ALJDEC decisions subject to certification as final

07F-022-CEA · Board of Chiropractic Examiners · 2007-09-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2007. The record closed on August 24, 2007. APPEARANCES: Respondent David Swan, D.C. appeared on his own behalf. Assistant Attorney General Melissa Cornelius represented the State of Arizona. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this case is whether Respondent David Swan, D.C. has committed acts or omissions in violation of Arizona Revised Statutes (“A.R.S.”) § 32-924(A), and, if so, whether he is subject to disciplinary action. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order: FINDINGS OF FACT 1. The Arizona Board of Chiropractic Examiners (the “Board”) is the duly constituted authority for licensing and regulating the practice of chiropractic in the State of Arizona. 2. Respondent David Swan, D.C. is the holder of License No. 5610 for the practice of chiropractic in the State of Arizona. 3. On May 25, 2007, the Board issued a Complaint and Notice of Hearing in which it alleged that Dr. Swan had violated the Chiropractic Practice Act, A.R.S. § 32-900 et seq., in two particulars. First, the Board alleged in Complaint No. 2007-022 that Dr. Swan had failed to comply with a Board Order in violation of A.R.S. § 32-924(A)(5) and (A)(16). Second, the Board alleged in Complaint No. 2006-123 that Dr. Swan had

failed to exercise due care in the treatment of patient L.B., and had failed to properly document the care that he provided, in violation of A.R.S. § 32-924(A)(5), (A)(15), (A)(22), and (A)(23). 4. Pursuant to the Board’s Complaint and Notice of Hearing, the hearing in this matter convened on July 30, 2007. Dr. Swan appeared on his own behalf; Assistant Attorney General Melissa Cornelius represented the State of Arizona. The Administrative Law Judge addresses each of the Board’s complaints in turn. Non-Compliance with Board Order (Case No. 2007-022) 5. On October 22, 2005, Dr. Swan entered into a Consent Agreement with the Board in Case Nos. 2005-019 and 2005-102. See Exhibit 1. Pursuant to the terms of that Consent Agreement, the Board concluded that Dr. Swan had violated A.R.S. § 32-924(A)(5) (unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession), A.R.S. § 32-924(A)(15) (any conduct or practice contrary to recognized standards in chiropractic or any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public or any conduct, practice or condition that impairs the ability of the licensee to safely and skillfully practice chiropractic), A.R.S. § 32- 924(A)(16) (violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter or any board order), and Arizona Administrative Code ("A.A.C.") R4-7-902(3) (failing to create and maintain a patient record that includes the patient's health history, examination findings, diagnostic results, x-ray films if taken, x-ray reports, treatment plan, and notes for each patient visit). 6. In consequence of the foregoing violations, the Board entered an Order pursuant to which it suspended Dr. Swan’s chiropractic license for a period of 30 days, to be followed by a two year probationary period. The terms and conditions of Dr. Swan’s probation were as follows: a. Within and up to three (3) months from the effective date of this Order, [Dr. Swan] shall complete twelve (12) hours of continuing education in assessment and diagnosis that is pre- approved by Board staff and provide Board staff with

satisfactory proof of attendance within fifteen (15) days after completing the course(s). The twelve (12) hours of continuing education in assessment and diagnosis is in addition to the mandatory hours of continuing education required of [Dr. Swan];

b. Within and up to three (3) months from the effective date of this Order, [Dr. Swan] shall complete six (6) hours of continuing education in recordkeeping that is pre-approved by Board staff and provide Board staff with satisfactory proof of attendance within fifteen (15) days after completing the course(s). The six (6) hours of continuing education in recordkeeping is in addition to the mandatory hours of continuing education required of [Dr. Swan];

c. Within one (1) year of the effective date of this Order, [Dr. Swan] shall take the National Board of Chiropractic Examiners Special Purpose Examination for Chiropractic and obtain a score of seventy-five percent (75%) or better to pass the examination. If [Dr. Swan] fails the examination, he can retake the examination one more time; however, the retaking of the examination shall occur within one year from the effective date of this Order;

d. Four (4) months after the effective date of this Order, [Dr. Swan] shall be subject to a minimum of three (3) chiropractic records audits per year by Board staff or its appointed designee. The audits shall review records from the effective date of this Order to the date of the audit(s). [Dr. Swan] shall fully and promptly cooperate with Board staff or its designee during these chiropractic audits and provide whatever assistance or resources they request;

e. Within ten (10) days from the effective date of this Order, [Dr. Swan] shall personally meet with Board staff to discuss the terms and conditions of his probation and any other matters of concern; and

f. [Dr. Swan] shall bear all direct and indirect costs of complying with this Order.

See Exhibit 1.

7. On November 15, 2005, Dr. Swan met with Charles Brown, the Board’s Deputy Director, to review the terms and conditions of his probation. That meeting resulted in the production of a two page document that outlined the terms of Dr. Swan’s probation. See Exhibit 2. Dr. Swan executed that document, acknowledging that he “clearly and fully understood” the requirements of the Board’s Order. See id. At no time during his meeting with Mr. Brown did Dr. Swan advise Mr. Brown that he lacked sufficient financial resources to comply with the Order. 8. Dr. Swan served his 30 day suspension. He did not, however, comply with the terms of his probation. At hearing, Dr. Swan stated that his noncompliance was attributable solely to his lack of sufficient funds to pay for the required continuing education courses and for the Special Purpose Examination.[1] 9. On or about July 26, 2006, Mr. Brown conducted a review of Dr. Swan’s compliance with the terms of his probation. By memorandum of that date, Mr. Brown reported to the Board that Dr. Swan had failed to meet the terms of his probation. Mr. Brown added:

Dr. Swan claims that he had requested an extension to comply with these requirements, but I do not have such a request on file. I do recall Dr. Swan asking how such a request is made, but I do not have the request on file. I have instructed Dr. Swan to bring a copy of his request to the Board meeting.

See Exhibit 3.

10. At hearing, Dr. Swan urged that he had filed an extension request, but his testimony on this point was not persuasive. First, Dr. Swan was not able to produce a copy of the request. Second, common sense dictates that if Dr. Swan had submitted such a request and had not received an answer, he would, given the gravity of the situation, have followed up with the Board, and there is no evidence in the record that he did so.[2]

Treatment of Patient L.B. (Case No. 2006-123) 11. From July 23, 2004 until September 16, 2004, Dr. Swan provided chiropractic care and treatment to L.B., who had suffered traumatic injury as a result of a motor vehicle accident. 12. L.B. initially presented with symptoms that included confusion, weakness, and head, neck, upper/middle back and lower back pain. Dr. Swan diagnosed restriction of motion, cervical (719.50), facet syndrome, lumbosacral (724.8), difficulty walking, lumbosacral (719.75), wrist pain (719.43), and hand pain (719.44). L.B. subsequently reported left shoulder and wrist pain and stiffness, loss of strength in left wrist, head tingling, and extreme head pain. L.B. further reported the following additional symptoms: blurred vision, constipation, diarrhea, nausea, vomiting, frequent and painful urination, anxiety, dizziness, loss of balance, poor memory, and headaches. 13. On three occasions in August 2004, L.B. suffered blackouts. On one such occasion, L.B.’s head struck a refrigerator; on another, L.B. was in the shower and reported a “huge headache” afterwards. 14. The foregoing incidents notwithstanding, Dr. Swan did not immediately refer L.B. to another physician for a neurological consultation. The evidence of record suggests that Dr. Swan may have felt that such a referral would have resulted in his loss of L.B. as a patient, with a corresponding loss of income. 15. In mid September 2004, Dr. Swan referred L.B. to Dr. Derrick Price, D.C. Dr. Price examined L.B. on September 15, 2004 and stated “it was visually obvious that he was suffering from vertigo and special [sic] disorientation.” See Exhibit 7. Dr. Price referred L.B. to Dr. David George, D.C., a board certified chiropractic neurologist. Dr. George examined L.B. on October 18, 2004 and opined that “the patient is very clearly exhibiting several concerning signs involving multiple levels of involvement with respect to the neuraxis.” See Exhibit 7. 16. Dr. George released L.B. from his care on or about December 16, 2004. According to Dr. George, L.B. had made an “excellent recovery”. See Exhibit 7.

17. In January 2006, the Board received a referral from the Arizona Department of Insurance regarding a complaint that had been lodged against Dr. Swan by State Farm Insurance Companies. See Exhibit 4. The complaint allegations were as follows:

● The complainant does not know if the initial evaluation and management code 99203 was adequately documented in the patient record.

● There was no x-ray report in the patient record.

● On July 23, 2004 Dr. Swan billed a 98941 (3-4 region adjustment) with no documentation in the record and on August 20, 2004 only documents a one region adjustment.

● On July 23, 2004 a 98951 was billed, but there is no documentation of the patient record to include the required separate report.

● The patient records do not completely document the length of service or the specific treatments when Dr. Swan has billed for services 97110 and 97112.

See Exhibit 9.

18. By letter dated April 3, 2006, the Board advised Dr. Swan that it had received a complaint against him. The Board provided Dr. Swan with a copy of the complaint and requested that he provide, within ten days, a written explanation of his position. See Exhibit 5. The Board also enclosed a subpoena that directed Dr. Swan to produce all of his records pertaining to his treatment of L.B., and to produce documentation of his 2004 and 2005 continuing education.[3] 19. By letter dated April 11, 2006, Dr. Swan responded to the complaint. The gravamen of that response was as follows: ● Dr. Swan met the CPT requirements for a 99203 exam.

● Dr. Swan acknowledged that at the time he treated L.B. he did not maintain x-ray reports in his patient records; however, he has since changed that practice.

● Dr. Swan did not bill a 98941 procedure on July 23, 2004.

● There is no CPT code 98951, nor did Dr. Swan bill for that code on July 23, 2004.

● Dr. Swan believed that he had properly documented the services billed under CPT codes 97110 and 97112.

See Exhibit 6.

20. On or about April 15, 2006, Dr. Swan produced L.B.’s chiropractic record to the Board. See Exhibit 7. 21. By letter dated July 12, 2006, the Board acknowledged Dr. Swan’s response to the complaint, and advised him that the Board would be considering the complaint at its August 10, 2006 meeting. See Exhibit 8. The Board included with its letter a subpoena to Dr. Swan for his appearance at the August 10, 2006 meeting. 22. In anticipation of the Board’s August 10, 2006 meeting, Mr. Brown prepared an investigative report. See Exhibit 9. Mr. Brown concluded: ● The new patient evaluation and management service billed for services on July 23, 2004 appears to have the history, examination, and medical decision making components required by the code documented in the patient file. The allegation appears to be a broad impression rather than a research allegation.

● Dr. Swan has admitted he did not create or maintain an x- ray report on this patient, which appears to be an admission to a violation of law.

● There is no billing for the service 98941 on July 23, 2004 as alleged in the complaint.

● There was no 98951 billed; however, there was a 95851 billed on July 28, 2004, which is a range of motion test. However, the service requires a separate report, which I did not find in the patient record. The service appears to require the test to be performed to the entire spine; however, the notation of the range of motion in this dates [sic] daily note only comments on the cervical region.

● When Dr. Swans [sic] daily note is read in combination with the therapy log, it appears the minimum combination of information to document the service of 97110 (therapeutic procedure) and 97112 (neuromuscular reeducation) is documented in the daily record. However, the record keeping law A.A.C. R4-7-902(3) requires the documentation for services rendered to be in the daily note. Therefore, it may be more accurate for Dr. Swan to at least mention the therapy log in his daily notes or include all of the information in one place, but he may have to meet the intentions of the law in documenting these particular services.

● I did not see any apparent violation of law in Dr. Swan not documenting the patient referral and subsequent transfer of care more specifically, but it certainly would seem the more descriptive and responsible thing to do as far as documenting his involvement with the patient and the patient’s case in it’s [sic] entirety.

● In my review of this patient’s file it seemed that the patient had severe subjective issues. In addition, there were available x-rays and other records from a hospital that evaluated this patient following an apparent serious accident. Dr. Swan’s record does not appear to show that he reviewed the patient’s hospital records, which may have been beneficial considering he took his own x-rays. While Dr. Swan did eventually refer the patient for other care, the patient’s symptoms my [sic] have suggested a referral soon[er] than two months into treatment.

See Exhibit 9.

23. Based on the foregoing, Mr. Brown concluded that Dr. Swan may have violated A.R.S. § 32-924(A)(5), (A)(15), (A)(16), (A)(22) and (A)(23). See Exhibit 9. 24. Following its consideration of Dr. Swan’s case at its August 10, 2006 meeting, the Board voted to refer the matter of Dr. Swan’s treatment of L.B. to an outside consultant for further review. In this case, that consultant was Dr. Scott Tauber, D.C. 25. Dr. Tauber reviewed the complaint against Dr. Swan, Dr. Swan’s response, and L.B.’s chiropractic record, and prepared a written report that he submitted to the Board on October 12, 2006. See Exhibit 10. Dr. Tauber documented the following billing and/or coding findings:

On 8/6/04, 8/9/04, 8/27/04 and 8/31/06 [sic ( should be 04], a 97110 (therapeutic exercises) and 97112 (neuromuscular reeducation) billing code was used. These services are not supported by the documentation.

On 7/28/06 [sic ( should be 04], a 95851 (range of motion measurements and report, separate procedure) billing code was used. The clinical documentation did not support this service. The records do not contain either the results of the test or the separate report for this procedure.

On 8/23/06 [sic ( should be 04], a 98941 (spinal manipulation 3- areas) billing code was used. The clinical documentation did not support this service. The treatment notes indicate that a manipulation was performed to the cervical region only.

See Exhibit 10.

26. The Administrative Law Judge finds that Dr. Tauber’s conclusions as set forth above are supported by the evidence, and that Dr. Swan failed to properly document his treatment of L.B. with the result that he also committed several billing errors. 27. In his report, Dr. Tauber stated:

It is my opinion, that many of the patient’s office visits contain objective findings that can be considered redundant. Additionally, Dr. Swan relies almost exclusively on palpatory findings in the objective section of his treatment notes. Objective findings can and should include: ranges of motion, orthopedic and/or provocative tests, palpatory findings (spasms, hypertonicity, trigger points, subluxations, etc.) and if applicable, deep tendon reflexes, sensation and muscle strength. It is also my opinion, that this exclusive reliance on palpatory findings, may not have allowed Dr. Swan to effectively monitor the patient’s on-going neurological symptoms.

See Exhibit 10.

28. Dr. Tauber concluded: Based on my review of this patient’s file, it appears that the records are not in compliance with aspects of A.A.C. R4-7-902.

Based upon the patient’s history, the patient’s subjective complaints (indicating a head injury) and Dr. Swan’s initial objective findings (indicating neurological involvement), it is my opinion that this patient should have been evaluated more frequently and thoroughly during the treatment period. Additionally, it is also my opinion that after the patient blacked out and hit their head, as noted on the 8/23/04 office visit, they should have immediately been referred to a neurological specialist for a consult.

See Exhibit 10.

29. The Administrative Law Judge finds that Dr. Tauber’s substantive concerns regarding Dr. Swan’s treatment of L.B. are supported by the evidence, and that Dr. Swan should have promptly recognized L.B.’s neurological deficits and referred L.B. for appropriate assessment and/or treatment by a neurological specialist. The Administrative Law Judge specifically finds that a reasonable and prudent chiropractor would have referred L.B. to a neurological specialist much sooner than Dr. Swan did in the instant case. 30. With respect to L.B., Dr. Swan acknowledged that his recordkeeping was deficient, but urged that L.B. had not suffered any adverse consequences as a result of his treatment. According to Dr. Swan, L.B. was so satisfied with the results of his treatment that he had decided to pursue a career in chiropractic. CONCLUSIONS OF LAW In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Dr. Swan violated A.R.S. § 32-924(A), and that he is therefore subject to discipline pursuant to A.R.S. § 32- 924(I). See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). A.R.S. § 32-924(A) sets forth 28 separate grounds upon which the Board may impose sanctions against a licensee. The Board alleged five of these grounds in the Complaint as follows: 5. Unprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession.

* * * * *

15. Any conduct or practice contrary to recognized standards in chiropractic or any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public or any conduct, practice or condition that impairs the ability of the licensee to safely and skillfully practice chiropractic.

16. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of or conspiring to violate any of the provisions of this chapter or any board order.

* * * * *

22. Billing or otherwise charging a patient or third party payor for services, appliances, tests, equipment, an x-ray examination or other procedures not actually provided.

23. Intentionally misrepresenting to or omitting a material fact from the patient or third party payor concerning charges, services, appliances, tests, equipment, an x-ray examination or other procedures offered or provided.

The Administrative Law Judge concludes that the Board met its burden of proof as to all but one of the foregoing violations. Non-Compliance with Board Order (Case No. 2007-022) Dr. Swan violated A.R.S. § 32-924(A)(16) when he failed to comply with the terms of the Board’s October 22, 2005 Order. Dr. Swan urged that he was precluded from compliance by his financial situation; however, there is no credible evidence in the record that Dr. Swan advised the Board of his financial difficulties, or that he timely requested an extension of time to comply. Treatment of Patient L.B. (Case No. 2006-123) Dr. Swan violated A.R.S. § 32-924(A)(5), as further defined by A.A.C. R4-7-902(3), when he failed to create and maintain a complete patient record for L.B. Dr. Swan violated A.R.S. § 32-924(A)(15) when he failed to recognize the severity of L.B.’s injuries, and failed to promptly refer L.B. to a neurological specialist. Dr. Swan violated A.R.S. § 32-924(A)(22) by billing for procedures that were not actually performed.

As to Dr. Swan’s alleged violation of A.R.S. § 32-924(A)(23), the evidence was insufficient to show that Dr. Swan had committed an intentional misrepresentation. Based on the violations of statute found herein, grounds exist to impose discipline against Dr. Swan’s license. A.R.S. § 32-924(I) provides:

Any licensee who, after a hearing, is found to be in violation of this chapter or board rules or is found to be mentally or physically unable to safely engage in the practice of chiropractic is subject to any combination of those disciplinary actions identified in subsection F or suspension or revocation of the license. In addition, the board may order the licensee to pay restitution or all costs incurred in the course of the investigation and formal hearing in the matter, or both.

The State requested that Dr. Swan’s license be revoked. The Administrative Law Judge has given careful consideration to this request, but finds that the weight of the evidence does not support such a remedy. There can be no question, from the evidence presented, that Dr. Swan violated the terms of his probation and committed violations of the Chiropractic Practice Act with respect to patient care. However, Dr. Swan has not shown that he is beyond regulation, and it appears that rehabilitation may be possible through a combination of education and practice monitoring similar to that adopted by the Board in its October 22, 2005 Order. ORDER On the effective date of the Order entered in this matter, Dr. David Swan’s license for the practice of chiropractic in the State of Arizona (No. 5610) shall be suspended for not less than sixty (60) days. Dr. Swan shall be affirmatively responsible for petitioning the Board to terminate his suspension upon the expiration of the initial 60-day period. As a condition to the termination of his suspension, Dr. Swan shall complete fifteen (15) hours of continuing education in assessment and diagnosis, and six (6) hours of continuing education in recordkeeping, all such hours to be pre-approved by Board staff, and provide Board staff with satisfactory proof of attendance within fifteen (15) days after completing the course(s). Such continuing education is in addition to the mandatory hours of continuing education required of Dr. Swan.

If Dr. Swan fails to complete the fifteen (15) hours of continuing education in assessment and diagnosis, and the six (6) hours of continuing education in recordkeeping, within six (6) months of the effective date of this Order, his suspension shall automatically terminate and his license shall be revoked. Upon the termination of Dr. Swan’s suspension by means other than revocation of his license, Dr. Swan’s license shall be placed on probation for a period of three (3) years. The terms and conditions of Dr. Swan’s probation are as follows: 1. Within and up to six (6) months from the commencement of his probation, Dr. Swan shall complete six (6) additional hours of continuing education in assessment and diagnosis, and three (3) additional hours of continuing education in recordkeeping, all such hours to be pre-approved by Board staff, and provide Board staff with satisfactory proof of attendance within fifteen (15) days after completing the course(s). Such continuing education is in addition to the mandatory hours of continuing education required of Dr. Swan. 2. Within one (1) year from the effective date of this Order, Dr. Swan shall take the National Board of Chiropractic Examiners Special Purpose Examination for Chiropractic and obtain a score of eighty percent (80%) or better to pass the examination. If Dr. Swan fails the examination, he can retake the examination one more time; however, the retaking of the examination shall occur within one (1) year from the effective date of this Order. 3. For the entire term of his probation, Dr. Swan shall be subject to a minimum of three (3) chiropractic records audits per year by Board staff or its appointed designee. The audit(s) shall review records from the effective date of this Order through the date of the audit(s). Dr. Swan shall fully and promptly cooperate with Board staff or its designee during these chiropractic audits and provide whatever assistance or resources they request. Dr. Swan shall bear all direct and indirect costs of complying with this Order. Dr. Swan shall appear in person before the Board to respond to questions or concerns regarding his compliance with this Order when requested by the Board.

In the event that Dr. Swan moves out of state or ceases to practice chiropractic in Arizona, he shall notify the Board of these events in writing within twenty (20) days of these events; and the terms and conditions of his probation may be stayed by the Board until Dr. Swan returns to the practice of chiropractic in Arizona. All other requirements of this Order shall remain in full force and effect. Dr. Swan shall obey all federal, state, and local laws, rules, and regulations, including those governing the practice of chiropractic in this State. Violation of this paragraph, in addition to being considered noncompliant with this Order, shall also be a separate violation of the laws, rules, and regulations governing the practice of chiropractic in this State.

Done this day, September 19, 2007.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of September, 2007, to:

Patrice Pritzl, Executive Director Board of Chiropractic Examiners 5060 N. 19th Avenue, Suite 416 Phoenix, AZ 85015

By ___________________________ ----------------------- [1] On February 2, 2006, Dr. Swan attended a Diagnostics and History class for six hours. However, notification of his completion of the course was not timely filed with the Board because payment was not furnished appropriately or in a timely manner. See Exhibit 3. [2] On August 10, 2006, after the matter of his noncompliance had been referred to the Board, Dr. Swan sent a letter to Mr. Brown “to explore the possibility of getting an extension on the March 9th deadline for completing my continuing education requirements . . . The reason for this request is purely financial.” See Exhibit 3. [3] According to Mr. Brown’s testimony at hearing, the Board requests continuing education information as a matter of course in each investigation that it conducts.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826