ALJDEC - Licensing

24F-002-CEA · Board of Chiropractic Examiners · 2024-10-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the License of:

Herbert L. Schillersom, D.C.

Holder of License No. 3847

For the Practice of Chiropractic

in the State of Arizona

No. 24F-002-CEA

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 11, 2024

APPEARANCES: Assistant Attorney General Casey Hutchinson represented the Arizona Board of Chiropractic Examiners (Board). Joshua Greer, Esq. represented Herbert L. Schillersom, D.C (Respondent).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

EXHIBITS ADMITTED INTO EVIDENCE: Board’s Exhibits 1 through 20. Respondent’s Exhibits 1 through 17.

_____________________________________________________________________

FINDINGS OF FACT

1. On January 24, 2019, the Acting-Chair of the State of Arizona Board of Chiropractic Examiners, Richard Guarino, signed an order placing Respondent on probation for two years and required Respondent to reimburse the cost of the investigation for Case Number 2018-018 within six (6) months from the effective date of the Order (January 24, 2019). See Exhibit 1. However, the Order provides that it was filed with the Board and mailed to Respondent on December 18, 2019. See id at Bates CHR-006.

2. There was no direct evidence presented at hearing that the Order was mailed on any other date.

3. On January 27, 2020, at the Board’s Regular Session Meeting, the Board found that the Respondent was in violation of a Board order for failure to make any of the investigative cost payments. See Exhibit 2.

4. Respondent notified the Board that he had not received the order in the mail and was unaware that he was required to pay the investigative costs.

5. The Board did not substantiate the Respondent’s defense but voted to modify the probation to allow the Respondent to make five payments of $1,000.00 starting on February 15, 2020, and for the balance to be paid in full by June 30, 2020. Respondent agreed to this plan. Respondent did not attempt to appeal the order or request a reduction in the payments.

6. Respondent submitted the first monthly payment of $1,000.00 on February 12, 2020.

7. In June of 2020, the Board received a written request from Respondent to forgive the $4,000 balance because Respondent lost 80% of his patients due to the coronavirus epidemic, an emergency shutdown, looting, protesting, and rioting.

8. On June 24, 2020, at the Board’s Regular Session Meeting, the Board found that Respondent was in violation of the probation order and voted to open case number 2020-036 for noncompliance with the Board order in case number 2018-018.

9. Following the June 24, 2020 meeting, Respondent submitted a letter stating that he had come to a payment plan with a few local politicians and was not required to pay the investigative costs due to the COVID-19 emergency. Respondent then resumed reimbursement payments each month from July 2020 to August 2021, in the amount of $200.00 each.

10. As of August 25, 2021, the Respondent had submitted a total of $3,800.00, leaving a balance of $1,200.00 still yet to be paid.

11. On August 25, 2021, the Board reviewed Case Number 2020-036 where the Respondent appeared with counsel. The Board voted to offer Respondent a consent agreement to resolve the pending probationary period stipulating that Respondent shall pay the remaining $1,200.00 balance immediately upon signing. That agreement was mailed and emailed on September 20, 2021. Respondent failed to enter into that agreement, and continued in violation of his 2018 order and the Board’s decision, to pay $200.00 a month. Respondent resolved his obligation with a final payment of $200.00 in February of 2022.

12. In November of 2020, Respondent submitted an application to renew his license to the Board. See Exhibit 15. Respondent submitted the renewal fee to the Board in the form of a money order.

13. The Board did not process the November 2020 application until August of 2021.

14. The Board’s Deputy Director, Jaime Shapiro, met with Respondent in August of 2021 to process Respondent’s renewal application. Ms. Shapiro used the same application that Respondent submitted in November of 2020 and directed Respondent to cross out the word “Active” and write the words “Probation: See Exhibit 12. Respondent paid the appropriate fee and his license was renewed.

15. On July 23, 2021, the Board received a complaint from SK, a representative from Pekin Insurance Company, Respondent provided unnecessary treatment for both AS and SE following a rear-end collision. The complaint further alleged that the Respondent’s treatment notes were identical; the Respondent indicated on documentation to Pekin Insurance that the treatment was not for an auto accident and that the Respondent was treating AS and SE while suspended.

16. The Board opened an investigation into the complaint.

17. On July 30, 2021, Respondent was sent a notice of complaint and subpoena to his address of record with the Board, requiring him to respond and to provide the full patient records for AS and SE within ten business days after receipt of the subpoena. Respondent failed to comply with the subpoena by failing to provide the requested documents within the required time frame. The Board received the documentation via U.S. Mail on July 15, 2022 from Respondent’s legal counsel. A letter that came with the patient records stated that Respondent had provided the documentation to their legal counsel on or about August 23, 2021 and that it was the legal counsels understanding that the Board had been sent them at the same time. The Board did not receive any patient records from the Respondent prior to the ones received on July 15, 2022.

18. On July 19, 2022, the Board, at its regular meeting, held a formal interview for complaint number 2022-002. The Respondent was present with his attorney and answered questions. During that meeting, the Board substantiated the following facts:

a. Respondent admitted during questioning that his record-keeping needed improvement and could be better. Specifically, Respondent admitted that several examinations performed on SE were noted as “positive” in the records with no indication of what positive meant. The Board found the record lacked foundation for the medical necessity of the care provided.

b. Respondent admitted during questioning that during the initial appointment on October 1, 2021, he failed to document specific exam and palpation findings and a medical history, but had taken one, and the patient said they had no past injuries. Respondent admitted he could have done a better job by indicating in the record the patient’s pain level and palpable tenderness.

c. Respondent admitted when asked if he had performed any other history, including comorbidities, complicating factors, pre-existing conditions, degenerative changes, previous imaging, or previous treatment, that he had not because SE stated he had no previous injuries or medical issues and that the history was not relevant to an auto accident.

d. Standard of care and statute requires an adequate treatment record to contain the following information: patient’s health history, clinical impression, examination findings, diagnostic results, x-ray films if taken, x-ray reports, notes for each patient visit that include the patient’s name, the date of service, the chiropractic physician’s findings, all services rendered, and the name or initials of the chiropractic physician who provided services to the patient. Respondent did not document specific examination findings for SE or AS, a health history, all services rendered and/or the physician’s findings.

e. Standard of care requires that acutely injured patients be routinely reevaluated on a more comprehensive basis using functional outcome assessments, possibly taking vitals and performing a formal reevaluation. Respondent’s treatment records for both SE and AS do not contain information related to the frequency of periodic evaluation and the extent of the evaluation.

f. The chart for Both SE and AS’s records were identical with respect to their complaints and examination findings. Each patient presented with four complaints. Each patient had identical spinal/shoulder levels and tenderness to palpation. Furthermore, the examination findings for both patients indicate positive bilateral issues in the top column and none testing in the column below. The charts also indicate that SE and AS recovered at exactly the same precise rate ending at the termination of care. The Respondent stated that they did present with identical complaints and progressed in treatment at the exact same rate. The Board found that while AS and SE may have had the same subject complaints and answers to recovery, it was improbable, if not impossible, that the examination findings would be identical.

g. The identical records, regardless of Respondent’s testimony that AS and SE presented and progressed identically over a three-month period, constituted a violation and was a misrepresentation to Pekin Insurance Company, as it is medically improbable that two individuals of different height and size would present with the exact same complaints and progress at precisely the same time in a malpractice matter. The Board determined that this misrepresentation could only be determined to be intentional.

h. SK testified to receiving the following information from Respondent or his counsel:

Dr. Schillerstrom has advised me that the summary reports for each client are similar due to the fact that the patient's injuries and diagnosis were identical. The presentation, exam, and results were identical, and therefore rather than re-write the summary, he used the same form for both. This Chiro still hand writes everything and therefore elected to forego “re-writing” the identical info for both.

19. Furthermore, the Board when reviewing the treatment records for AS and SE, was unable to discern much of the handwriting that made up the treatment notes. Because it was illegible, its use in the patient’s further continuity of care was greatly diminished. It is undisputed that the records are nearly identical in content.

20. After the Board determined that the Respondent had committed unprofessional conduct and adopted violations of law, it moved to adopt discipline During the discipline discussion, the Board found that the Respondent had his license revoked in 1992 for submitting false insurance claims to an insurance company or companies that represented services performed. The Respondent was relicensed in 2000; however, he was placed on probation in 2003 after the Board found that for five patients, he billed for services not rendered, failed to create and maintain patient records, misrepresented that he had met the continuing education requirements for 2002 and gave false information to the Board regarding the location and availability of patient records in response to a subpoena.

21. Based on the matter before the Board and the thirty-year history of failing to comply with minimum practice standards and regulations, the Board voted this matter to hearing for revocation of Respondent’s license to practice chiropractic.

22. On February 28, 2024, the Board issued an Amended Complaint and Notice of Hearing setting a hearing on May 1, 2024, to determine whether grounds exist to impose discipline on Respondent’s license.

23. The hearing was continued to September 11, 2024.

24. At hearing, Respondent testified on behalf of himself. The Board presented the testimony of its Executive Director, Alissa Vander Veen.

25. Respondent stated that he was directed by the Board’s Deputy Director, Jaime Shapiro to strike out the work “Active” and write in “Probation” on the renewal application. Respondent testified that he originally submitted the renewal application in November of 2020 along with the required fee. Respondent stated that he never received correspondence from the Board that he submitted an improper renewal application. Respondent testified to the effect that all correspondence sent by the Board is usually signed by the author.

26. Respondent acknowledged that his handwriting can be more legible. Respondent stated that patients AS and SE had identical notes because both patients had the same diagnoses and they progressed in treatment in the same manner. Respondent stated that patients AS and SE were in the same auto accident and they were both sitting in the front seat of the car. Respondent stated that it was of no significance that the height of the two patients was significantly different. Respondent also submitted correspondence from the attorney representing patients where the patients clarified that Respondent provided proper treatment and that his notes are accurate.

27. Ms. Vander Veen stated that the Board notified Respondent in December of 2020 that his renewal application was inadequate. However, Ms. Vander Veen was not employed by the Board at the time that the letter was sent. The letter was not signed and Ms. Vander Veen had no first hand knowledge that the letter was sent, nor could Ms. Vander Veen testify regarding the Board’s administrative practices at the time.

CONCLUSIONS OF LAW

1. In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Respondent violated Ariz. Rev. Stat. § 32-924(A)(5) and (16); Ariz. Rev. Stat. § 32-923 (A) and (B), and that he is therefore subject to discipline pursuant to Ariz. Rev. Stat. § § 32-924(G). See A.A.C. R2-19-119.

2. A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

3. Ariz. Rev. Stat. § 32-924(A) sets forth 28 separate grounds upon which the

Board may impose sanctions against a licensee. The Board alleged two 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.

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.

4. The Board alleged that Respondent violated Ariz. Rev. Stat. § 32-93(B) that provides:

Except as provided in section 32-4301, every person who is licensed to practice chiropractic in this state shall annually make a renewal application to the board before the last day of the licensee's birth month after original issuance of a license and shall pay a renewal license fee of not more than $225 as established by the board. The renewal application shall be made on a form and in a manner prescribed by the board. At least thirty days before the renewal application and renewal fee are due, the board shall send by first class mail a renewal application and notice requiring license renewal and payment of the renewal fee.

5. The Board alleged unprofessional or dishonorable conduct as defined by four of those definitions, as follows:

R4-7-902(5) - Failing to create an adequate patient record that includes the patient’s health history, clinical impression, examination findings, diagnostic results, x-ray films if taken, xray reports, treatment plan, notes for each patient visit, and a billing record. The notes for each patient visit shall include the patient’s name, the date of service, the chiropractic physician’s findings, all services rendered, and the name or initials of the chiropractic physician who provided services to the patient.

R4-7-902(14) - Failing to timely comply with a board subpoena pursuant to A.R.S. § 32-929 that authorizes Board personnel to have access to any document, report, or record maintained by the chiropractic physician relating to the chiropractic physician’s practice or professional activities.

A.A.C. R4-7-902(16) - Allowing or directing a person who is not a chiropractic assistant and who is not licensed to practice a health care profession to provide patient services, other than clerical duties.

A.A.C. R4-7-902(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.

6. The preponderance of the evidence shows that Respondent engaged in unprofessional conduct that tends to discredit the profession, which is a violation of Ariz. Rev. Stat. § 32-924(A)(5) and (16).

7. The preponderance of the evidence shows that Respondent failed to comply with the terms of the Board’s order signed on January 24, 2019, which is a violation of Ariz. Rev. Stat. § 32-924(A)(16).

8. The preponderance of the evidence shows that Respondent failed to comply with the Board’s subpoena, which is a violation of A.AC. R4-7-902(14), and thereby Ariz. Rev. Stat. §§ 32-924(A)(5) and (16).

9. The Administrative Law Judge concludes that the preponderance of the evidence shows that Respondent violated A.A.C. R4-7-902(5), and thereby Ariz. Rev. Stat. §§ 32-924(A)(5) and (16), as shown in Finding of Fact 18.

10. The Administrative Law Judge does not conclude that Respondent violated Ariz. Rev. Stat. § 32-93(B) and A.A.C. R4-7-902(16). The preponderance of the evidence presented at hearing shows that Respondent timely submitted his renewal application. The Board failed to establish that it notified Respondent that the application that it received from Respondent in November of 2020 was inadequate. The preponderance of the evidence shows that the Board failed to process Respondent’s November 2020 renewal application until April of 2021.

11. Based on the violations of statutes found herein, grounds exist to impose discipline against Respondent’s license.

ORDER

On the effective date of the Order entered in this matter, Respondent Herbert L. Schillerstrom, D.C.’s license for the practice of chiropractic in the State of Arizona (No. 3847) shall be revoked.

Dr. Schillerstrom shall bear all costs of the investigation and hearing.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, October 1, 2024.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Alissa M. Vander Veen, Executive Director

Board of Chiropractic Examiners

Herbert L. Schillerstrom

[email redacted]

Joshua T. Greer Esq

Moyes Sellers & Hendricks Ltd

[email redacted]

Casey Hutchinson

Assistant Attorney General

Office of the Attorney General

[email redacted]

By: OAH Staff