16-006924F Haydee Aranda, D.D.S. vs. Department Of Health, Board Of Dentistry Status: Closed DOAH Final Order on Tuesday, May 2, 2017.

Summary: Petitioner was a dentist who successfully defended a DOH administrative complaint and sought fees under 57.105. FO: not proven DOH knew or should have known that DOH's claim of deceptive and untrue representations was not supported by the necessary facts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAYDEE ARANDA, D.D.S.,

Petitioner,

vs. Case No. 16 - 6924F

DEPARTMENT OF HEALTH, BOARD OF

DENTISTRY,

Respondent.

_______________________________/

FINAL ORDER

On February 22, 2017, the final hearing in this case was

held in Tallahassee before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Sean Michael Ellsworth, Esquire

Ellsworth Law Firm , P.A.

420 Lincoln Road, Suite 601

Miami Beach, Florida 33139

For Respondent: Candace A. Rochester, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE S

The issues are whether attorneyÓs fees and costs should be

awarded to the Petitioner (Petitioner or Dr. Aranda) under

section 57.105, Florida Statutes (2016), 1 / and, if so, the amount

of the fees and costs.

PRELIMINARY STATEMENT

The petition for attorneyÓs fees and costs in this case was

filed on November 21, 2016. On January 26, 2017, the petition

was amended to delete a claim under section 57.111, leaving a

claim under section 57.105. A Joint Pre - hearing Stipulation was

filed on February 13.

At the final hearing, counsel for the Petitioner and an

expert witness, Edwin Bayo, Esquire, testified for the Petitioner

and her Exhibits 1 through 7 were received in evidence. Irene

Lake and expert witness, Daniel Russell, Esquire, testified for

the Department of Health , Board of Den t istry (Respondent or DOH),

and RespondentÓs Exhibits 1 through 4 were received in evidence.

The Transcript of the fi nal hearing was filed, and the parties

filed proposed final orders that have been considered.

FINDING S OF FACT

1. In 2010, DOH received a sworn complaint from the Collier

County Health Department (CCHD) alleging essentially: that

Dr. Aranda was mis representing the nature of dental work she was

providing to Medicaid patients to make it appear that she was

prescribing and delivering non - orthodontic, ÐpassiveÑ appliances,

which w as covered by Medicaid, when she actually was prescribing

and delivering o rthodontic, ÐactiveÑ appliances, which w as not

covered by Medicaid, after being warned by her supervisor not to

do so; and that she was delegating irremediable tasks, such as

permanently cementing dental appliances and hand - scaling, to

unqualified dental a ssistants. DOH investigated, and a panel of

the Board of Dentistry found probable cause based on the

investigative report.

2. In May 2015, DOH filed an Amended Administrative

Complaint charging Dr. Aranda as follows: in Count I, with

making decepti ve, untrue, or fraudulent representations in or

related to the practice of dentistry in violation of section

466.028(1)(l), Florida Statutes (2009) 2/ ; and, in Count II, with

delegating irremediable tasks (hand - scaling and permanently

cementing dental appli ances) to a dental assistant not qualified

to perform those tasks, in violation of sections 466.028(1)(z)

and 466.024(1), and Florida Administrative Code Chapter 64B5 - 16. 3/

Dr. Aranda disputed the allegations and asked for a disputed - fact

hearing under se ction 120.57(1), Florida Statutes (2015) 4/ . The

case was referred to DOAH, designated case 15 - 6268PL, and

scheduled for a final hearing on March 2, 2016.

3. On February 11, 2016, Dr. Aranda served (but did not

file) a motion for sanctions pursuant to section 57.105, Florida

Statutes (2015). The motion asserted that DOH knew or should

have known that several paragraphs in the Amended Administrative

Complaint referred to the billing of Medicaid for ÐpassiveÑ space

maintainers and other similar appli ances and related dental

services, and that those allegations were not supported by the

material facts necessary to establish them.

4. The motion for sanctions served by Dr. Aranda in DOAH

case 15 - 6268PL was based on discovery she had obtained thro ugh a

deposition of the CCHDÓs records custodian. The deposition

revealed that the documents DOH had been calling Medicaid billing

records actually were Ðdental treatment plans.Ñ There were other

documents called Ðbill service listsÑ that were the actual bills

sent to Medicaid for payment. The Ðbill service listsÑ reflected

flat fee bills to Medicaid for ÐMedicaid billing encounters.Ñ

The Ðdental treatment plansÑ consisted of patient demographics,

personal information, insurance and billing information, and

services provided. The Ðdental treatment plansÑ contained

references to space maintainers and similar non - orthodontic

appliances that were covered by Medicaid, and there were

references to events labeled Ðbill initiated.Ñ Both the Ðbill

service list sÑ and the Ðdental treatment plansÑ were generated by

the CCHDÓs so - called HMS computer system.

5. The motion for sanctions served by Dr. Aranda in DOAH

case 15 - 6268PL concluded with a warning that it would be filed if

DOH did not withdraw the alle gations in the Amended

Administrative Complaint referring to the billing of Medicaid for

ÐpassiveÑ space maintainers and other similar appliances and

related dental services. DOH did not withdraw the allegations.

6. At the final hearing in DOAH ca se 15 - 6268PL, there was

considerable confusion about the billing process and the various

documents. Eventually, the Ðdental treatment plansÑ were

received in evidence with the understanding that they were not

the actual bills sent to Medicaid for payment. The Ðbill service

listsÑ were not moved in evidence by either party.

7. The billing information in the HMS system was entered by

the CCHDÓs clerical staff from Ðsuper billsÑ that were created by

dental practitioners, including Dr. Aranda, based on their care

and treatment of patients. Besides submitting her Ðsuper bills,Ñ

Dr. Aranda played no part in the generation of HMS billing

information or the actual billing of Medicaid by the CCHD.

8. The Ðsuper billsÑ were not available to be used in the

final hearing because they were discarded shortly after the entry

of the information they contained into the HMS system. No member

of the CCHDÓs clerical staff testified, and there was no evidence

about the RespondentÓs actual entries on her super bills. 5/

Meanwhile, some of the patient records and appliance

prescriptions written by Dr. Aranda for her Medicaid patients

accurately reflected the kinds of orthodontic - type ÐactiveÑ

appliances she was using for her Medicaid patients. Dr. Aranda

testifi ed that she was openly using orthodontic - type appliances

for non - orthodontic purposes for these Medicaid patients.

9. The Recommended Order in DOAH case 15 - 6268PL was entered

on May 24, 2016. It found that DOH did not prove, by clear and

convincing evidence, the charge in the Amended Administrative

Complaint that Dr. Aranda was making deceptive, untrue, or

fraudulent representations in or related to the practice of

dentistry in violation of section 466.028(1)(l), Florida Statutes

(2009). It recommen ded dismissal of the charges. The Final

Order was entered on September 23, 2016; it adopted the

Recommended Order, despite exceptions filed by DOH.

10. On November 21, 2016, the Petitioner filed a petition

for attorneyÓs fees and costs under both se ction 57.111 and

section 57.105. The petition was designated DOAH case 16 - 6924F.

It was amended to drop the claim under section 57.111.

11. It was clear, and DOH knew or should have known within

21 days of service of Dr. ArandaÓs section 57.105 mot ion for

sanctions in case 15 - 6268PL, that the HMS Ðdental treatment

plansÑ were not the actual bills sent to Medicaid for payment.

The HMS Ðbill service listsÑ were the actual bills sent to

Medicaid. However, the services billed to Medicaid via the HMS

Ð bill service listsÑ were the same services described in the HMS

Ðdental treatment plansÑ (even if the Ðbill service listsÑ

themselves did not specify the services). Dr. Aranda did not

prove by a preponderance of the evidence that DOH knew or should

have k nown that the charge in the Amended Administrative

Complaint, that Dr. Aranda was making deceptive, untrue, or

fraudulent representations in or related to the practice of

dentistry in violation of section 466.028(1)(l), Florida Statutes

(2009), was not sup ported by the material facts necessary to

establish it.

CONCLUSIONS OF LAW

12. Under section 57.105(5), Florida Statutes, an

administrative law judge shall award a reasonable attorneyÓs fee

and damages to the prevailing party on the same basis as p rovided

in subsections (1) and (4). Subsection (1)(a) provides for an

award to the prevailing party on any claim or defense at any time

during a proceeding or action in which the losing party or its

attorney knew or should have known that a claim or defen se when

initially presented, or at any time before the final hearing, was

not supported by the material facts necessary to establish the

claim or defense.

13. The Petitioner bases her section 57.105 petition for

sanctions on the allegations in DOHÓs Amended Administrative

Complaint referring to the billing of Medicaid for ÐpassiveÑ

space maintainers and other similar appliances and related dental

services. Those allegations did not constitute the ÐclaimÑ in

DOHÓs Amended Administrative Complaint. DO HÓs claim was that

Dr. Aranda made deceptive, untrue, or fraudulent representations

in or related to the practice of dentistry in violation of

section 466.028(1)(l), Florida Statutes (2009), by

misrepresenting the nature of dental work she was providing to

Medicaid patients to make it appear that she was prescribing and

delivering non - orthodontic, passive appliances, which w as covered

by Medicaid, when she actually was prescribing and delivering

orthodontic, active appliances, which w as not covered by

Medic aid, after being warned by her supervisor not to do so.

Dr. Aranda did not prove that DOH knew or should have known that

its claim was not supported by the material facts necessary to

establish it.

14. Subsection (4) provides a Ðsafe harborÑ for a party who

withdraws an unsupported claim or defense within 21 of service of

a motion for sanctions under section 57.105. The 21 - day safe

harbor is strictly enforced. See Dunkin' Donuts Franchised

Rests., LLC v. 330545 Donuts, Inc. , 27 So. 3d 711, 713 - 1 4 (Fla.

4th DCA 2010); Montgomery v. Larmoyeux , 14 So. 3d 1067, 1072

(Fla. 4th DCA 2009); Anchor Towing, Inc. v. Fla. Dep't of

Transp. , 10 So. 3d 670, 672 (Fla. 3d DCA 2009). Dr. Aranda

cannot now change the focus of her section 57.105 motion for

sanction s from the allegations in DOHÓs Amended Administrative

Complaint referring to the billing of Medicaid for ÐpassiveÑ

space maintainers and other similar appliances and related dental

services, to the Amended Administrative ComplaintÓs actual claim

against h er.

15. Even if the motion for sanctions served by Dr. Aranda

on February 11, 2016, addressed the actual claim in the Amended

Administrative Complaint, Dr. Aranda did not prove that DOH knew

or should have known that the actual claim was not suppor ted by

the material facts necessary to establish it. The actual claim

did not require proof that Medicaid was sent bills that specified

ÐpassiveÑ space maintainers and other similar non - orthodontic

appliances and services.

16. Even if the actual claim w as that Medicaid was sent

fraudulent bills for ÐpassiveÑ space maintainers and other

similar non - orthodontic appliances and services, Dr. Aranda did

not prove that DOH knew or should have known that such a claim

would not have been supported by the materia l facts necessary to

establish it. The ÐencountersÑ billed via the Ðbill service

listsÑ were for the services identified in the Ðdental treatment

plans,Ñ which included references to space maintainers and

similar non - orthodontic appliances that were cover ed by Medicaid.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, the petition for attorneyÓs fees and costs under section

57.105 is dismissed.

DONE AND ORDERED this 2nd day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

F iled with the Clerk of the

Division of Administrative Hearings

this 2nd day of May , 2017 .

ENDNOTE S

1/ At the time of the filing of the petition, the 2016

codification of the Florida Statutes was in effect.

2/ The statutes alleged to have been violate d were in the 2009

Florida Statutes.

3/ The rules alleged to have been violated were those in effect

at the times of the alleged violations in 2009 and 2010.

4/ The 2015 version of the Administrative Procedure Act was in

effect at the time of the reque st for a hearing.

5/ See Recommended Order, DOAH case 15 - 6268PL, ¶¶ 17 - 19.

COPIES FURNISHED:

Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

420 Lincoln Road , Suite 601

Miami Beach, Florida 33139

(eServed)

Bridget Kelly McDonnell, Esquire

D epartment of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Candace A. Rochester, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(e Served)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Jennifer Wenhold, Executive Director

Board of Den t istry

Department of Health

4052 Bald Cypress Way , Bin C - 08

Tallah assee, Florida 32399 - 3258

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Ru les of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the n otice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.