ALJDEC decisions subject to certification as final

12F-201000301-DEN · Board of Dental Examiners · 2013-03-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2012 through October 31, 2012, with the record held open until March 8, 2013. APPEARANCES: The Arizona Board of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams. Respondent Brent Tyler Robison, D.M.D. was represented by Jeffrey J. Tonner. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Procedural Background The Arizona Board of Dental Examiners (“Board”) has authority to regulate and control the practice of dentistry in the State of Arizona. The Board is charged with enforcing the provisions of the Dental Practice Act, A.R.S. § 32-1201 et seq. Brent Tyler Robison, D.M.D. (“Respondent”) holds dental License No. D 5402 issued by the Board. Respondent’s dental practice is limited to orthodontics, and Respondent is the sole owner of his dental practice. On December 9, 2010, the Board opened an investigation against Respondent based on an anonymous complaint for allegations of fraud and irregularities in his billing practices. A panel of two dentists and a lay person conducted an investigative interview regarding the complaint and made recommendations to the Board for proposed findings, violations, and sanctions. Respondent challenged the recommendations before the Board. Prior to an August 5, 2011 Board meeting, Respondent submitted a letter from the general counsel’s office of Banner Health Corporation (“Banner Health”). The letter indicated Respondent was under no legal obligation to collect copayments from Banner Health employees treated by Respondent. Following the receipt of the letter, the Executive Director interviewed other Banner Health personnel for further information. The Executive Director shared the information she gathered with the Board’s president. At the August 5, 2011 Board meeting, the following exchange occurred: Mr. Tonner: And my response to that [are Banner Health patients required to pay copayment] would be to look at the first Banner letter in May [exhibit A] where the attorney says whether or not he – Dr. Waite [Board president]: But, Mr. Tonner that is a letter from the attorney that has absolutely nothing to do with their department, benefit department. Elaine [Executive Director] – Elaine has been in contact with the benefit department. They had no knowledge of this attorney writing that letter . . . .

The Board did not adopt the recommendations from the panel. On October 7, 2011, the Board forwarded this matter to a formal administrative hearing. Subsequently, the Board rescinded its vote for a formal hearing, remanded the matter for more investigation into Respondent’s billing practices and added allegations regarding the quality of care and failure to comply with a subpoena. On April 13, 2012, the Board again voted to forward the matter to a formal hearing. On July 24, 2012, the Board issued a Complaint and Notice of Hearing to Respondent alleging Respondent had engaged in unprofessional conduct pursuant to A.R.S. § 32-1201(21)(n), A.R.S. § 32-1201(21)(o), A.R.S. § 32- 1201(21)(p), A.R.S. § 32-1201(21)(w), A.R.S. § 32-1201(21)(x), and A.R.S. § 32-1264(A). A hearing was held at the Office of Administrative Hearings from October 29, 2012, through October 31, 2012. Billing Practices Respondent supervises a staff of approximately 15 employees. Respondent testified that he delegates the insurance and patient billing and collecting functions to his staff, but Respondent acknowledged that he has the ultimate responsibility for those aspects of his practice. Respondent’s average fee for orthodontics is approximately $6,000.00. Respondent offers his patients the following treatment options: “full treatment” option for $4,500.00 to $6,500.00; “comprehensive treatment” option for $7,680.00; and “extended treatment” option for $9,980.00. Respondent testified that the “extended treatment” option includes a lifetime warranty for the orthodontic treatment that allows patients to seek retreatment from Respondent at no additional cost. Patients who choose the “extended treatment” option sign a contract that purports to put them on payment plans that extend for 23 years or 276 months with a nominal monthly payment required, e.g. $18.00. Respondent testified that at the time he initiated the extended payment plans, his intent was that the patients would make monthly payments until they decided they no longer wanted the extended plan; if a patient informed Respondent that they no longer want to make the payments, Respondent wrote off the balance. The Board’s expert witness, Cliff Running, D.D.S., testified that in his experience as a practicing orthodontist he had never heard of a lifetime warranty for orthodontic treatment. Kim Trembly, Respondent’s current office manager, similarly testified that in her many years of experience working for dentists and orthodontists, Respondent was the first dentist who offered a lifetime guarantee on orthodontic treatment. Ted Evers, a benefits compliance consultant for Banner Health, also testified that other than Respondent, he had never seen a provider who offered lifetime warranties. Banner Health In 2007, Respondent began providing orthodontic treatment to employees of Banner Health. Banner Health offers its employees medical and dental benefits through self-insured plans (“Banner Health Plans”) that are administered by Banner Plan Administration (“BPA”). Ted Evers, a Banner Health employee, testified that the self-insured Banner Health Plans are almost identical to health plans administered by insurance companies. Banner Health employees elect benefits during an annual open enrollment period. The receipt of the dental benefits is conditioned on the employees agreeing to certain terms and conditions of the benefit plans and paying premiums for the benefits (including dental benefits). In exchange, Banner Health provides the employees the benefits as would an insurance company. Banner Health employees, their spouses, or children (collectively “employees”) may choose to receive dental treatment from either in-network or out-of-network providers. Respondent is an out-of-network provider. BPA offers orthodontic benefits to BPA members under two different plans—a “Comprehensive Plan” and an “Enhanced Plan.” Each of the plans requires the Banner Health employee to pay a 50 percent copayment for orthodontic treatment regardless of whether the employee chooses an in-network or out- of-network provider. Notwithstanding that Respondent is an out-of-network provider, Banner Health expects that its employees are paying their 50 percent copayments for orthodontic treatment and expects that the provider collects the copayments and appropriately bills BPA. If a provider, in-network or out- of-network, does not intend to collect a copayment from a Banner Health employee, Banner Health expects the claim submitted to BPA to reflect this. To receive reimbursement from BPA for orthodontic treatment Respondent provided to Banner Health employees, Respondent submitted dental claim forms to BPA. During the Board’s investigation of the allegations against Respondent, Respondent, through his counsel, represented to the Board in regards to his billing practices with BPA: “Respondent charged Banner $10,000 for full orthodontic services, the company paid its one-half, and the balance sometimes was collected but most often was not.” Respondent acknowledged this statement as true at the time it was written on July 27, 2011. Respondent testified that when he began treating Banner Health employees, he did not charge and did not expect to collect any copayment from the patient. However, Respondent found the patients were noncompliant with the treatment because they did not have “any skin in the game.” To address this issue, Respondent began requiring at least a nominal payment from patients. Numerous Banner Health employees sought orthodontic treatment from Respondent because of Respondent’s practice of not charging or collecting all or part of the copayment amounts. Phyllis Flottmann, Respondent’s former employee, testified that during the time she worked for Respondent, none of the patients with Banner Health Plan benefits ever paid their full copayment amount. Respondent submitted dental claim forms to BPA that misrepresented the actual amount of the total fees that he charged or intended to collect. Respondent did not charge or intend to collect all or part of the copayment amounts from the Banner Health employees, but he consistently submitted claims to BPA representing that the treatment fee was approximately $10,000.00. Respondent initiated patient T.C.’s orthodontic treatment on December 5, 2008. T.C.’s financial agreement, which is signed and dated January 12, 2008, indicates that T.C. entered into the “Extended Treatment” plan with a total orthodontic investment in the amount of $9,980.00. The estimated insurance amount was $4,990.00, and T.C.’s portion of the fee was $4,990.00. Respondent testified that at the time T.C. entered into her payment agreement, he had no intention of collecting the $4,990.00 from her. Respondent’s financial ledger for T.C. represents that T.C. made a cash payment to Respondent on December 19, 2008, in the amount of $4,990.00. In fact, Respondent received no money from T.C. Respondent submitted an initial dental claim form and monthly claim forms to BPA representing that the total fee for the treatment was $9,980.00. BPA reimbursed Respondent 50 percent of the total fee of $9,980.00 based on Respondent’s representations. Ted Evers testified that BPA’s responsibility for T.C.’s treatment should have been nothing because Respondent did not charge T.C. any fee for her treatment. Respondent initiated orthodontic treatment on patient L.C. on July 24, 2007. The financial agreement dated July 24, 2007, and signed by K.C. (L.C.’s mother) indicates that the total orthodontic treatment investment was $9,480.00 and the estimated insurance portion was $4,740.00. Respondent gave K.C. a “professional courtesy” discount in the amount of $3,800.00, which resulted in K.C. being responsible for $940.00 ($94.00 per month for 10 months). Respondent submitted an initial dental claim form and monthly claim forms to BPA representing that the total fee for the treatment was $9,480.00. Respondent did not deduct the discounted amount from the amount of the fee he submitted to BPA. BPA reimbursed Respondent 50 percent of the total fee of $9,480.00 based on Respondent’s representations. At the hearing, Respondent produced a copy of a check dated January 9, 2012, Exhibit F, in the amount of $1,639.91 which he and his office manager testified was the amount refunded to BPA for the overpayment on L.C. Based on the date of the check, Respondent issued this refund to BPA well after the Board’s investigation of this matter commenced, and he did not disclose it to the Board prior to the hearing. If Exhibit F is taken as the amount refunded to BPA, that amount still does not accurately represent the amount Respondent billed BPA. Because the patient’s responsibility for the treatment was only $940.00, BPA’s total responsibility should have only been $940.00. The payments BPA made to Respondent totaled $4,479.91. Respondent initiated orthodontic treatment on patient T.T. on October 20, 2010. A financial agreement dated October 20, 2010, and signed by T.T.’s parent indicates that the total orthodontic treatment investment was $9,980.00, the estimated insurance portion was $5,000.00 and the responsible party’s portion was $4,980.00. The financial agreement includes a payment plan requiring the responsible party to make $18.00 monthly payments for 276 months or 23 years. The financial agreement also indicates that “pt. paying $18-pr month while in active treatment (18 months) @ which time balance can be written off @ no detriment to responsible party!” T.T.’s treatment records also contain a revised financial agreement, dated March 28, 2011, indicating that the total orthodontic treatment investment was $864.00 with estimated insurance being $432.00 and the responsible party’s portion $432.00 (to be paid in $18.00 monthly payments for 24 months beginning on November 16, 2010). Respondent submitted an initial dental claim form and monthly claim forms to BPA representing that the total fee for the treatment was $9,980.00. BPA reimbursed Respondent 50 percent of the total fee of $9,980.00 based on Respondent’s representations. Respondent testified that he agreed to accept $18.00 per month for 24 months ($432.00), beginning in November 2010, as the patient’s portion of the treatment. BPA, however, continued to rely on the claims submitted by Respondent, based on the $9,980.00 fee and paid him $5,000.00. Patient O.P. first presented to Respondent for an orthodontic examination on November 3, 2009. Respondent did not initiate orthodontic treatment until January 6, 2010, to allow O.P.’s parent to obtain coverage under BPA’s Enhanced Plan which would provide a larger monetary benefit. Respondent’s orthodontic treatment plan for O.P. included upper braces only and a removable appliance on the lower arch. The financial agreement dated November 3, 2009, indicates that the total orthodontic treatment investment was $9,980.00 with the estimated insurance portion as $4,990.00 and the responsible party’s portion as $4,990.00. The financial agreement provides that the responsible party would make $18.00 monthly payments for 276 months with no finance charge. It also has a handwritten note on it stating “For as long as wants to be seen in office!” The payment contract was revised on March 24, 2011, with the foregoing phrase removed. In August 2011, O.P.’s mother contacted Respondent’s office and informed them that she was discontinuing the extended treatment plan. Respondent wrote off the balance due on the remainder of the 276 month payment plan. As of August 2011, 18 payments of $18.00 had been made towards the treatment for a total payment of $324.00. Respondent submitted an initial dental claim form and monthly claim forms to BPA representing that the total fee for the treatment was $9,980.00. BPA reimbursed Respondent 50 percent of the total fee of $9,980.00 based on Respondent’s representations. Patients K.H., R.Q., and K.V. also chose the “extended treatment” option with Respondent for a total stated fee of $9,980.00. For these three patients, Respondent submitted an initial dental claim form and monthly claim forms to BPA representing that the total fee for the treatment was $9,980.00. BPA reimbursed Respondent 50 percent of the total fee of $9,980.00 based on Respondent’s representations. Respondent’s financial ledgers for these patients indicate that $18.00 monthly payments have been made up through October 2012. Banner Health received information regarding Respondent’s billing practices prior to becoming aware of the Board’s investigation. Banner Health did an initial review of Respondent’s claims but decided to wait for the results of the Board’s investigation before making any final decisions. Banner Health did, however, reduce the amount of the total orthodontic benefit covered under the Enhanced Plan from $5,000.00 to $2,500.00 as a result of the matters involving Respondent’s billing practices. Delta Dental During the Board’s investigation of Respondent, it obtained information that Respondent had been audited by Delta Dental of Arizona (“Delta Dental”). The Board issued a subpoena to Delta Dental for documents relating to the audit. Respondent has a Premier Participating Dentist Agreement (“Agreement”) with Delta Dental of Arizona. Under the terms of the Agreement, Respondent is required to accept Delta Dental’s determination of reasonable fees for the dental claims he submits to Delta Dental for reimbursement. Based on the total amount of treatment fees that Respondent submits (the “submitted fee”), Delta Dental may adjust the fee to the amount it has determined is reasonable for the particular treatment (the “approved fee”). Respondent is required to charge the patient in accordance with the approved fee and is prohibited from charging the patient the difference between the submitted fee and the approved fee (the “adjusted fee”). The results of the Delta Dental audit showed that Respondent was not compliant with the terms of the Agreement. For patients J.B., I.Y., J.H., B.L., Q.C., and S.T., Respondent charged the patient the adjusted fee amounts, which resulted in excessive charges to the patients under the terms of the Agreement. For patients J.B., Q.C., I.Y., and B.L., Respondent submitted dental claims to Delta Dental that misrepresented his actual total fees because Respondent gave fee discounts to the patients but did not include the discount in the fee he submitted to Delta Dental. Dr. Sam Palmer, the Board’s Chief Investigator, testified that because the fee amount that Delta Dental approves is dependent upon the amount the provider submits as the total fee, failing to pass on a discount to Delta Dental may affect the amount Delta Dental will approve. Quality of Care The Board’s expert witness, Dr. Running, provided testimony regarding the standard of care for orthodontic treatment and how Respondent’s treatment of the patients who were the subject of the Board’s investigation was below the standard of care. During the Board’s investigation, Dr. Running prepared a Report and Summary of his review of the patient records the Board obtained during its investigation. Dr. Running has 47 years of orthodontic practice and has served as a Board consultant for 25 years. Dr. Running is also an adjunct professor at a dental school. Dr. Running testified that the community standard of care for orthodontic treatment requires an orthodontist to obtain and maintain a patient’s accurate medical and dental history, documented personal information regarding a patient, a thorough documented examination (including a periodontal evaluation), study models, a panorex or full mouth series of radiographs, a lateral cephalometric head film and tracing, five intraoral photographs, and a series of facial photographs prior to initiating orthodontic treatment. Additionally, Dr. Running testified that the standard of care requires a dentist to document and maintain clinical progress notes throughout the course of treatment. The clinical progress notes include the following information: procedures done on the patient; the dates of the procedures; conversations the dentist has with the patient or parent regarding oral health and hygiene; any deviations from the treatment plan; any risks or complications that may have developed during treatment; and documentation of any other conversations with the patient or parent. Dr. Running testified that documentation is a hallmark of the dental profession. Dr. Running testified that the standard of care requires an orthodontist to offer and document in the treatment records alternative treatment plans. Dr. Running testified to the importance of cephalometric x-rays, and tracings for orthodontic treatment and their purpose, i.e. they are used to measure angles by which orthodontists can predict the way a patient is growing and how the orthodontist can work within the growth parameters when doing orthodontic treatment. Dr. Running testified that, based on his review of Respondent’s treatment records for the following patients, Respondent’s orthodontic treatment and/or patient treatment records fell below the standard of care: a. R.Q.—R.Q. presented to Respondent with an underlying periodontal condition evidenced by bone loss visible on the panorex radiograph. There is no indication in Respondent’s treatment records for R.Q. that he addressed the bone loss prior to starting the orthodontic treatment; the standard of care required Respondent to refer the patient for a periodontal evaluation to address the underlying periodontal condition. Additionally, Dr. Running testified that while the treatment records contain a cephalometric head film, Respondent did not do a cephalometric tracing. b. T.T.—Dr. Running testified that the photographs Respondent took of T.T. show tissue loss (a “runner”) on the facial surface of T.T.’s lower left central incisor. Respondent noted this in the treatment record as “Reduced attached gingiva of tooth {24}” but did not address it further. According to Dr. Running, the standard of care required Respondent to address the tissue loss, which should have included referral to a specialist, to prevent further loss of tissue and bone prior to initiating orthodontic treatment, which Respondent failed to do. c. T.C.—T.C. presented to Respondent with a Class I occlusion with mainly anterior esthetic concerns due to tooth size discrepancies. Additionally, both Dr. Running testified that T.C. had visible bone loss on the distal surface of tooth no. 30 due to an existing overhanging amalgam restoration, which Respondent failed to address prior to initiating orthodontic treatment. Dr. Running further testified that there were alternative treatment options available to the patient in lieu of orthodontics, such as a microfilm resin composite or bonding, which Respondent failed to offer. Additionally, Respondent’s treatment of T.C. deviated from the standard of care because T.C.’s treatment records do not contain a cephalometric head film or tracing. d. L.C.—L.C. presented to Respondent with poor oral hygiene and malocclusion (a bi-maxillary protrusion with severe lip incompetency and mentalis muscle strain). Respondent’s treatment of L.C. fell below the standard of care because L.C.’s treatment records do not contain a cephalometric head film or tracing. Additionally, Respondent’s clinical progress notes do not document on-going discussions with L.C. regarding her oral hygiene conditions and practices. Additionally, Dr. Running testified that the standard of care required Respondent to formulate and offer alternative treatment options to the patient, i.e. extractions or orthognathic surgery. Dr. Running testified that at the conclusion of L.C.’s orthodontic treatment, her malocclusion and facial esthetics were more severe than when she first presented to Respondent. e. O.P.—Dr. Running testified that O.P. presented to Respondent with the only area of concern being small upper lateral teeth and tooth size discrepancies. The standard of care required Respondent to offer and document alternative treatment options other than orthodontics for O.P., i.e. bonding, which Respondent failed to do. Dr. Running additionally testified that O.P.’s treatment records do not contain a cephalometric tracing. f. K.V.—Dr. Running testified that K .V. presented to Respondent with a bi-maxillary Class I occlusion. Respondent extracted teeth nos. 5 and 12 but failed to document the clinical justification for the extraction, which Dr. Running testified fell below the standard of care. g. K.H.—Respondent’s treatment of K.H. deviated from the standard of care because his treatment records for K.H. do not include a cephalometric head film or tracing. h. Q.C.—Respondent’s orthodontic treatment for Q.C. included the extraction of tooth no. 30. Respondent failed to document in Q.C.’s treatment records the clinical justification for the extraction of tooth no. 30 and a corresponding plan for the management of the space left by the extraction. i. J.H.—J.H. presented to Respondent with a Class I molar and cuspid relationship on the right side only and a mandibular skeletal deficiency. Respondent’s orthodontic treatment included the extraction of tooth no. 4. Dr. Running testified that standard of care for a patient with a skeletal deficiency and a Class I occlusion on only one side would include the extraction of the four first permanent bicuspid teeth in order to properly manage the orthodontic treatment, not just one tooth, as was done on J.H. The treatment records Respondent provided to the Board during its investigation for patients Q.C., J.H., J.B., B.L., S.T., and I.Y. did not contain patient health histories or complete clinical progress notes. Additionally, the treatment records did not contain cephalometric films and/or tracings. Dr. Running testified Respondent’s treatment records for those patients are below the standard of care. There is no indication in any of the patient treatment records that Respondent took study models prior to initiating treatment, and no study models were produced as part of any of patient treatment records. Respondent’s expert witness, Dr. Robert Boyd, D.D.S., M.Ed., provided testimony regarding the standard of care for orthodontic treatment and how Respondent’s treatment of the patients who were the subject of the Board’s investigation was within the standard of care. Dr. Boyd is a board-certified orthodontist. Dr. Boyd is the orthodontic chairperson at a dental school. Dr. Boyd has published numerous peer- review articles and chapters in orthodontic textbooks and has lectured internationally on orthodontic topics. Dr. Boyd testified that the field of orthodontics has moved to emphasize the aesthetics of the smile and face as the primary diagnostic criteria rather than the use of x-rays or models. Dr. Boyd stated cephalometric analyses were conducted on a small number of Caucasian people of European descent in the 1930s through the 1950s and are of limited use today. Dr. Boyd testified in today’s standard of care, cephalometric head films and tracing are not needed except for surgical cases or significant skeletal problems. Dr. Boyd agreed that patient treatment records should include clinical progress notes. Dr. Boyd testified as to Respondent’s orthodontic treatment and/or patient treatment records as to the following patients: a. R.Q.—Dr. Boyd agreed that the x-rays of R.Q. showed bone loss and Respondent could have referred the patient for treatment of the periodontal disease with a general dentist. In the two-year period from her initial x-rays to the final ones, there was no obvious signs of bone loss progression. b. T.T.—Dr. Boyd testified that the “runner” observed by Dr. Running was simply a tooth with a long clinical crown. The fluorosis spots on the tooth only appear on enamel, not exposed dentin. c. T.C.—Dr. Boyd testified that T.C. had an existing overhanging amalgam restoration, which Respondent would “ideally” mention to the patient’s general dentist. d. L.C.—Dr. Boyd testified that the treatment was successful because L.C.’s smile had improved overall. Dr. Boyd acknowledged that L.C. had a skeletal deficiency and that surgery was an alternative treatment option that Respondent should have offered and noted in the treatment records, but he did not agree extraction was warranted. e. O.P.—Dr. Boyd testified veneers are an irreversible procedure and were not a valid option for this patient due to the patient’s age, the expected life of a veneer, and the cost to replace the veneers every to 15 years. Dr. Boyd agreed that bonding was an alternative treatment option, but that the lesser invasive option of orthodontics should be attempted before moving to bonding. f. K.V.—Dr. Boyd acknowledged that treatment including extraction needs to be supported by a clinical justification, but asserted the justification does not need to be documented when the justification is obvious. g. K.H.—Dr. Boyd testified a cephalometric head film and tracing were not necessary because K.H. did not have a skeletal problem. h. Q.C.—Dr. Boyd offered no testimony as to Respondent’s treatment of Q.C. i. J.H.— Dr. Boyd offered no testimony as to Respondent’s treatment of J.H. Failing to Comply with a Board Subpoena In addition to the billing issues and quality of care allegations, the Complaint and Notice of Hearing issued to Respondent in this matter charged him with failing to fully comply with subpoenas issued to Respondent for complete patient treatment records. Respondent admitted in his Answer to the Complaint and Notice of Hearing that he did not fully comply with all subpoenas and that some records were produced late. Respondent also admits to a violation of A.R.S. § 32- 1201(21)(w)—failing to comply with a Board subpoena in a timely manner. CONCLUSIONS OF LAW The Board has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Board has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). “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 preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1120 (8th ed. 2004). Open Meeting Law Respondent alleged the Board violated the Open Meeting Law when the Executive Director spoke to the Board president about the information she gathered from Banner Health. In support of his argument, Respondent cites Arizona Attorney General Opinion 75-8, which states: [I]t is our opinion that all discussions, deliberations, consideration or consultations among a majority of the members of a governing body regarding matters which may foreseeably require final action or a final decision of the governing body constitute “legal action” and must be conducted in an open meeting, unless an executive session is authorized. It should be pointed out, however, that such discussions and deliberations between less than a majority of the members of a governing body, or their devices, when used to circumvent the purposes of the Act, would constitute a violation which would subject the governing body and the participating members to the several sanction provided for in the Act.

In alleging a violation of the Open Meeting Law, Respondent had the burden of proof to “allege facts from which a reasonable inference may be drawn supporting an open meeting law violation.” Fisher v. Maricopa County Stadium Dist., 185 Ariz. 116, 120-21, 912 P.2d 1345, 1349-50 (App. 1995). Respondent failed to meet its burden to show that the conversation between the Executive Director and the Board president was intended to circumvent the purposes of the Act. Billing Practices Banner Health A.R.S. § 32-1201(21) defines unprofessional conduct to include: o) Obtaining a fee by fraud or misrepresentation, or wilfully or intentionally filing a fraudulent claim with a third party for services rendered or to be rendered to a patient. (p) Repeated irregularities in billing.

A.R.S. § 32-1201(12) defines “irregularities in billing” to mean: submitting any claim, bill or government assistance claim to any patient, responsible party or third-party payor for dental services rendered that is materially false with the intent to receive unearned income as evidenced by any of the following: . . . . (e) Any statement that is material to the claim and that the licensee knows is false or misleading. (f) An abrogation of the copayment provisions of a dental insurance contract by a waiver of all or a part of the copayment from the patient if this results in an excessive or fraudulent charge to a third party or if the waiver is used as an enticement to receive dental services from that provider. This subdivision does not interfere with a contractual relationship between a third-party payor and a licensee or business entity registered with the board.

Respondent argued extensively that Respondent did not engage in unprofessional conduct because Banner Health was not an insurance company and, therefore, Respondent cannot have been found to be in violation of A.R.S. § 32-1201(12)(f). Respondent failed to raise any defense to the allegation that Respondent violated A.R.S. § 32-1201(12)(e) by making statements to Banner Health that were material to the claim and that Respondent knew were false or misleading. The Administrative Law Judge concludes that it is not necessary to determine whether Banner Health’s relationship with its employees constitutes a “dental insurance contract.” Respondent regularly submitted initial and monthly claims to Banner Health indicating the total treatment cost for a patient was $9,980.00 or another amount approaching $10,000.00 when Respondent had no intention of collecting the 50 percent copayment from the patient. As such, Respondent submitted claims to a third-party payor for dental services rendered that were materially false with the intent to receive unearned income as evidenced by a statement that was material to the claim that Respondent knew was false or misleading in violation of A.R.S. § 32-1201(12)(e). Further, such billing practices constitute “[o]btaining a fee by fraud or misrepresentation, or wilfully or intentionally filing a fraudulent claim with a third party for services rendered or to be rendered to a patient” in violation of A.R.S. § 32-1201(21)(o). Respondent also argued his billing practices were acceptable because the Banner Health representative testified he knew of no legally binding way to make Respondent collect the 50 percent copayments. This argument fails because Banner Health’s inability to require Respondent to collect the 50 percent copayment does not excuse Respondent from complying with the Dental Practice Act. Respondent also argued his billing practices were acceptable because Banner Health was aware of other licensees who billed in the same manner. This argument also fails because the unprofessional conduct of one licensee cannot and does not authorize the unprofessional conduct of another licensee. The Board proved by a preponderance of the evidence that with respect to Respondent’s billing practices for the Banner Health employees, Respondent engaged in repeated instances of unprofessional conduct as defined by A.R.S. § 32 -1201(21)(o) and A.R.S. § 32-1201(21)(p). Such conduct is grounds for discipline under A.R.S. § 32-1263(A)(1).[1] Delta Dental A.R.S. § 32-1201(21)(p) defines unprofessional conduct to include “repeated irregularities in billing.” A.R.S. § 32-1201(12) defines “irregularities in billing” to mean: submitting any claim, bill or government assistance claim to any patient, responsible party or third-party payor for dental services rendered that is materially false with the intent to receive unearned income as evidenced by any of the following: . . . . (g) Any other practice in billing that results in excessive or fraudulent charges to the patient.

The Board established Respondent had submitted incorrect claims in seven cases to Delta Dental in violation of the Agreement. Without any evidence as to the total number of Delta Dental patients Respondent treated and for whom he filed claims, it is not possible to say these seven cases constitute “repeated irregularities in billing” in violation of A.R.S. § 32- 1201(21)(p). Some allowance must be made for human error. The Board failed to prove by a preponderance of the evidence that with respect to Respondent’s billing practices for Delta Dental, Respondent engaged in repeated instances of unprofessional conduct as defined by A.R.S. § 32-1201(21)(o) or A.R.S. § 32-1201(21)(p) as defined in A.R.S. §32- 1201(12)(e) and A.R.S. § 32-1201(12)(f). Quality of Care A.R.S. § 32-1201(21)(n) defines unprofessional conduct to include “[a]ny conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.” With respect to patients R.Q., T.T., T.C., L.C., O.P., K.V., and K.H, there was sufficient competing testimony from the experts regarding the standard of care in the orthodontic community such that the Board failed to establish by a preponderance of the evidence that Respondent engaged in repeated instances of unprofessional conduct in violation of A.R.S. § 32- 1201(21)(n). With respect to patients Q.C. and J.H., the Board established by a preponderance of the evidence that Respondent engaged in repeated instances of unprofessional conduct as defined by A.R.S. § 32 -1201(21)(n). Such conduct is grounds for discipline under A.R.S. § 32-1263(A)(1). A.R.S. § 32-1264(A) provides as follows: A person licensed or certified pursuant to this chapter shall make and maintain legible written records concerning all diagnosis, evaluation and treatment of each patient of record. A licensee or certificate holder shall maintain records stored or produced electronically in retrievable paper form. These records shall include: 1. All treatment notes, including current health history and clinical examinations. 2. Prescription and dispensing information, including all drugs, medicaments and dental materials used for patient care. 3. Diagnosis and treatment planning. 4. Dental and periodontal charting. Specialist charting must include areas of requested care and notation of visual oral examination describing any areas of potential pathology or radiographic irregularities. 5. All radiographs.

A.R.S. § 32-1201(21)(x) defines unprofessional conduct to include “[f]ailing or refusing to maintain adequate patient records.” The Board established by a preponderance of the evidence that Respondent’s treatment records for patients R.Q., T.T., T.C., L.C., O.P., K.V., K.H., Q.C., J.H., J.B., B.L., S.T., and I.Y., constitute repeated violations of A.R.S. § 32-1264(A) and repeated instances of unprofessional conduct as defined by A.R.S. § 32 -1201(21)(x). Such conduct is grounds for discipline under A.R.S. § 32-1263(A)(1) and (4).[2] Failing to Comply with a Board Subpoena A.R.S. § 32-1201(21)(w) defines unprofessional conduct to include “[f]ailing to comply with a board subpoena in a timely manner.” Respondent’s admitted failure to fully comply with Board subpoenas, constitutes repeated instances of unprofessional conduct as defined by A.R.S. § 32-1201(21)(w). Such conduct is grounds for discipline under A.R.S. § 32-1263(A)(1). Disciplinary Action A.R.S. § 32-1263.01 provides as follows: A. The board may take any one or a combination of the following disciplinary actions against any person licensed under this chapter: 1. Revocation of license to practice. 2. Suspension of license to practice. 3. Entering a decree of censure, which may require that restitution be made to an aggrieved party. 4. Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party. 5. Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter. 6. Imposition of a requirement for restitution of fees to the aggrieved party. 7. Imposition of restrictions on the scope of practice. 8. Imposition of peer review and professional education requirements. 9. Imposition of community service.

A.R.S. § 32-1263.02(L) provides that “[t]he board may charge the costs of formal hearings conducted pursuant to title 41, chapter 6, article 10 to a licensee it finds to be in violation of this chapter.” RECOMMENDED ORDER Respondent’s License No. D 5402 shall be revoked on the effective date of the Order entered by the Board. The revocation of Respondent’s License No. D 5402 shall be stayed for a period of five years, during which Respondent shall be on disciplinary probation, subject to any terms and conditions imposed upon Respondent by the Board or its designee. If Respondent commits any statutory or regulatory violations during the term of the probation, the Board may seek to remove the stay of the revocation, after notice and an opportunity for hearing. Not later than 60 days after the effective date of the Order entered by the Board, Respondent shall pay to the Board an administrative penalty in the amount of $10,000.00. If Respondent fails to timely pay such administrative penalty, then Respondent’s dental license shall be automatically suspended on such deadline date until such time that he makes such payment. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, March 28, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Elaine Hugunin, Executive Director Board of Dental Examiners ----------------------- [1] A.R.S. § 32-1263 provides as follows: A. The board may invoke disciplinary action against any person licensed under this chapter for any of the following reasons: 1. Unprofessional conduct, as defined in section 32-1201.

[2] A.R.S. § 32-1263 provides as follows: A. The board may invoke disciplinary action against any person licensed under this chapter for any of the following reasons: 4. Committing or aiding, directly or indirectly, a violation of or noncompliance with any provision of this chapter or of any rules adopted by the board pursuant to this chapter.

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