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Legal opinion forces dental board to drop fraud charges

Professional boards have always held doctors and dentists responsible for filing accurate claims and honest bills. Deliberate overcharges or fraud could end a career.

Now a legal opinion in a South Florida dental case has placed that assumption in question. It has forced dismissal of fraud charges against two dentists, including one who came before the Board of Dentistry Friday in Panama City: Ben Mac-Ryan Spivey.

(Update: The board accepted the settlement, with a minor exception. While it wasn’t what the Board of Dentistry wanted to do, said its chairman Wade Winker, it was the best the state could hope for.

“I have to look in the mirror at the end of the day and after handling a case like this. it’s difficult. I feel like I need to shower,” said Winker, a dentist from Eustis. “As much as it breaks my inner being to make this recommendation … I think we have a reasonable settlement agreement in front of you. My suggestion would be we accept this settlement agreement and move on.”)

Spivey operated six clinics in Ocala and The Villages until patient complaints led him to withdraw from practice, under threat of suspension, in 2010.

Then and several times since, dental board members have said they want to revoke his license for poor quality care and cheating  patients. But Spivey has contested every accusation, and he seems to be winning.

The Department of Health, which investigates and prosecutes cases for the professional boards, has agreed to a settlement that will allow Spivey to return to practice in July on probation, after paying a stiff fine.

If the board adopts that settlement, Spivey has Francisco Fonte to thank.

Fonte, who owned a multi-dentist practice in Royal Palm Beach, was arrested in 2010 along with his office manager and another employee, according to media accounts at the time.

They were all accused of insurance fraud, of taking out CareCredit applications in patients’ names to cover inflated costs of dental work without patients’ consent. The practice manager was also accused of using forged prescriptions to traffic in painkillers.

Fonte persuaded authorities he was not on the premises often and knew nothing of what was going on. Criminal charges against him were dropped in October 2010, records show.

Nevertheless, health officials pressed administrative charges of fraud, substandard care and poor record-keeping, putting his license at risk.

Licensed health professionals accused of wrongdoing usually try to reach a settlement with DOH prosecutors, if only to hold down their legal fees. Some seek an informal hearing before the board to explain how they erred and ask for mercy.

But if they contest the charges, the case goes to the Division of Administrative Hearings. Fonte’s hearing before Administrative Law Judge John Van Laningham was in early March 2011.

In an opinion issued in May, Van Laningham said that even if Fonte’s employees committed fraud or provided substandard care, he was not to blame.

Van Laningham wrote that the disciplinary statute “does not unambiguously subject a licensee to punishment for the acts of another person,” even if that person is an employee. He recommended dismissal of all charges.

In August, when Fonte’s case came before the Board of Dentistry in Tampa, members wrung their hands but followed the hearing officer’s recommendation. They had already spent over $160,000 in legal fees on the case, records show.

One called it “truly unfortunate,” another “appalling.”

“This is one of the most embarrassing cases I’ve heard since I’ve been on the board,” said Carl Meltzer. “But we’re stuck with the decision this judge made.”

Today, Spivey’s case may give the board déjà vu.

Like Fonte, he was originally accused of fraud, substandard care and poor record-keeping. And some of Spivey’s patients complained that the staff pushed them into credit applications to cover elaborate treatment plans of $10,000 or more.

Just as in Fonte's practice, one of Spivey's business office employees -- the one who allegedly handled the finances -- was arrested on charges of falsifying prescriptions for narcotics, according to Spivey's attorney Richard J. Brooderson. Spivey discovered the fraud and fired her, according to a letter the attorney sent the board last June.

The employee, identified in the letter as Bobbee Masluk, may have been responsible for the billing issues that led Spivey to be accused of fraud, Brooderson said. Therefore, he argued, those charges should be dropped.

And that is what happened. The administrative complaints that involved charges of fraud have now been amended to exclude them. The six cases pending against Spivey today involve either standard-of-care or record-keeping violations.

Patients accused Spivey of making bridges and dentures that didn’t fit, pulling teeth that didn’t need to go, leaving part of a tooth behind, and failing to use sterile  technique, thus causing an infection. 

The patients filed complaints with the state, they said, because when they went to Spivey to tell him of their problems, he didn’t offer to fix them. In some cases, they said, they were charged for work that was never completed.

One elderly woman said her retired husband had to go back to work to pay off all her dental bills.

Marilyn McCarthy, a retiree from The Villages, told Health News Florida last year that she had paid $18,900 for work that was incomplete. Spivey put in screws for implants but withheld the implants, she said, holding out for more money. She also said Spivey cracked one of her teeth, which she was going to have to have pulled.

“I don’t have enough money now to fix my teeth,” she said at the time.

If the board approves the settlement that Spivey’s attorneys reached with DOH, he will be required to reimburse the patients for what they spent, pay a $47,000 fine, and cover the state's $32,000 in costs, mostly for legal fees.

He will technically have a three-year suspension, but it will be retroactive to 2010, when he voluntarily stopped practicing. The third year of suspension would be stayed if Spivey meets all the educational and community service requirements and satisfies the dentist monitoring his practice.

Spivey, who graduated from the University of Florida College of Dentistry in 2003, returned there to study after withdrawing from practice, enrolling in a 25-month, 600-hour course.

Assistant Dean James Haddix, in a March 9 letter to the board, said Spivey has been an enthusiastic class participant and is scheduled to complete the course this summer.

While unable to practice dentistry, Spivey has been acting as director of business development at GTS Ventures, a consulting and management firm in The Villages.