18-006323PL Department Of Health, Board Of Optometry vs. Albert C. Evans, O.D. Status: Closed Recommended Order on Wednesday, June 12, 2019.

Summary: Respondent guilty of violating ? 463.016(1)(f) and (1)(j), by falsely advertising free eye exam for glasses and by submitting claims to a third-party payor for services not provided to a patient. Recommend $6,000 fine and 12-month probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

OPTOMETRY,

Petitioner,

vs. Case No. 18 - 6323PL

ALBERT C. EVANS, O.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrativ e Law Judge Elizabeth W. McArthur of the

Division of Administrative Hearings (DOAH) conducted the

disputed - fact hearing on April 4, 2019 , by video teleconference

at sites in Fort Myers and Tallahassee, Florida.

APPEARANCES

For Petitioner: Kimberly Lauren Marshall, Esquire

Amanda M. Godbey, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respond ent: William Gus Belcher, Esquire

Belcher & Epstein, P.A.

Post Office Drawer 2199

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent used

fraudulent, false, misleading, or deceptive advertising and

whether Respondent willfully submitted a claim to a third - party

payor for ser vices not rendered to a patient; and, if so, what is

the appropriate sanction.

PRELIMINARY STATEMENT

On August 2, 2018, the Department o f Health (Petitioner or

Department) filed the First Amended Administrative Complaint

(Administrative Complaint) before the Board of Optometry (Board) ,

against Respondent, Albert C. Evans, O.D. (Respondent or

Dr. Evans). Dr. Evans disputed material facts alleged in the

complaint and requested an administrative hearing. The case was

forwarded to DOAH on November 30, 2018, for assignment of an

Administrative Law Judge to conduct the requested hearing.

Respondent filed two unopposed motions, the first to de lay

setting the hearing , and the second to continue the hearing

initial ly set for March 4 and 5, 2019. Both motions were granted

and the hearing was ultimately set for April 4 and 5, 2019. Only

one day proved to be necessary for the hearing .

Prior to th e hearing, the parties filed a Joint Pre - hearing

Stipulation, in which they agreed to a number of facts that would

not require proof at hearing , and they stipulated to several

statements of law . The partiesÓ stipulations are incorporated

below to the exte nt relevant.

At the he aring, Petitioner presented the live testimony of

N.P. , a patient. Petitioner Ós Exhibits 1 through 4 were

admitted . PetitionerÓs Exhibit 4 is the transcript of the

deposition testimony of Thomas Kline , O.D . , who testified for

Petit ioner as an expert in optometry.

Respondent testified on his own behalf, and also presented

the testimony of Hope Fior , Joseph Acuna , and Todd Dutton .

RespondentÓs Exhibits 1 and 2 were admitted . Exhibit 2 is the

transcript of the deposition testimony o f Angel Dickinson , who

testified for Respondent as an expert in billing vision insurance

plans . The DepartmentÓs motion in limine, arguing for exclusion

of the deposition testimony on grounds that the witness lacked

expertise and did not satisfy the Frye test, was denied. The

Frye test was deemed inapplicable in the context asserted. 1/ As

to the general qualifications of the proposed expert -- developing

self - proclaimed expertise in billing vision insurance plans

through 18 years of Ðtrial and errorÑ exper ience -- although the

undersigned acknowledged they were marginal , the objections would

be considered in determining the weight, if any, to be given to

the deponentÓs opinions. T he deponent was accepted as an expert

to the extent of her experience . § 90.70 2, Fla. Stat.

At the conclusion of the hearing, the parties were informed

that the deadline for filing proposed recommended orders (PROs)

would be ten days after the filing of the hearing transcript at

DOAH. The one - volume Transcript was filed April 25, 2019 .

Respondent subsequently filed a motion to extend the PRO

deadline, which was granted. 2 / The parties timely filed their

PROs by the extended deadline . Respondent also filed a separate

Closing Argument. The partiesÓ post - hearing submissio ns have

been given due consideration in the preparation of this

Recommended Order.

Unles s otherwise noted , citations to statutes and rules are

to the versions in effect at the time of the alleged violations.

FINDING S OF FACT

1. Petitioner is the state ag ency charged with regulating

the practice of optometry pursuant to section 20.43, Florida

Statutes, and chapters 456 and 463, Florida Statutes.

2 . At all times material to this proceeding, Respondent was

a licensed optometrist in the State of Florida, ha ving been

issued license number OPC 1738.

3. Respondent is the owner of One Price Optical in Cape

C oral, Florida, where he practices optometry and sells

eyeglasses. He opened his business in 2000 .

4. For the first 13 years of his business , Respondent

ad vertised in an area newspaper, offering a free eye exam for

glasses. The advertisement that he published in newspapers until

sometime in 2013 is in evidence . At the top of the ad, the words

ÐFREE EYE EXAMÑ appeared in large, white, all capital letters,

a gainst a solid black background. Immediately below, also on the

black background in smaller white, all capital letters, was the

following:

FOR YOU ¤ FOR GLASSES ¤ PATIENTS 7 YEARS & UP

Below the prominent white - on - black section, the ad contained

information about the business in black print against a white

background. The name of the business was the only print as large

as the ÐFREE EYE EXAMÑ message at the top of the ad . L ooking at

the ad as a whole, the eyes are drawn to two messages: ÐFREE E YE

EXAMÑ and ÐONE PRICE OPTICAL.Ñ The smaller black print on the

white background identified Respondent as the optometrist,

provided the address, telephone number, and hours, and listed

names of third - party payors, including Medicare, vision plans,

and in surance plans . The bottom of the ad contained one more

very small black banner with tiny white print, setting forth a

disclaimer required by statute and Board rule, regarding a

patientÓs right to a refund.

5. N.P. saw the newspaper advertisement, and on October 4,

2012, he went to One Price Optical to obtain his free eye exam

for glasses. N.P. already had glasses, but wanted to get an

updated prescription . N.P. brought the ad with him. N.P. was

greeted by staff member Hope Fior who asked what brought him to

One Price Optical that day. N.P told her that he wanted the free

eye exam.

6. Patients are asked to complete a two - sided patient

information form provided to them on a clipboard. Ms. Fior does

not recall whether she was the staff person who gave N.P. the

clipboard paperwork to fill out, but her initials, ÐHF,Ñ appear

at the top of the first page in the blank for Ðstaff,Ñ suggesting

that it was her.

7. Just as Ms. Fior did not specifically recall that she

was the ÐstaffÑ initialing N.P.Ós paperw ork -- after all, it has

been nearly seven years since the encounter -- N.P. also did not

recall filling out paperwork , although he remembers that he spoke

with a female staff member (and Ms. Fior was the only female

staff member) . Nonetheless, N.P. was able to identif y his

handwriting on the form , such as his name , address , and telephone

number on the first page ( the front of the two - sided page).

8. At the bottom of the first page, the form instructs

Medicare patients that they ÐMUST READ & SIGN THE OTHER S IDE.Ñ

(Pet. Ex. 2, handwritten p . 29, lower left corner).

9. The second page ( the other side of the two - sided form)

was referred to by Respondent as the Ðhow are you going to payÑ

page, requiring patients to select one of several options ,

initial and/or sign the selection, and sign at the bottom of the

page . One section is designated for ÐIf You Have Medicare.Ñ

This section states t hat if a patient has Medicare, ÐWe will bill

Medicare for your eye exam according to the Medicare Laws [CPT

code] 92004: New Patient, Comprehensive [or CPT code] 92014:

Previous Patient, comprehensive. Please provide the staff with

your: 1) Medicare card; 2) Medicare Advantage Card; 3) Any

supplemental card; 4) Any other non - governmental health insurance

card.Ñ Below the se provisions, the Medicare section concludes

with the following : ÐIf you do not have all of your insurance

cards today, we will not be able to exam [sic] you today and will

reschedule you.Ñ (Pet. Ex. 2, p . 30).

10. N.P.Ós completed Ðhow are you going to payÑ page has a

handwritten ÐXÑ in the box selecting the ÐIf You Have MedicareÑ

sectio n, with N.P.Ós initials next to the ÐXÑ (because he was a

Medicare patient, and, therefore, required to complete this

section as written) . A check mark also appears next to

ÐMedicare Advantage CardÑ in the portion requiring the patient to

provide staff with insurance cards.

11. Above the ÐIf You Have MedicareÑ section, a separate

section is provided for ÐFree Exam For Glasses , Ñ with the

following description: ÐTh e free eye exam for glasses is free.

You do not have to b uy anything at all. The free exam does not

come with any prescription . If you wish, you may pay an exam fee

and get a prescription for eye Glasses to take with you.Ñ

(emphasis added). At the bot tom of this section, two options are

provided, with spaces for the patientÓs signature. One option

is: ÐI would like the free exam with no RXÑ; the other option

is: ÐI would like the $48 exam and get my RX.Ñ

12. On N.P.Ós completed form, the ÐFree E xam For GlassesÑ

section has no ÐXÑ in the selection box, and neither of the two

options was signed by N.P. However, there are hand - drawn circles

around the $48 exam option and the signature space to select that

option, suggesting that this option was cal led to N.P.Ós

attention. There were no circles around the Ðfree exam with no

RXÑ option -- the only option that was truly Ðfree .Ñ That option

would not have met N.P. Ós objective in coming into One Price

Optical, which was to get an updated eyeglasses presc ription .

1 3 . Another section on the second page is called ÐVision

Plans.Ñ This section provides: ÐWe will follow all the

procedures, rules, and regulations according to the terms of your

plan. The free exam for glasses above can not [sic] be combined

with any part of your vision plan. You may not mix and match

different coupons, promotions, store discounts, etc. with your

Vision Plan.Ñ On N.P.Ós completed form, there i s no ÐXÑ in the

box provi ded to select this section, no initials by N.P., and no

ha nd - drawn circ les to indicate that this provision was called to

N.P.Ós attention as potentially applicable.

1 4 . N.P. signed the bottom of the Ðhow are you going to

payÑ page (with only the Medicare/Medicare A dvantage section

initialed) , next to the han dwritten date, October 4, 2012.

15 . According to Respondent, his staff would have carefully

walked N.P. through the examination and payment options when he

came in and asked for the advertised free eye exam. This would

have included asking Respondent wh ether he was covered by

Medicare, whether he had ÐMedicare supplementÑ insurance

coverage, and whether he had any other Ðvision planÑ coverage.

If so, he would have been asked to produce his insurance cards

and the staff would have investigated what type of coverage was

available for eye examinations.

1 6 . According to Respondent, N.P. made the voluntary

election to undergo a c omprehensive eye examination , which would

be paid for under his Medicare A dvantage insurance plan, instead

of t he Ðfree eye exam.Ñ Respondent acknowledged that a

comprehensive eye examination must be completed on a patient in

order to write a prescription for eyeglasses. One required

component of a comprehensive eye examination is an internal

examination of the eye s , to the back of the eyes (examination of

the fundus). See Fla. Admin. Code R. 64B13 - 3.007.

1 7 . Respondent admitted that the so - called free eye exam

for glasses offered by the advertisement w as actually only a

ÐscreeningÑ or a ÐconsultationÑ with a patient to determin e if

the patient might need eyeglasses. Respondent admitted that t he

Ðfree eye examÑ ( screening/ consultation) would not be sufficient

to enable Respondent to write a prescription for glasses. The

advertisement does not mention this. What is offered for ÐfreeÑ

is called an Ðeye exam for glasses,Ñ not a screening that would

be insufficient for Respondent to write a prescription for

glasses.

18. Staff person Hope Fior acknowledged that the

advertisement caused confusion, not only for N.P., but for

others . She blamed their confusion on the failure to read the

fine print that she believed was in the ad, which she described

as making clear that the offer of a free eye exam for glasses

could not be used in combination with vision plans . That

language did no t appear in the advertisement, in fine print or

otherwise.

1 9 . RespondentÓs claim that N.P. made the voluntary

election to forego the advertised free eye examination i s

contrary to the credible evidence. What N.P. wanted was a Ðfree

eye exam for glasse s,Ñ as advertised. N.P. was not offered a

free eye exam that would have allowed him to obtain an updated

prescription for his glasses .

20 . Respondent performed an eye examination on N.P.

However, Respon dent did not complete all steps required for a

comp rehensive eye examination. In particular, as the parties

stipulated, Respondent did not perform a fundus examination on

N.P.

2 1 . A comprehensive eye examination, including fundus

examination, can be done with or without dilation. Examination

of the fun dus, the interior examination to the back of the eyes,

is generally done after dilation drops are administered. T he

fundus examination can be done by other means if the patient does

not want dilation, but generally dilation is preferable . In

fact, Respon dent testified that he ÐalwaysÑ administers dilation

drops, unless a particular patient asks him not to, in which case

he makes them sign a form declining dilation.

22 . R espondent administered dilation drops to N.P. There

is no persuasive evidence esta blishing that N.P. was resistant to

receiving dilation drops , but there is also no persuasive

evidence that N.P. was offered a choice or told that he could

decline dilation . More importantly, there is no persuasive

credible evidence that N.P. was i nformed before the drops were

administered that he would be charged $39.00 as a dilation fee. 3/

Instead, N.P. credibly testified that he was not told he would

have to pay any fee until later .

2 3 . After Respondent put dilation drops in N.P.Ós eyes, he

directed N .P. to go down the hall to the reception/ store area

where eyeglasses are displayed for purchase, and was told he

could wait there and look at glass frames while the drops took

effect in 15 to 20 minutes .

2 4 . While N.P. was in the optical area, staff membe r Todd

Dutton spoke with him about whether he might want to purchase

glasses. The conversation about glasses did not progress,

however, because Mr. Dutton also told N.P. that there was a

$39.00 charge for dilation , and asked him to pay .

2 5 . N.P. got ve ry upset with this new information, because

up until that point, he was still under the impression that he

was getting a free eye exam , as advertised.

2 6 . When Mr. Dutton did not retreat from the position that

N.P. would have to pay $39.00 for the dilati o n drops he had

received, N.P. walked out, rather than returning to the

examination room for Respondent to complete the comprehensive

examination. He did not ever return.

2 7 . Inexplicably, Respondent said he was not aware until

much later on October 4, 20 12, that N.P. walked out. Respondent

did not come back for N.P. , or send a staff person to bring N.P.

back to the examination room , after the short period of time

needed for the dilation drops to have taken effect . No

explanation was provided for this la pse.

2 8 . It was not until an hour or two later , when Respondent

was going over the patient paperwork for the day, that he

realized that he never retrieved N.P. to complete N.P.Ós

comprehensive examination by performing the fundus examination.

Respondent completed the patient record form as best he could, as

the form he had created did not have an option to indicate an

incomplete comprehensive examination , n or did his form provide

the option of recording t hat a n intermediate examination was done

( which wou ld not require a fundus examination, but would not be

sufficient for writing a prescription for eyeglasses ) .

Respondent selected the option called ÐNo DilationÑ and circled

ÐYesÑ to indicate that dilation was declined. Then he attempted

to clarify in han dwriting that there was no internal examination

because the patient left the office.

29 . Despite not performing a fundus examination , Respondent

produced a prescription for N.P. that he said he prepared after

the incomplete examination . N.P. testified th at he does not

recall whether he asked for a prescription before he left the

office, but he is sure that no prescription was offered to him.

Todd Dutton confirmed that there was no discussion with N.P.

about a prescription. The prescription presumably co uld not have

been finalized and actually issued to N.P. before the

comprehensive examination was completed, so whatever Respondent

prepared must be viewed , at best, as preliminary.

3 0 . RespondentÓs advertisement that offered a Ðfree eye

exam . . . for gla ssesÑ was misleading and deceptive. A reader

would have been led to believe, just as N.P. did believe, that

there would be no charge to anyone -- the patient or the patientÓs

insurer -- for an eye exam that would be sufficient to allow

Respondent to prescribe glasses. N.P. was misled and deceived by

the advertisement , as were others who were confused by the adÓs

offer of a free eye exam for glasses .

31. Respondent testified that he discontinued the

advertisement, after 13 years of publishing it in the newspa per,

sometime the next year (2013) when it came up for renewal. He

said that he discontinued it, in part, in response to N.P.Ós

complaint to the Department , but also because he did not believe

the ad was worth the cost of publication. Respondent did not say

that he discontinued the advertisement out of r emorse for falsely

advertis ing free eye exams for glasses. He was steadfast in

disputing the charge that his advertisement was in any way false,

misleading, or deceptive.

3 2 . After N.P.Ós incomplete ex amination, Respondent

proceeded to bill N.P.Ós vision insurance plan . He submitted a

claim under CPT code 92004 in the amount of $139.00 , and a claim

under CPT code 92019 in the amount of $39.00.

33. Current Procedural Terminology (CPT) codes are used b y

optometrists to define the services provided to patients in

submitting claims to third - party payors for payment. Each CPT

code has a definition set forth in a book maintained and

distributed by the American Medical Association. The CPT code

book has be en officially adopted by the D e partment of Health and

Human Services as the standard medical data code set , which must

be used by Ð covered entities Ñ under the Health Insurance

Portability and Accountability Act, for physician services and

other health care services, including vision services. See

45 C.F.R. §§ 162.1000 and 162.1002(a)(5)(vi) and (b)(1).

34. CPT codes have uniform objective definitions that do

not change based upon the type of practitioner or setting in

which they are used .

3 5 . CPT c ode 92004 is defined as a comprehensive

ophthalmological examination, including fundus examination .

36. CPT code 92019 is defined as a n ophthalmological

examination and evaluation under general anesthesia.

3 7 . Respondent admits that he did not complete the

comprehensive eye examination of N.P. The parties stipulated

that Respondent did not perform the fundus examination.

38. Respondent stated that by submitting a claim to N.P.Ós

vision insurance plan using CPT code 92004, he intended to bill

the vision pla n for performing a dilated fundus examination on

N.P. He admits to having willfully submitted a claim to a third -

party payor for services not provided to a patient.

39. Respondent contends he should be excused for submitting

the claim because the reason Respondent did not perform the

dilated fundus examination on N.P. is that N.P. walked out.

While that explains why Respondent did not provide the service to

N.P., it does not justify RespondentÓs claim seeking insurance

reimbursement for a service he admi ttedly did not provide.

40 . Respondent testified that he was left in a quandary as

to how to handle the billing , as t here was no option for billing

the vision plan for three - quarters or some other fraction of CPT

c ode 92004.

41. PetitionerÓs expert , Dr . Kline, offered a viable

alternative t hat would have solve d RespondentÓs quandary without

submitting a claim for a service that was not provided .

Dr. Kline testified that Respondent could have submitted a claim

under CPT code 92002, for an intermediate eye examination. CPT

code 92002 is appropriate to use by an optometrist wh o has

performed a less extensive examination than a comprehensive

examination . In particular, t he fundus does not have to be

examined in an intermediate exam. While an intermediat e eye

examination w as insufficient to meet N.P.Ós objective of securing

a legal updated prescription (which requires a comprehensive eye

examination) , the unrebutted evidence in this record shows that

submitting a claim using CPT code 92002 would have been accurate

in identif ying the service actually provided to N.P.

42 . Dr. Kline opined that submitting no claim to N.P.Ós

third - party payor was also an option that would have solved

RespondentÓs quandary, and in his opinion, would have been the

most reason able course of action under the circumstances . It

would have been what he would have done. In light of

RespondentÓs advertisement for a Ðfree eye exam,Ñ Dr. KlineÓs

opinion is credited: the most appropriate option would have been

to not submit a claim t o N.P.Ós third - party payor, thereby

providing a Ðfree,Ñ albeit incomplete exam.

43 . Respondent defended his claim under CPT code 92004 fo r

a comprehensive eye exam , under the guise of it being acceptable

practice to perform a comprehensive eye examinati on in more than

one sitting. According to Respondent, as long as the examination

is going to be completed, it is acceptable to bill the third -

party payor for the entire examination after only part of it has

been done. This may be true when (as Respondent was told in a

seminar), the completion of the exam is sched uled for the next

day , within the next few days, or perhaps as much as a week

later. For example, on occasion a patient might request to not

be dilated on the day the examination i s initiated and mostly

completed, and arrangements are made for the patient to return

for the dilation and fundus examination on a day when dilated

eyes do not pres ent a problem for the patient.

4 4 . However, that is not what occurred with N.P. N.P.

never contacted Resp ondent to complete the examination, nor did

Respondent ever attempt to contact N.P. to schedule his return

for the fundus examination . It was obvious that N.P never

intended to return. Indeed, Respondent admitted that he would

not have attempted t o c onta ct N.P. because of N.P.Ós anger when

he left One Price Optical.

4 5 . RespondentÓs justification for billing the vision

insurance plan under the CPT code for a comprehensive examination

could only be accepted if, at the time Re spondent submitted the

bill, a rrangements had already been set for the examination to be

completed, either because N.P. had scheduled a return visit

before leaving, or because Respondent had called the patient and

succeeded , before submitting the bill, in scheduling N.P.Ós

return visit to complete the exam.

4 6 . Under the circumstances here, at the time Respondent

submitted the claim to N.P.Ós vision plan, he knew that he had

not completed a comprehensive eye examination of N.P., and he

knew that no arrangements had been made to comp lete the

examination. A fundus examination is a service that is a

required component of CPT code 92004 . Respondent willfully

submitted a claim to a third - party payor for a service that was

admittedly not provided to N.P .

4 7 . Respondent also admitted tha t he did not provide an eye

examination to N.P. while under general anesthesia , which is the

service defined by CPT code 92019 , but he submitted a claim to

the third - party payor using that CPT code . Respondent contended

that he intended to use that CPT co de to submit a claim for

dilation charges. Respondent attempted to explain that some

vision plans do not strictly follow the CPT c ode definitions, and

some of them use CPT code 92019 to mean dilation. He testified

that he just does his best using their c laim forms and the

descriptions they use for the CPT c ode s .

4 8 . Respondent did offer evidence that a different vision

plan, not the one administering N.P.Ós Medicare A dvantage planÓs

vision benefits, described C PT code 92019 as ÐdilationÑ in its

online cl aim form . If a claim submitted to that other vision

plan were at issue here, RespondentÓs explanation might be

accepted as evidence that Respondent did not willfully submit a

claim for a service not provided .

49. However, the evidence does not support Re spondentÓs

explanation in this instance. In the ÐExplanation of PaymentÑ

printed from N.P.Ós vision insurance planÓs website, CPT c ode

9 2019 was specifically described ( in the available space ) as

Ð ophthalmological examination and evaluation under general an Ñ

and not as dilation. (Pet. Ex. 2, p. 35) (emphasis added) .

50 . Respondent said that he does all of the billing and

coding for One Price Optical , and that he has tried to find out

what is required . His claim that so - called Ðvision plansÑ are

not consi dered insurance and do not strictly follow the CPT code

definitions rings hollow, at least as applied to the facts here,

where everything in N.P.Ós patient records speaks to Medicare

A dvantage health care insurance . The Ðhow are you going to payÑ

form com pleted by N.P. directed him, as a Medicare patient with

Medicare A dvantage insurance, to authorize billing under that

coverage, which RespondentÓs form assured would be done in

compliance with Medicare laws and rules. The claim processing

paperwork calls N.P.Ó s plan Ð Universal Health Care Î Medicare ,Ñ

and the planÓs explanation of denied payment for the claim under

CPT c ode 92019 used the code definition from the CPT c ode book . 4/

51. Respondent testified that he always very carefully

checks to see how a p articular vision plan uses and defines the

CPT codes, and that he submits his claims using the CPT codes as

defined by the particular plan. He therefore admitted that he

willfully submitted a claim to N.P.Ós vision plan under CPT code

92019 , defined as Ðo phthalmological examination and evaluation

under general an[esth e sia] . Ñ

52 . T he undersigned is not persuaded by RespondentÓs

assertion that in billing under CPT Code 92019, he should be

found to have not willfully submit ted a claim for a service not

rende red because he knew that the claim would not be paid. The

fact remains that Respondent knowingly, intentionally, and

willfully submitted a claim to N.P.Ós vision insurance plan,

coded under CPT c ode 92019, claiming to hav e performed an eye

exam under gene ral ane s thesia on N.P. on October 4, 2012 , as

explained in the Explanation of Payment . (Pet. Ex. 2, p. 35).

Whether Respondent intended to get paid or expected to get paid

is not germane to the question of whether he willfully submitted

the claim for a s ervice not provided.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to sections 120.569 and 120.57(1),

Fl orida Statutes (2018).

54 . A proceedin g, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature. State

ex rel. Vining v. Fla. Real Estate CommÓn , 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose such discipline, Petitioner

must prove the all egations in the Administrative Complaint by

clear and convincing evidence. DepÓt of Banking & Fin., Div. of

Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996) ( citing Ferris v. Turlington , 510 So. 2d 292 -

294 - 95 (Fla. 1987)); Nair v. DepÓt of Bus . & ProfÓl Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

55 . As stated by the Supreme Court of Florida,

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witne sses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts at 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 hesit ancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

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

of proof may be met where the evidence is in conflict; h owever,

Ðit seems to preclude evidence that is ambiguous.Ñ Westinghouse

Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991).

5 6 . Penal statutes and rules authorizing discipline against

a professional license must be strictly construed , with any

ambiguity resolved in favor of the licensee. Elmariah v. DepÓt

of ProfÓl Reg., Bd. of Med. , 574 So. 2d 164, 165 (Fla. 1st DCA

1990) .

5 7 . As a matter of due process, as well as procedural

statutory and rule requirements, an administrative compla int must

provide Ð reasonable notice to the licensee of the facts and

conduct which warrant Ñ disciplinary action . See § 120.60(5),

Fla. Stat.; Cottrill v. DepÓt of Ins. , 685 So. 2d 13 7 1, 13 7 2

(Fla. 1st DCA 1996) .

5 8 . Count I charges Respondent with a vio lation of section

463.016(1)(f), Florida Statutes (2012), providing that the

following is grounds for disciplinary action: Ð Advertising goods

or services in a manner which is fraudulent, false, deceptive, or

misleading in form or content. Ñ

59 . The Admi nistrative Complaint alleges that Respondent

violated section 463.016(1)(f) Ðby publishing an advertisement

for a free eye exam for glasses when he required a $39.00 fee if

the patient wanted to obtain a prescription.Ñ 5/

6 0 . The credible evidence, as f ound above, was clear and

convincing that RespondentÓs advertisement for a free eye exam

for glasses violated the charged statute. It was fraudulent,

false, deceptive, and misleading . Respondent admitted as much

when he conceded that, contrary to the adÓ s representation, no

Ðeye examÑ was provided for free; the only service he provided

for free was a limited ÐscreeningÑ or a ÐconsultationÑ to see if

further examination might be necessary .

6 1 . Under the BoardÓs rule 64B13 - 3.007 (as amended through

2008) , the ÐfreeÑ service that Respondent would provide pursuant

to the advertisement is inadequate for an eyeglass prescription;

a comprehensive eye examination, which must include an internal

examination, is required. In fact, the same rule recognizes a

more limited service , called a Ðscreening , Ñ might be performed in

public service settings or for governmental agencies, but only if

Ðeach recipient of such screeningÑ is informed in writing of the

limitations of the screening, that the screening is not a

substi tute for a comprehensive eye examination, and that Ðthe

screening will not result in a prescription for visual

correction.Ñ Fla. Admin. Code R. 64B13 - 3.007(6)(c) .

6 2 . The evidence was clear and convincing that if a patient

wanted an eye examination that would be adequate to allow

Respondent to issue a prescription for eyeglasses, th at

examination would not be free. Respondent admitted this . Rather

than a Ðfree eye exam for glasses,Ñ Respondent charged fees to be

paid by the patient and/or the patientÓs vision insurance

coverage (which is, in turn, paid for by the patient) .

6 3 . The Administrative Complaint plainly gave Respondent

reasonable notice of the facts and conduct warranting this

charge. That the complaint referred to the $39.00 fee charged to

N.P. without also referring to the other ways in which Respondent

charged fees to patient s and/ or third - party payor s for eye

examination s yielding eyeglass prescriptions does not detract

from the reasonableness of the notice of the facts and conduct

war ranting this charge. An administrative complaint is required

to provide ÐreasonableÑ notice; it is not required to spell out

each and every variant detail . See, e.g. , Omulepu v. DepÓt of

Health, Bd. of Med. , 249 So. 3d 1278 , 1281 (Fla. 1st DCA 20 18)

(rej ecting doctorÓs c hallenge of final order due to alleged

disparities between complaint allegations and evidence at

hearing, finding that the proof at hearing was ÐconsistentÑ with

the allegations, which provided ÐreasonableÑ notice of the facts

and conduct on which the charges were predicated ) . As in

Omulepu , all of the variant details , which were consistent with

the allegations, were fully fleshed out and proven by clear and

convincing evidence in the record developed at hearing.

64 . Count II charges Res pondent with a violat ion of section

463.016(1)( j), which provides that the following is grounds for

disciplinary action: ÐWillfully submitting to any third - party

payor a claim for services which were not provided to a patient.Ñ

65. Respondent, by his own admission, intentionally

submitted a claim to N.P.Ós vision plan for a comprehensive eye

exam using CPT code 92004 . He intended to bill the vision plan

for a dilated fundus examination, as a required part of the

comprehensive examination. Yet he knew he did not provide that

service.

66. Respondent also intentionally submitted a claim to

N.P.Ós vision plan using CPT code 92019, which N.P.Ós vision plan

defined as an ophthalmological examination and evaluation under

general anesthesia , which is the C PT code manualÓs definition.

There is no question that Respondent submitted this claim, but

did not provide the service defined by CPT code 92019.

67. The evidence was clear and convincing that in both

instances, Respondent willfully submitted a claim t o a third -

party payor for services not provided to N.P. Either instance is

sufficient to support the charged violation of section

463.016(1)(j).

68. Florida Administrative Code Chapter 64B13 - 15 contains

the rules to consider regarding the appropriate pe nalty. Rule

64B13 - 15 .005 addresses whether violations are to be considered

ÐmajorÑ or ÐminorÑ administrative violations. A separate rule

makes the same distinction among patient care violations; it is

noted that here, th e two statutory violations do not involve

patient care. RespondentÓs violation of section 463.016(1)(f) is

designated a major administrative v iolation . A violation of

section 463.016(1)(j) is not specifically designated . R ule

64B13 - 15.00 5 (3) provides that when a violation is not classif ied

as major or minor, the Board will apply the penalty guideline

applicable to a listed offense that is most comparable to the

charged offense. Here, the offense charged is most similar to

section 463.016(1)(e) (making or filing a report or record which

the licensee knows to be false), which is classified as a major

administrative violation . Accordingly, RespondentÓs violation of

section 463.016(1)(j) is also treated as a major administrative

violation.

69. Rule 64B13 - 15.003( 2 ) prescribes the penalty g uidelines

for major administrative violations. The recommended penalty

range for a first - time major administrative violation is an

Ð administrative fine of not less than $1,000.00 nor more than

$4,000.00 per count or offense and, if appropriate, a period o f

probation or suspension of not less than 6 months nor longer than

12 months. Ñ

70. Consideration of the mitigating and aggravating

circumstances pursuant to rule 64B13 - 1 5.007 do not support a

recommendation to deviate from the normal penalty guideline

r ange. That these are first - time offenses is already considered

in the BoardÓs categorization scheme, as is the categorization of

the violations as ÐadministrativeÑ in nature as opposed to

Ðpatient careÑ violations. RespondentÓs advertisement ran for

13 y ears, and although N.P. was the first patient to lodge a

formal complaint, he was not the first patient confused by the

false promise of a free eye exam for glasses, or the first

patient baited into switching to vision insurance coverage.

71. For Resp ondentÓs two counts of first - time major

administrative violations, a fine of $6, 000.00 is appropriate . 6/

In addition, 12 - month probation ary period is appropriate, with

such terms and conditions governing the probation as the Board

deems appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Optometry, issue a final order finding Respondent guilty of

violating section 463.016(1)(f) and (1)(j), Florida Statute s

(2012) ; and, as discipline, imposing a fine of $ 6 ,000.00 and

issuing a 12 - month probationary period on such terms and

conditions as the Board deems appropriate.

DONE AND ENTERED this 12th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

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 12th day of June , 2019 .

ENDNOTE S

1/ After the final hearing, in In Re Amendments to the Florida

Evidence Code , No. SC19 - 107, 219 Fla. LEXIS 818, 44 Fla. L.

Weekly S170 (Fla. May 23, 2019), t he Florida Supreme Court

receded from its prior refusal to adopt the LegislatureÓs

amendment of the Florida E vidence C ode to codify the standard

established by Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509

U.S. 579 (1993 ) ( Daubert standard ) , instead of the standard

established by Frye v. United States , 293 F. 1013, 1014 (D.C.

Cir. 1923) ( Frye standard ). The Daubert standard would generally

require a trial judge to act as gatekeeper by determining whether

the scientific tests, theories, and methodolog ies underlying

proposed expert testimony are scientifically reliable before the

expert is permitted to test ify. The Frye standard was more

limiting, applying only to new or novel scientific te chniques,

which were to be assessed for general acceptance befo re they

could be introduced in evidence and used as the basis for expert

testimony. The undersigned did not exclude RespondentÓs expertÓs

testimony based on a failure to meet the then - applicable Frye

standard, as argued in the DepartmentÓs motion in limin e. The

RespondentÓs expert gave fairly narrow testimony , with little by

way of expert opinion . Instead, her testimony simply recounted

her experience coding eye examinations and submitting claims to

vision insurance plans. Based on her experience, she o ffered a

very limited opinion about the propriety of one CPT code (92004)

used by Respondent in submitting a claim to N.P.Ós vision

insurance plan. While her opinion was inconsistent with her

testimony regarding what services she understood were provided

and what should have been provided for the billing code used, the

opinion w ould not have been rendered inadmissible by application

of the Daubert standard. S he also attempted to offer an opinion

about a second CPT code (92019) used by Respondent, but her

testimony made clear that any opinion she could offer on that

subject was outside the scope of her experience - based expertise .

This opinion, if tested under the Daubert standard, would have

been excluded, as her explanation for having ÐresearchedÑ the

cod e solely for purposes of this hearing was wholly inadequate to

show a scientific ally reliable mode of research. As it stands,

even without application of Daubert , her opinion purporting to

legitimize use of a CPT code when she admitted that she had never

heard of or used that code in her 18 years of experience, cannot

be given weight to support RespondentÓs position.

2 / By agreeing to an extended deadline for post - hearing

submissions beyond ten days after the filing of the transcript,

the parties waived the 30 - day time period for filing the

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

3/ In making this finding, the undersigned did not overlook the

testimony of Joseph Acuna, who was one of the staff members

working at One Price Optical in 2 012 . Mr. AcunaÓs testimony was

not credible. He claimed to recall being the one who went over

the patient paperwork with N.P. on the clipboard, but he is the

not the staff person who initialed that paperwork. (Pet. Ex. 2,

p. 29 - 30). He also testified t hat upon being provided N.P.Ós

insurance cards , Respondent looked up the benefits online and

provided the benefits summary in N.P.Ós patient file . (Pet.

Ex. 2, p. 31 - 32 ) . Although Mr. AcunaÓs testimony was less than

clear or consistent regar ding what he actually remembers doing

with N.P. versus what he or some other staff member generally

did , Mr. Acuna seemed to testify that he reviewed with N.P. the

benefits summary pages printed out for N.P. Ós plan, ÐUniversal -

FL - Medicare HMO 001 In Network , Ñ before N. P.Ós examination .

Mr. Acuna identified the handwritten ÐDilation $39Ñ as

RespondentÓs note to remind the staff person going over the

benefit s summary with the patient to inform the patient that

there would be a $39 dilation fee. Mr. Acuna said that he d id

that: using the benefits summary page, with its $39 dilation fee

reminder, he claims that he went over the dilation fee with N.P.

at least once, and maybe twice, before the examination. However,

t he benefit summary pages, printed from the third - party payorÓs

website, bear the date December 3, 2012 , in the top left corner.

(Pet. Ex. 2, p. 31 - 32). The next page after the two - page

b enefits s ummary is a ÐUtilization Summary,Ñ showing what the

available benefits are for N.P. (t aking into account claims

al ready paid during the benefit period) , and this page bears the

same printout d ate -- December 3, 2012. The utilization summary

page makes absolutely clear that December 3, 2012, was the date

this website information was printed out, by defining the Ðissue

d ateÑ of the utilization review information for N.P.Ós plan as

Ð12/3/2012.Ñ (Pet. Ex. 2, p. 33). Accordingly, the benefits

summary pages could not have been reviewed with N.P. on

October 4, 2012; they were not printed out until two months

later. And if t he benefit summary pages were not printed out

until two months after N.P.Ós visit, quite obviously the

ÐDilation $39Ñ note could not have been written until after the

benefits summary was printed out on December 3, 2012, for some

purpose other than to prom pt staff to discuss the fee with N.P.

in October 2012. These pages are included in the group of N.P.

patient records that were certified by Respondent on December 13,

2012, as true and correct copies of patient records for N.P.

(Pet. Ex. 2, p. 26). In co ntext, then, the benefits summary with

handwritten ÐDilation $39Ñ note and the utilizat ion review issued

Dec ember 3, 2012, were genera ted to provide to the Department in

the course of its investigation of N.P.Ós complaint.

4 / In an effort to confuse what is essentially a straightforward

matter , Respondent claimed that N.P. was actually not covered

under an insurance plan, because his Medicare A dvantage insurance

had a d epartment or division, or a contractual arrangement with a

vision plan , to process or a dminister the vision benefits under

N.P.Ós Medicare A dvantage insurance plan. Respondent testified

variously that: vision plans are not considered insurance , and

it is Ðagainst the lawÑ to refer to vision plans as insurance

(though no such law was identi fied) ; or there are two types of

vision plans, those t hat are an ÐarmÑ of a Medicare A dvantage

insurance plan to administer that planÓs vision benefits, and

freestanding plans that provide vision benefits to employer

groups to provide benefits to employees who pay into a fund in

advance . Respondent acknowledged that N.P. had a Medicare

A dvantage insurance plan, and that the vision benefits under that

plan were administered by a Ðvision planÑ ; yet he still seemed to

contend that the administrator would not have to adhere to

billing, coding, and claims requirements of the Medicare

A dvantage insurance plans . He offered no evidence or legal

authority to support the notion that N.P.Ós Medicare A dvantage

insurance plan was somehow not considered insurance. His

assertion was contradicted by his own expert who said that vision

plans are insurance plans . RespondentÓs expert could not

validate the use of CPT code 92019 to bill vision plans for

dilation based on her experience, which was the sole basis for

qualifyin g her as an expert. In fact, her 18 years of experience

coding vision se rvices provided by optometrists, without having

ever heard of or used CPT code 92019, is evidence undermining

RespondentÓs attempt to legitimize its use for dilation.

Ms. Dickinson testified that CPT code 92004 encompasses a

comprehensive eye examination , including fundus examination, with

or without dilation. Thus, in her 18 years of experience coding

comprehensive eye examinations performed by optometrists, when

dilation was provi ded with those examinations, she considered it

included under CPT code 92004.

5/ The facts found above portray a mor e nefarious, multi - pronged

scheme to impose charges i n more ways than one when patients came

in the door as a result of the advertisement , asking for their

free eye exam for glasses. As the Ðhow will you payÑ form makes

clear, if a patient wanted a Ðfree eye examÑ that would result in

a prescription for glasses, the patient would be charged $48.00.

However, a Ðbait and switchÑ approach wa s also employed, whereby

patients were asked about insurance coverage and , if they were a

Medicare patient, they were required to produce any Medicare

Advantage or Medicare Supplement insurance cards before they

would be examine d. And, as found above, at least in the instance

of N.P., the patients may have been led to believe that they

would still be examined for free (in the sense that their

insurance covered , i.e., would pay for the exam), but may not

have been told, as N.P. was not told, that he would b e charged a

Ðdilation fee Ñ of $39.00. Regardless of approach, the proof was

consistent with the allegation that the advertisement promised a

free eye exam for glasses, but Respondent ended up charging one

way or the other -- sometimes $39.00 (plus charges t o the third -

party payor) , sometimes $48.00 -- for an examination that would be

sufficient to allow Respondent to write a legal prescription.

6/ Petitioner proposed somewhat more lenient discipline .

However, Petitioner mistakenly relied on the penalty rang es for

minor administrative violations after concluding that

RespondentÓs two counts were both major administrative

violations. The recommended discipline here is equivalent to

PetitionerÓs proposed discipline , which was found to be

appropriate when adjus ted to the higher ranges applicable to

major administrative violations.

COPIES FURNISHED:

Kimberly Lauren Marshall, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

William Gus Belcher, Esquire

Belcher & Epstein, P.A.

Post Office Drawer 2199

Fort Myers, Florida 33902

(eServed)

Amanda M. Godbey, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Anthony B. Spivey, DBA, Exec utive Director

Board of Optometry

Department of Health

4052 Bald Cypress Way, Bin C - 07

Tallahassee, Florida 32399 - 3257

(eServed)

Louise Wilhite - St Laurent, Gen eral Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32 399

(eServed)

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.