments that were

not provided to: C.H. on February 13, 2009, February 25, 2009,

March 4, 2009, March 21, 2009, April 4, 2009, April 12, 20 09,

April 25, 2009, May 2, 2009, June 19, 2009, and/or August 8,

2009; L.J. on January 30, 2010, March 13, 2010, and/or March 27;

S.J. on December 31, 2009, January 2, 2010, January 16, 2010,

January 30, 2010, February 13, 2010, February 20, 2010, and/or

M arch 13, 2010; and J.J. on February 2, 2010, February 22, 2010,

and/or April 24, 2010. See Corrected Amended Administrative

Complaint, ¶¶ 70 & 85.

5 / Clear and convincing evidence exists that reimbursement

claims were submitted (of which Respond ent was aware) for

trigger point injections purportedly performed on S.J. on

January 30, 2010, and on L.J. on March 27, 2010. Had the

undersigned been able to fully consider the deposition

transcripts of S.J. and L.J. ÏÏ wherein the witnesses credibly

testi fied that they never received a trigger point injection at

Dr. Wagner's clinic ÏÏ pursuant to Rule 1.330 (or under a hearsay

exception), Petitioner would have met its burden with respect to

Counts One and Three.

COPIES FURNISHED :

Gavin Burgess, Esquire

Alicia E. Adams, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Allan L. Hoffman, Esquire

W. Grey Tesh, Esquire

1610 Southern Boulevard

West Palm Beach, Florida 33406

Nicholas Romanello, General Counsel

Dep artment of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399

Bruce Deterding, Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 07

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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 issu e the Final Order in this case.