ALJDEC

98F-98022-CEA · Board of Chiropractic Examiners · 1997-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 2, 1997

APPEARANCES: James M. McGee, Assistant Attorney General, for the State of Arizona; no one appeared on behalf of Respondent.

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This is a disciplinary action brought by the Arizona State Board of Chiropractic Examiners (Board) against Respondent Anna Marie Smith, D.C. for conduct that resulted in discipline against her New York State chiropractic license. As noted above, Dr. Smith was not present at the hearing and, therefore, presented no evidence on her behalf. Thus, the State’s evidence is uncontested. The State presented evidence and testimony at the hearing and, based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order that Respondent be disciplined. FINDINGS OF FACT 1. Respondent is holder of chiropractic license 04351, which she has held since 1987. Pursuant to A.R.S. § 32-923(B), every licensed chiropractor is required to renew the license annually. One of the questions that must be answered on the renewal application is whether another licensing board has initiated or taken disciplinary action against the renewal applicant. Respondent timely filed her 1997 renewal application on December 26, 1996. (Exhibit 1.) In her renewal application, Respondent disclosed that she had been disciplined by the State of New York, and attached portions of verifying documents. 2. Board staff sent for and received certified copies of the relevant documents from the Division of Professional Licensing Services, New York State Education Department (NYSED). (Exhibit 2.) These documents show that on November 14, 1995, NYSED issued a 15 page Statement of Charges against Respondent. That document charged Respondent with numerous occasions of fraudulently billing two insurance companies for three different patients. The allegations included billing for treatments that were not performed, billing two insurance carriers for the same treatments, and billing for treatments on days that the patients were not treated. On approximately November 12, 1996, Respondent proposed a consent order in which she agreed to admit a few of the charges (negligent billing errors on more than one occasion) and be put on probation for one year. She also proposed that her license be suspended, but that the suspension be stayed pending her completion of probation. Respondent also agreed to pay a $2500.00 fine. The proposal was accepted on March 11, 1997. (Exhibit 2.) 3. In response to the Board’s Complaint and Notice of Hearing in this matter, Respondent sent a letter to the Board. She stated that her license was not actually suspended and that the charges in New York were caused by equipment failure. Specifically, Respondent stated that the computer floppy disks that her billing information was stored on were placed too close to a desktop magnet that held paper clips. Respondent states that the magnetic field transposed and distorted the data on the disks. She also noted that she discovered the errors and rectified the situation. She does not explain why she admitted wrongdoing when, according to her letter to the Board, she made an innocent mistake. 4. Respondent’s explanation is not credible and is unsupported by common sense. Further, Respondent’s failure to appear and testify at the hearing in front of this tribunal, reflects adversely on her story. CONCLUSIONS OF LAW 1. The State bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Complaint and Notice of Hearing. Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). The State has met that burden for each of the two alleged violations. 2. A.R.S. § 32-924(B)(14) sets as a ground for disciplinary sanction the refusal, revocation, or suspension of a license by another jurisdiction. Legally, Respondent’s New York license has been suspended, even though the suspension did not take effect. To hold otherwise would render useless the suspension language in the New York Consent Order (included in Exhibit 2). The Consent Order could simply have placed Respondent’s New York license on probation without the suspension, but it did not. This tribunal must give effect to each provision of the Consent Order. Respondent’s reading of the Consent Order does not do so and is rejected. 3. A.R.S. § 32-924(B)(5) prohibits “[u]nprofessional or dishonorable conduct of a character likely to deceive or defraud the public or tending to discredit the profession.” The facts in this case support a conclusion that Respondent has violated that provision by falsely billing for her services as admitted in the New York Consent Order. 4. The State offered no evidence regarding any prior disciplinary action against Respondent’s Arizona license; therefore, this tribunal must assume that there is none. In that case, it is recommended that the sanctions imposed by the Board be no greater than those imposed by the jurisdiction more directly affected, New York. RECOMMENDED ORDER IT IS RECOMMENDED that license 04351, issued to Respondent Anna Marie Smith, D.C., to practice chiropractic in the State of Arizona, be placed on probation for a period of twelve months, commencing upon Respondent’s practicing as a doctor of chiropractic within the borders of the State of Arizona and tolling during any period in which Respondent does not practice within the borders of the State of Arizona. IT IS FURTHER RECOMMENDED that the terms of probation include the following: 1. Respondent shall strictly comply with the statutes and rules governing the practice of chiropractic in the State of Arizona. In the event Respondent violates, during the probationary period, any provision of the law regulating chiropractic, the Board shall take Respondent’s probationary status into account when determining an appropriate sanction.

2. Respondent shall allow Board staff or a Board investigator immediate and unannounced access to her Arizona office(s) and her files, including patient and billing files. A complaint against Respondent shall not be a prerequisite for the Board to investigate her files or office during the probationary period.

3. Upon the expiration of the probationary period and her successful completion of its terms, Respondent shall petition the Board for an order ending the probation and placing her license back to regular status. Until such an order is issued by the Board, Respondent’s probation shall continue.

. . .

IT IS FURTHER RECOMMENDED that the Board include any other probationary terms that it feels are necessary to protect the public.

Done this 5th day of January 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Eric A. Bryant Administrative Law Judge

Original mailed this ___ day of January 1998, to:

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

By ___________________________ -----------------------

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826