STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICAL )

EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0872

)

ALFONSO RODRIGUEZ-CUELLAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell held a public hearing in this case on September 25, 1986, in Miami, Florida. The parties were granted leave through November 15, 1986, to submit memoranda supportive of their respective positions. The parties submitted proposed Recommended Orders which were considered by me in preparation of this Recommended Order. Proposed findings and conclusions which are not incorporated in this Recommended Order are the subject of specific rulings in an Appendix to the Recommended Order in this case.

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

Colodny, Fass & Talenfeld, P.A. 626 Northeast 124 Street

North Miami, Florida 33161

For Respondent: Franz A. Arango, Esquire

1999 Southwest 27th Avenue Miami, Florida 33145

ISSUE

The issue presented for decision herein is whether or not Respondent's license should be disciplined based on conduct, set forth hereinafter in detail as contained in an Administrative Complaint filed herein dated February 14, 1986.

INTRODUCTORY STATEMENT

By Administrative Complaint dated February 14, 1986, Petitioner alleged that Respondent, while a licensed physician in the State of Florida, presigned blank prescriptions which prescriptions were later completed by one Dr. Jorge Horstmann in violation of Section 458.331(1),(aa), Florida Statutes. The complaint also alleged that Respondent never examined the alleged patient, Vivian Perez, who was an undercover operative, nor did the Respondent maintain

any patient records for the treatment and thereby violated Section 458.331(1)(q), Florida Statutes, by failing to keep written medical records justifying the course of treatment and by prescribing a legend drug other than in the course of the physician's professional practice; that Respondent committed gross or repeated malpractice or failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances in violation of Section 458.331(1)(t), Florida Statutes.

The Administrative Complaint further alleged that Respondent billed medicaid for various visits for the undercover operative, as well as fictitious children, and made or filed reports with Medicaid which the Respondent knew to be false and thereby failed to perform statutory or legal obligations placed upon a licensed physician in violation of Sections 458.331(1)(1) and 817.234, Florida Statutes.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received during the hearing and the entire record compiled herein, I hereby make the following relevant factual findings.

   
   

2. Respondent, Alfonso Rodriguez-Cuellar is, and has been at times material hereto, a licensed physician in the State of Florida having been issued license number MME002856.

   
   

3. During June, 1983, Respondent shared office space with Dr. Jorge Horstmann who was at the time, not a licensed medicaid provider.

   
   

4. Respondent was licensed as a medicaid provider during times material and was so licensed during June, 1983.

   
   

5. During June, 1983, an investigation was undertaken by the State of Florida Auditor General's Office and as a result of that investigation, Special Agent Vivian Perez visited Respondent's office and requested to be attended by Dr. Horstmann. At the time, Special Agent Perez presented the receptionist, Emerson Figeuroa, her Medicaid card listing herself and (3) fictitious children as medicaid recipients.

   
   

6. During that visit, four (4) Medicaid files were prepared by office staff and Special Agent Perez was seen by a person who identified himself as Dr. Horstmann.

   
   

7. Dr. Horstmann appeared and testified in these proceedings and acknowledged that he, in fact, treated Special Agent Perez.

   
   

8. Dr. Horstmann did not examine Agent Perez. Dr. Horstmann was carrying a prescription pad while he attended to Agent Perez and Agent Perez observed Dr. Horstmann complete prescriptions from the pad with the exception of the signatures. (Petitioner's Composite Exhibit 1).

   
   

9. Dr. Horstmann left the room where he was attending Agent Perez. When he returned, they were signed by Respondent. Agent Perez was then given the prescriptions and she took them to a pharmacy and filled them by purchasing non- pharmaceutical items. (TR 89-92).

10. Emerson Figeuroa was employed by Respondent as a medical assistant and receptionist since approximately 1982. Ms. Figeuroa denied that Respondent presigned prescriptions for Dr. Horstmann and contends that records are maintained for all of Respondent's patients. Ms. Figeuroa recognized Respondent's signature on two prescriptions received in evidence as being Respondent's signature. (Respondent's Exhibit 1 and 2). At the same time, Ms. Figeuroa denied that Respondent's signature appeared on prescriptions introduced which were the prescriptions given to Agent Perez.

    
    

11. Hugh Fitzpatrick, a medical investigator for Petitioner, interviewed Respondent during June of 1983. Investigator Fitzpatrick's main concern was whether Respondent was presigning prescriptions for Dr. Horstmann. Investigator Fitzpatrick inquired of Respondent regarding that claim and Respondent admitted that he signed the prescriptions given to Agent Perez for Dr. Horstmann; that he signed the prescriptions as a friend and that he knew that Dr. Horstmann had been licensed and simply had not been provided with the documentation reflective of the fact that he (Dr. Horstmann) had been licensed as a Medicaid Provider.

    
    

12. Respondent testified on his own behalf and openly admitted that the signatures on the prescriptions provided to Agent Perez were his although he questioned the "MD" next to his signature. (TR 58-60).

    
    

13. Respondent also conceded that he never treated a patient by the name of Vivian Toledo (a/k/a Vivian Perez); he had no medical records for Toledo (Perez) or her children and acknowledged that he medically treat a large volume of patients, a great majority of which are Medicaid recipients.

    
    

14. Respondent conceded that he received a check from Medicaid for $1,900 reflecting payment for the medical treatment of a large number of medicaid patients. Respondent conceded that although he signed the medicaid forms, the forms are prepared by other office personnel. Respondent usually does not verify the names of the individuals on the list to ascertain if he, in fact, treated each patient listed before he executes the form requesting payment from medicaid. (TR 64 and 86). Respondent is duty bound to ensure that he only bills medicaid for patients that he has, in fact, treated.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administration Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

    
    

16. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

17. The authority of the Petitioner is derived from Chapter 458, Florida Statutes. Specifically, that Chapter authorizes the Petitioner to suspend, revoke, or impose an administrative fine against a licensee. Section 458.331(2), Florida Statutes.

    
    

18. Competent and substantial evidence was offered herein to establish that Respondent presigned blank prescriptions in violation of Section 458.331(1)(aa), Florida Statutes.

    
    

19. Competent and substantial evidence was offered herein to establish that Respondent never examined Special Agent Perez nor did he maintain any patient records for treatment of Special Agent Perez. However, Respondent

    admits, and the evidence substantiates the fact that he did not treat Agent Perez or any of the "Toledo" (Perez) family members. For that reason, insufficient basis exist to conclude that Respondent unlawfully failed to maintain patients records or as having failed to practice medicine with the requisite care, skill and treatment because he did not treat these patients at all.

    
    

20. Competent and substantial evidence was offered herein to establish that Respondent, by making and filing a report with medicaid which Respondent knew to be false, engaged in conduct within the purview of Section 458.331(1)(i), Florida Statutes. As such, Respondent engaged in the making of deceptive, untrue and fraudulent representations in the practice of medicine in violation of Section 458.331(1)(1), Florida Statutes.

    
    

21. Competent and substantial evidence was offered herein to establish that Respondent, by billing Medicaid for treating fictitious children and Special Agent Perez, when, in fact, the Respondent did not treat any of the "Toledo" or Perez family members, engaged in conduct violative of Sections 458.331(1)(h) and 817.234, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that Respondent's license be suspended for a period of (30) days.

It is further recommended that the Board impose an administrative fine against Respondent in the amount ($2,000).

Recommended this 10th day of February, 1987, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

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 10th day of February, 1987.

COPIES FURNISHED:

Joel S. Fass, Esquire

Colodny, Fass & Talenfeld, P.A. 626 N. E 124 Street

North Miami, Florida 33161

Franz A. Arango, Esquire 1999 S. W. 27th Avenue Miami, Florida 33145

Dorothy Faircloth, Executive Director

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000872

Orders for Case No: 86-000872