STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2576

) 82-1730

ALINA M. BUDEJEN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in the above matters on, October 7, 1982, in Miami, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Joseph W. Lawrence

Tallahassee, Florida

For Respondent: John Radey

Tallahassee, Florida

On or about September 4, 1981, the Department of Professional Regulation issued an Administrative Complaint against the Respondent, Alina M. Budejen, M.D., a licensed physician. The Respondent disputed the allegations of the complaint, and the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on February 5, 1982, by notice dated November 17, 1981. The hearing was continued on motion of the Petitioner in order that the parties could pursue settlement negotiations. The hearing was rescheduled to be conducted on July 1, 1982. Petitioner moved for a continuance of the hearing scheduled for that date, and the final hearing was ultimately rescheduled to be conducted as set out above by notice dated September 3, 1982. During the course of the proceeding before the Division of Administrative Hearings, Petitioner filed an Amended Administrative Complaint. The amended complaint alleges the same factual allegations as the original complaint, but alleges that the conduct constitutes violations of statutory provisions that had not been set out in the original complaint. The matter has been designated as Case No. 81-2576 before the Division of Administrative Hearings.

On or about May 27, 1982, the Department of Professional Regulation issued a separate Administrative Complaint against the Respondent. The Respondent disputed the allegations of the complaint and requested a formal hearing. The matter was forwarded to the office of the Division of Administrative Hearings, and a hearing was scheduled to be conducted as set out above by notice dated July 23, 1982. The matter has been designated as Case No. 82-1730 before the Division of Administrative Hearings.

During the course of these two proceedings, the Respondent filed Motions to Dismiss the Administrative Complaints. The motions were denied. At the final hearing, the matters were formally consolidated for the purposes of the hearing. There are facts and legal conclusions which are common to the two matters, and other facts and conclusions of law which are not common to them. The Findings of Fact and Conclusions of Law which follow are divided so that findings and conclusions which pertain only to Case No. 81-2576 are separately stated, and findings and conclusions which relate only to Case No. 82-1730 are separately stated. This order contains separate recommendations respecting the two matters.

At the final hearing, the Petitioner called the following witnesses in support of the allegations in the complaint in Case No. 81-2576: Gerry Hendry, the Administrative Assistant to the Executive Director of the Board of Medical Examiners; and Ronald Myers, an investigator employed with the Department of Professional Regulation. Petitioner called the following witnesses in support of the allegations set out in the Administrative Complaint in Case No. 82-1730: Albert Brown, a former patient of the Respondent; Kathleen Swisher, a supervisor in the Utilization Review Section of Blue Cross/Blue Shield of Florida, Inc.; and Robert G. Wolf, an investigator employed with the Department of Professional Regulation. The Respondent testified as a witness on her own behalf in connection with both administrative proceedings and called Daniel L. Guzy, a licensed chiropractor, as a witness with respect to Case No. 82-1730.

Petitioner's Exhibits 1, 2 and 4 through 10 were offered into evidence and received at the hearing. Ruling upon the admissibility of Petitioner's Exhibit

3 was deferred. For the reasons set out in the Conclusions of Law which follow, Petitioner's Exhibit 3 has been received into evidence Respondent's Exhibits 2 through 5 were offered into evidence and received. Respondent's Exhibit 1 was identified during the course of the hearing, but was neither formally offered nor received. It has not become a part of the record.

The parties have submitted proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are specifically set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.

ISSUE

The ultimate issues to be resolved in these proceedings are whether the Respondent has committed violations of statutory provisions relating to the practice of medicine and, if so, the appropriate penalty that should be imposed. The allegations in Case No. 81-2576 are that the Respondent signed an affidavit to the effect that another individual had graduated from a medical school and practiced medicine, when in fact the information was false and the Respondent had no knowledge of the facts. Respondent contends that her signing of the form under the facts of this case does not constitute a violation of any statutory provisions. In Case No. 82-1730, it is alleged that the Respondent submitted a

false statement of claim to receive reimbursement for services rendered to a Medicare patient. Respondent contends that to the extent the statement of claim that she submitted was in error, the error was the result of a mistake rather than any fraudulent practice.

FINDINGS OF FACT

1. At all material times, the Respondent has held a license issued by the Board of Medical Examiners to practice medicine in the State of Florida. The Respondent was born in Cuba. She received her medical degree and completed her medical internship in Cuba. She escaped from Cuba in 1973 and came to the United States. She has been licensed to practice medicine in Florida since on or about September 13, 1978. It does not appear that the Respondent has been the subject of any disciplinary action brought by the Petitioner prior to these proceedings.

   
   

   Findings of Fact Respecting Case No. 81-2576:

   
   

2. Sometime prior to March 5, 1980, the Respondent met Richard Hervis at a seminar she was attending. On March 5, Hervis asked the Respondent to sign a form for him. He told her that he needed to use the form in order to clear up some paperwork that he was having difficulty with in the Dominican Republic. Hervis told her that he had attended medical school in the Dominican Republic and practiced medicine there and that he was having trouble getting his records in the Dominican Republic straightened out. Another physician who also attended the seminar told the Respondent that he had seen Hervis's diploma from the medical school in the Dominican Republic. The Respondent signed the form. A copy of the form that the Respondent signed is attached to this Recommended Order as an appendix.

   
   

3. The form is designated "Form B-1." It is directed to the Director of the Office of International Medical Education at the University of Miami School of Medicine. The form was developed and used by the Florida State Board of Medical Examiners in order to verify the education and experience of Cuban physicians. The form served to allow Cuban physicians to be certified to take a continuing education course at the University of Miami. Successful completion of the course would allow an applicant for licensure to take the examination administered by the Board of Medical Examiners. If successful on the examination, the applicant would be eligible for licensure as a physician in Florida. The Respondent was familiar with the form. Several were filled out on her behalf when she applied for licensure in Florida. Hervis told the Respondent, however, that he was using the form for a separate purpose, that being to clear up his records in the Dominican Republic. At the time that the Respondent filled out the form, several of the blank spaces on it had not yet been filled in. Furthermore, the form had not been notarized. Hervis advised the Respondent that since he was using the form in connection with his records in the Dominican Republic, he did not need to have the form notarized.

   
   

4. After the Respondent signed the form, Hervis, or someone acting on his behalf, filled in the blanks with dates that would support his eligibility for licensure as a physician in Florida and had the form notarized. On March 12, 1980, Hervis submitted the form along with an application for licensure to the Florida State Board of Medical Examiners. As submitted to the Board, the affidavit appears to be a sworn statement from the Respondent certifying that Hervis graduated from a university in the Dominican Republic and was engaged in the practice of medicine in the Dominican Republic. The form further certifies that the Respondent was acquainted with Hervis since 1970 and that she was

   engaged in the practice of medicine in the Dominican Republic during the years 1970 to 1979. The Respondent actually knew nothing of Hervis's schooling or medical experience, and she never practiced medicine in the Dominican Republic. Hervis was not in fact a graduate of the Dominican university as set out in the affidavit.

   
   

5. At the time Respondent signed the form, it did not contain all of the statements that were included when it was submitted to the Board of Medical Examiners. It was not intended by the Respondent that the form be used by Hervis in support of an application to the Board of Medical Examiners. It was not her intention to assist Hervis in obtaining licensure as a physician in Florida. Her only intention was to do Hervis a favor by assisting him to clear up his records in the Dominican Republic. While the signing of the affidavit with blank spaces on it was clearly careless, it was not done with any intention to commit a fraud or to mislead anyone, although that would appear to have been Hervis's intention.

   
   

6. Based upon his application for licensure which included the affidavit, Hervis was certified to sit for the examination for licensure. He failed to pass the examination by a small margin. In the meantime, the Board of Medical Examiners learned that he apparently was not eligible for licensure. Hervis has never become licensed to practice medicine in Florida. His present whereabouts are unknown.

   
   

   Findings of Fact Respecting Case No. 82-1730:

   
   

7. The Respondent maintains regular office hours at a clinic known as the "Wholistic Health Center" located in Tamarac, Florida. The clinic follows a philosophy of healing that is cross-disciplinary. The practices of medicine, chiropractic, physical therapy, and other techniques are utilized. A chiropractic physician, Daniel L. Guzy, is the principal person who operates the clinic. When the Respondent is present at the clinic, she uses the clinic's offices and personnel, including Guzy, and the clinic's equipment. The clinic frequently services Medicare patients. Chiropractors are able to directly bill the Medicare system only for chiropractic adjustments that they perform. If other techniques, such as physical therapy techniques, are employed, these services must be billed by a physician. If a physician uses a therapist to perform these services, the physician would be responsible for paying that person.

   
   

8. Albert Brown, then age 70, was injured in a fall from a ladder on September 13, 1981. The injuries caused him severe pain; and on the suggestion of a neighbor, he decided to visit a chiropractor. The Wholistic Health Center was located in the same shopping center where Brown maintained his business, a travel agency. On September 14, Brown contacted Guzy and arranged to visit the clinic. When Brown visited the clinic, he met Guzy, who conducted a thorough examination. Brown was interested in receiving medication for the pain that he was suffering. The Respondent was present at the clinic when Brown first visited it. After Guzy examined the patient, he consulted with the Respondent about appropriate treatment. The Respondent saw Brown and took a patient history. She diagnosed him as having suffered spinal nerve damage and devised a plan of treatment which included a prescription for the drug Percodan to alleviate pain, X rays, and physical therapy. She specifically directed that three sets of x rays be taken and that twelve sessions of physical therapy be

   scheduled. She communicated her diagnosis and recommended treatment to Guzy and gave the prescription to Brown. Brown signed a "Request for Medicare Payment" form. He returned to the clinic on September 15, 17, and 22. On these occasions, he received physical therapy treatments from Guzy and chiropractic treatments from Guzy.

   
   

9. Guzy billed Medicare directly for the chiropractic treatment that he administered. The Respondent billed Medicare for her examination of Brown, the X rays that she directed be taken, and the physical therapy treatments that she prescribed. Brown became dissatisfied with the treatment program and did not complete the physical therapy sessions. Because of that, all of the X rays that the Respondent directed were not taken. In fact, only one set of X rays was taken.

   
   

10. The bill that the Respondent submitted to Medicare included charges for the initial office visit, three sets of X rays, and three physical therapy treatments. The bill was prepared by a billing service utilized by the clinic and signed by the Respondent. It appears that the charges for three sets of X rays were the result of an understandable mistake. The Respondent did direct that the X rays be taken, but they were not. They were not taken in part because the patient was suffering severe pain, and in part because he did not complete the therapy program. The bill could be read in such a manner as to reflect treatment for "diabetes" and "headaches." In fact although the conditions were part of the Respondent's diagnosis, based on the patient's history, they were not the conditions for which the patient was treated. The "Procedure Code" on the bill sent to Medicare substantiates that the bill that was submitted was for an office visit, X rays, and physical therapy sessions.

    
    

11. When Brown received a copy of the bill that was submitted to Medicare, he read it and was persuaded that Medicare was being billed for services that were not rendered. He complained to the Blue Cross/Blue Shield office which administers Medicare claims. The Respondent's bill was paid by Medicare, but she was asked to return most or all of it, which she did. It appears that the only portion of the bill to Medicare that was in error is the bill for three sets of X rays. That error was the result of a mistake, and not the result of any effort by the Respondent to commit any fraud or misrepresentation. It appears that the physical therapy administered by Guzy was undertaken on the Respondent's instruction and authorization. Although she was not present physically while that therapy was administered, it was done clearly at her direction.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

    
    

13. The Respondent has contended in each of these proceedings that the Board of Medical Examiners is without authority to impose any disciplinary sanction because it has not adopted guidelines either through rule making or through evidentiary presentation. It is apparent that the Board of Medical Examiners has adopted no rules setting forth policies for imposing disciplinary sanctions. The Board is not required to adopt such rules. See: Katz v.

    Florida State Board of Medical Examiners, 405 So.2d 465 (1 DCA Fla. 1981). Since it has not adopted such rules, the Board is required to adopt findings of fact or statements of policy which would support whatever disciplinary action it deems appropriate. The Board cannot be found to have violated that obligation prior to the time that it enters a final order.

    
    

    Conclusions of Law Respecting Case No. 81-2576:

    
    

14. The Respondent filed a Motion to Dismiss the Administrative Complaint on the grounds that the complaint does not adequately allege violations of the cited statutory provisions. The motion was denied by Order entered March 31, 1982. The Order Denying Motion to Dismiss is hereby incorporated into this Recommended Order.

    
    

15. During the course of the hearing, the Petitioner offered an application from the custodian of the academic records at the "Central University of the East" located in the Dominican Republic. The affidavit, together with a translation, was offered as Petitioner's Exhibit 3. Ruling upon the admissibility of the exhibit was reserved. It appears that the affidavit satisfies the requirements of Section 90.902(3), Florida Statutes, for the authentication of official foreign documents. It appears that the document was executed by a person in her official capacity. While the affidavit is not accompanied by a certification by an official of the United States, it appears that the parties have had reasonable opportunity to investigate the authenticity and accuracy of the document and that the requirement should not operate to exclude the document from evidence. Accordingly, Petitioner's Exhibit 3 is hereby received.

    
    

16. In the Administrative Complaint as amended, it is alleged that the Respondent's signing of the form for Hervis constitutes a violation of the provisions of Sections 458.331(1)(a), (g), (i), and (l), Florida Statutes. The allegations are not sustained by the evidence. Sections 458.331(1)(a) and (g) provide that disciplinary action may be based upon the following acts:

    
    

    1. Attempting to obtain, obtaining, or renewing a license to practice medi- cine by bribery, fraudulent misrepre- sentations, or through an error of the department or the board.

       (g) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.

       
       

       When the Respondent signed the form for Hervis, it was not her intention to assist him in procuring a license or to practice medicine. Rather, she was seeking to assist him with what she was told was a record-keeping problem in the Dominican Republic. By signing the form with spaces blank, the Respondent unwittingly assisted Hervis in Hervis's attempt to obtain a license to practice medicine for which he was not qualified. Clearly, the Respondent's signing the form was foolish and could have had unfortunate consequences. In order to violate provisions of statutes relating to fraud and misrepresentation, however, the action must be done willfully and intentionally. Gentry v. Department of Professional and Occupational Regulation, 293 So.2d 95 (1 DCA Fla. 1974). The evidence does not sustain such a finding in this matter.

17. In pertinent part, Section 458.331(1)(i) provides that disciplinary action can be taken for "making or filing a report which the licensee knows to be false . . . Such reports or records shall include only those which are signed in the capacity as a licensed physician." It does not appear that the false representations in the Hervis form were made by the Respondent. Rather, the false representations were made by Hervis, or someone else acting on his behalf. Although the Respondent unwittingly gave Hervis an opportunity to commit such a fraudulent act, it was not her intention to do so.

    
    

18. Section 458.331(1)(l) provides that the following acts constitute grounds for taking disciplinary action:

    
    

    Making deceptive, untrue, or fraudu- lent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.

    
    

    Again, it was not the Respondent who made the deceptive, untrue, or fraudulent representation. It was Hervis. It was not the Respondent who employed any trick or scheme, but rather Hervis. The evidence would not sustain a conclusion that the Respondent violated the provisions of the statute.

    
    

    Conclusions of Law Respecting Case No. 82-1730:

    
    

19. It is alleged in the Administrative Complaint in Case No. 82-1730 that the Respondent's action in filing a claim with Medicare for services rendered to Albert Brown constitutes violations of the provisions of Sections 458.331(1)(l), (o), (j), and (x), Florida Statutes. These allegations are not supported by the evidence, The only portion of the Respondent's bill which was unjustified was for three sets of X rays rather than a single set. It appears that the bill for these services was based upon an understandable error. The Respondent did order three sets of X rays, and it was only because Brown did not complete the treatment program that the three sets were not taken. It does not appear that the bill was fraudulent, that the Respondent exercised any influence over Brown in such a manner as to exploit him, or that the Respondent paid or received any commission, bonus, kickback, or rebate.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

1. That a final order be entered by the Board of Medical Examiners in Division of Administrative Hearings Case No. 81-2576 dismissing the Administrative Complaint filed by the Department of Professional Regulation.

   
   

2. That a final order be entered by the Board of Medical Examiners in Case No. 82-1730 before the Division of Administrative Hearings dismissing the Administrative Complaint filed by the Department of Professional Regulation.

RECOMMENDED this 24th day of January, 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1983.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

John Radey, Esquire Holland & Knight

Post Office Drawer 810 Tallahassee, Florida 32302

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Dorothy Faircloth Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002576

Orders for Case No: 81-002576