Dept. of Health prosecution charges called ‘outrageous’
Florida’s health boards face a revolt by doctors, dentists and others refusing to pay what they call “outrageous” costs for their own prosecution in the wake of an appeals-court ruling.
While the Department of Health seeks court resolution of the issue, two boards meeting today are stuck in legal limbo.
The Board of Dentistry, meeting in St. Augustine, will hear from an angry dentist who was charged $40,000 by DOH in a minor case involving faulty record-keeping.
Meanwhile, the Board of Medicine, meeting in Kissimmee today and Saturday, agreed to postpone decisions on costs if doctors contest them, pending a review.
DOH Deputy General Counsel Renee Alsobrook told members she hopes to get a reversal of the court decision that has cast a pall over the agency’s cost-assessment process.
“This is a dramatic ruling” that could have an annual impact on DOH of $11 million if not overturned, she said.
Prove it, court tells DOH
The case that threw DOH for a loop was that of Certified Nursing Assistant Fedeline Georges, who appealed a Board of Nursing finding that she was guilty of “unprofessional conduct,” as Health News Florida reported in November.
In its ruling Nov. 2, 2011, the 2nd District Court of Appeal in Lakeland agreed the penalty was too harsh, but it was another matter altogether that lit a fuse.
The court said DOH – which is legally allowed to recoup the cost of investigation and prosecution – has to show that its charges are accurate and reasonable. Georges had been charged more than $15,000.
In the wake of the Georges decision, Alsobrook told the medical board today, DOH had to pay two outside lawyers to go over DOH’s bills and verify they were reasonable.
So far, the outside counsels have upheld DOH’s charges, she said, but the fee for reviewing the bill often exceeds the bill itself.
Alsobrook said DOH hopes to get another appellate court to offer a contrasting view so that the Florida Supreme Court could be asked to resolve the issue. But all that takes time.
Meanwhile, the boards have to decide what to do about the disciplinary cases that face them today. The medical board decided it can proceed to accept negotiated settlements in which the accused doctor has already agreed to cover the DOH costs.
But if there is no signed agreement, Chairman Jason Rosenberg said, the question of costs will be tabled until DOH can produce an affidavit showing they are deemed reasonable by an independent expert.
The case that cost $40,000
It was unclear this morning what the Board of Dentistry will do in the case of Venice dentist Alexander Gaukhman, who was assessed over $40,000 in DOH costs for investigation and prosecution in a case that turned out to be minor.
Administrative Law Judge William Quattlebaum, who took testimony in the DOH complaint against Gaukhman involving his care of a patient in 2006, issued a finding three months ago saying the dentist was guilty of failing to keep adequate records.
But the case involved just one patient and two dental appointments, Quattlebaum said, and no harm was done. He said Gaukhman presented no danger to the public.
Quattlebaum recommended that the Board of Dentistry impose a $2,500 fine and order Gaukhman to take a course on record-keeping. His opinion did not deal with the costs in the case, which have been reported at varying levels of $39,250 or more.
Most of the costs are for legal fees. At various times, the DOH attorneys who worked on the case were Jamie Ito, who left the agency in October 2007; Wayne Mitchell, and George Black. DOH said it did not charge for supervising attorneys.
Because of the Georges opinion, DOH hired an outside legal expert, Richard Doran of Tallahassee, to determine whether its assessed costs were reasonable. Doran served as chief deputy attorney general of Florida for five years and even as Attorney General on an interim basis before joining the Ausley & McMullen law firm in 2003.
After reviewing the DOH charges, Doran signed an affidavit saying they were reasonable. (He declined to discuss the matter with a reporter, citing his role as a witness).
Gaukhman’s attorney, Max Price of Miami, objected that if you divided the number of hours into the total charged, the DOH staff would have salaries many times higher than the amount they actually receive.
On Jan. 18 via telephone conference, state documents show, the dental board upheld Quattlebaum’s findings and went along with his proposed penalty. But it deferred action on whether Gaukhman should have to pay DOH’s assessment of costs.
Price, Gaukhman’s attorney, asks that the board throw out the DOH bill. In his motion, he argued: “It is evident to even the casual observer that such an assessment is grotesque, outrageous and grossly disproportionate” to the offense.
-- Health News Florida is an independent online publication dedicated to public-service journalism. Editor Carol Gentry can be reached at 727-410-3266 or by e-mail.