Judges: DON W. DAVIS
Agency: Department of Health
Latest Update: Mar. 03, 1989
Summary: Conviction of Medicare fraud subjected physician to license suspension.
88-2270.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 88-2270
)
HOOSHANG HOOSHMAND, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on December 6-7, 1988 in Vero Beach, Florida. The following appearances were entered:
APPEARANCES
FOR PETITIONER: Jonathan King, Esq.
Stephanie Daniel, Esq. Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
FOR RESPONDENT: Joesph C. Jacobs, Esq.
Melissa Fletcher Allaman, Esq.
305 South Gadsden Street
P.O. Box 1170
Tallahassee, Florida 32302-1170
Roy L. Glass, Esq. 3000-66th Street North Suite B
St. Petersburg, Florida 33710 BACKGROUND
By administrative complaint, Petitioner charged Respondent with violation of Section 458.331(1)(c), Florida Statutes, a statutory provision authorizing the imposition of disciplinary sanctions against licenses of medical doctors convicted or found guilty of a crime which directly relates to the practice of medicine or the ability of the licensee to practice medicine.
Respondent requested a formal administrative hearing on the charge in the administrative complaint and this proceeding ensued. At the hearing, Petitioner presented the testimony of four witnesses. One of those witnesses' testimony was presented in the form of a prior deposition. Petitioner also presented four evidentiary exhibits. Respondent presented eight evidentiary exhibits and the
testimony of 13 witnesses, including one witness whose testimony was presented in the form of a prior deposition.
The transcript of the final hearing was filed with the Division of Administrative Hearings on January 5, 1989. The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript and, in accordance with Rule 22I-6.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.
Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.
Based upon all of the evidence, including the demeanor and candor of the witnesses who testified, the following findings of fact are determined:
FINDINGS OF FACT
Respondent is Hooshang Hooshmand, a licensed physician at all times relevant to these proceedings. He was issued license number ME 0021496 by the State of Florida.
Medicare is a program of the U.S. Department of Health and Human Resources which is administered by the Health Care Financing Administration (HCFA). The program allows for third party payment, by the federal government, for diagnostic programs and medical treatments administered on an inpatient and outpatient basis to individuals eligible for medicare coverage. Among providers of medical services, only licensed physicians may be paid by the program for rendition of services. Others who may be reimbursed include health care professionals, such as durable medical equipment suppliers, as well as patients themselves in the instance of medical services rendered by a nonparticipating physician.
On October 9, 1987, in the United States District Court for the Southern District of Florida, Respondent was convicted, after a jury trial, of ten counts of submission of fraudulent medicare claims in violation of Title 18,
U.S.C. Section 287 and Section 2. He was also convicted on 11 counts of devising a scheme to defraud by mail, the U.S. Department of Health and Human Resources in violation of Title 18, U.S.C., Section 1341 and Section 2.
Respondent's sentence upon his conviction included a term of 18 months imprisonment and five years probation upon completion of imprisonment and any parole period; payment of restitution in the amount of $3,101.24; payment of a fine of $250,000; payment of an assessment of $300; performance of 5,000 hours of community service during the five year probationary period following imprisonment. The verdict and sentence are presently on appeal to the United States Circuit Court of Appeals for the Eleventh Judicial Circuit.
The expert testimony of Michael Gutman, M.D., a specialist in forensic psychiatry in the State of Florida, establishes that the practice of medicine in Florida encompasses not only a physician's technical competence; but also the relationship between a physician and the patient. Such a relationship is based upon trust and honesty. While the physician's expectation of payment for services is part of the patient/physician relationship, fraudulent billing for those services by the physician to either the patient or a third party payor directly affects the practice of medicine through its impact on that relationship. A fraudulent billing scheme, such as that of which Respondent was convicted, introduces dishonesty to the physician/patient relationship and
prevents a proper evaluation of the patient in favor of a methodology permitting fraudulent billing. Such methodology would necessarily be one chosen to permit fraudulent billing in a way which would escape detection; a choice not necessarily in the best interest of the patient.
Gutman's testimony also provides an adequate record upon which to find that fraud, such as that reflected by Respondent's criminal conviction, also directly relates to the ability to practice medicine because the physician's professional judgement and ethical standards are involved. Such judgement has a direct bearing on the ability to practice medicine. How that judgement is exercised could very well affect the life of the patient in some situations. While it is found Respondent's conviction of fraud in the use of the billing apparatus in his practice directly relates to professional judgement and the ability to practice medicine, there has been no showing that the Respondent's judgemental aberration at that time detrimentally affected his patients' health or his technical competence.
In mitigation of the charge in the administrative complaint, Respondent provided testimony of witnesses establishing his technical competence and expertise in his areas of specialization; his extremely impressive professional credentials; the high regard in which he is held by certain of his peers and patients; and his previously unblemished record in the practice of medicine.
Respondent also provided testimony of witnesses establishing the complexity of medicare billing and the fact that many physicians, while holding ultimate responsibility for the accuracy of such billing, delegate this task to subordinates.
Testimony of Respondent establishes that the complexity of medicare procedures played a major role in his violation of the legal requirements in that system of reimbursement and is partially to blame for his criminal conviction. The testimony of Eleanor Breckner, offered by Petitioner to rebut Respondent's testimony, is not credited. In addition to Beckner's demeanor while testifying, her testimony is diminished in view of her admission that she committed perjury and embezzlement on previous occasions. Beckner also admitted to incidents of attempted suicide indicative of mental instability. Her testimony is not credited with any probative value.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
The administrative complaint alleges that Respondent has violated Section 458.331(1)(c), Florida Statutes, as a result of being convicted of a crime which directly relates to the practice of medicine or the ability to practice medicine. The burden of proof is upon Petitioner to substantiate the allegation of the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Petitioner has clearly and convincingly proven that Respondent, while a licensed physician in Florida, was convicted of ten counts of submitting fraudulent medicare claims in violation of Title 18 U.S.C., Sections 287 and 2. He was also convicted of devising a scheme to defraud, by mail, the U.S. Department of Health and Human Services in violation of Title 18 U.S.C., Sections 1341 and 2.
The evidence also clearly and convincingly shows that the crimes of which Respondent has been convicted relate directly to the practice of medicine.
Petitioner is authorized to discipline the license of Respondent pursuant to Section 458.331(2), Florida Statutes. The range of applicable penalties is established by Petitioner's Rule 21M-20.001, Florida Administrative Code. While Petitioner urges the revocation of Respondent's license, such penalty is undeserved in view of the mitigating factors in this case. Absent a showing that Respondent's competence is impaired and that rehabilitative efforts would be fruitless, a more lenient penalty than that proposed by Petitioner should be imposed.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent pay an administrative fine of $2,500 and that
his license be placed on probation for a period of two years upon terms and
conditions to be established by the Board of Medicine. It is further recommended that a condition of such probation require the satisfactory completion by Respondent of a course of study designed to provide him the information and skills necessary to properly comply with medicare reimbursement procedures.
DONE AND ENTERED this 3rd day of March, 1989, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Hearing Officer
Division of Administrative Hearings The Desoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1989.
APPENDIX
The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.
RESPONDENT'S PROPOSED FINDINGS
1.-4. Addressed.
5.-6. Unnecessary to result.
7. Addressed in part, remainder unnecessary. 8-10. Unnecessary to result.
11. Addressed in part; remainder unnecessary. 12.-14. Unnecessary to result.
Addressed in part; remainder unnecessary.
Adopted by this reference.
Rejected, not supported by the evidence.
Unnecessary to result.
19.-20. Not supported by the weight of the evidence.
Unnecessary to result; also cumulative.
Adopted by this reference.
Rejected as cumulative.
Not supported by the weight of the evidence.
Unnecessary to result and not relevant. 26.-27. Unnecessary to result.
Unnecessary to result and cumulative.
Addressed in part; remainder unnecessary to result. 30.-31. Unnecessary to result; cumulative.
32. Reject, not supported by weight of the evidence. 33.-36. Rejected, not relevant.
37.-41. Unnecessary to result.
42.-43. Addressed in part, remainder unnecessary. 44.-45. Unnecessary to result reached.
46. Addressed in part, remainder unnecessary. 47.-50. Unnecessary to result.
Unnecessary and cumulative.
Unnecessary to result.
Rejected on basis of relevancy.
54.-56. Addressed in part, remainder unnecessary.
Unnecessary to result reached.
Rejected, not relevant.
Unnecessary to result reached.
Rejected, not relevant.
61.-67. Unnecessary to result reached.
Rejected, not credible and not supported by the weight of the evidence. Also a legal conclusion.
Addressed.
Unnecessary to result.
Adopted by this reference.
Adopted in substance.
Rejected as a legal conclusion.
PETITIONER'S PROPOSED FINDINGS
1.-7. Adopted in substance. 8.-9. Addressed.
COPIES FURNISHED:
Jonathan King, Esq. Department of Professional
Regulation
130 North Monroe Street Tallahassee, FL 32399-0750
Joesph C. Jacobs, Esq.
Melissa Fletcher Allaman, Esq.
305 South Gadsden Street
P.O. Box 1170
Tallahassee, FL 32302-1170
Roy L. Glass, Esq. 3000-66th Street North Suite B
St. Petersburg, FL 33710
Docket for Case No: 88-002270
Orders for Case No: 88-002270
