STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARMELO CABALU MENDIOLA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5146

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Tampa, Florida, on March 23, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Charles A. Stampelos

McFarlain, Wiley, et al. Post Office Box 2174 Tallahassee, Florida 32301

For Respondent: Allen R. Grossman

Department of Legal Affairs 2020 Capital Circle, Southeast Suite 308, Alexander Building

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to be licensed as a physician in Florida.

PRELIMINARY STATEMENT

By Order dated June 3, 1992, the Board of Medicine informed Petitioner that his application for licensure by endorsement was denied.

By Amended Petition for Formal Administrative Hearing dated July 2, 1992, Petitioner requested a formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence one exhibit. Respondent called no witnesses and offered into evidence one exhibit. The parties jointly sponsored one exhibit. All exhibits were admitted.

The transcript was filed April 8, 1993. Each party filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. Petitioner was born in Tarlac, the Philippines, on July 16, 1959. He received a Bachelors of Science degree in October, 1978, from the University of East Manilla. He received his medical degree in April, 1983, from the University of the East Ramon Magsaysay. He obtained a license to practice medicine in the Philippines. This license is irrelevant to the present case and expired about two years after Petitioner arrived in the United States.

   
   

2. After graduating from medical school, Petitioner worked in the Philippines. He first participated in a rotating clerkship. He then practiced medicine in a rural area of the Philippines for six months.

   
   

3. Petitioner married a nurse in the Philippines in December, 1984. In February, 1985, she immigrated to the United States to practice nursing. Petitioner immigrated to the United States in May, 1985, and joined his wife in Queens, New York City where they resided.

   
   

4. In July, 1985, Petitioner sat for the FMGEMS and passed the language and clinical science sections on his first attempt, leaving only the basic medical science section to be passed upon retesting. He passed this last section in January, 1986, and thereby became eligible to enter an accredited program of graduate medical education in the United States, although he evidently had some problem finding a program to accept him.

   
   

5. In the interim, after a short period of employment unrelated to medicine, Petitioner began to seek work in a medical field. A mutual friend suggested that Petitioner contact Dr. Hidalgo, who is a Filipino-American then practicing medicine in Brooklyn, New York City.

   
   

6. In November, 1985, Dr. Hidalgo hired Petitioner to serve as a medical assistant. Dr. Hidalgo knew that Petitioner had no license to practice medicine anywhere in the United States. Dr. Hidalgo also knew that he was not authorized to have unlicensed physicians treat his patients in any setting. At the time, Dr. Hidalgo had another Filipino-American medical assistant, but later he had four Filipino-American medical assistants.

   
   

7. Petitioner's job with Dr. Hidalgo was to see his patients, announce that he was a medical assistant, obtain a history, perform a physical examination, form a working diagnosis, discuss the case with Dr. Hidalgo, and then carry out Dr. Hidalgo's orders. Petitioner also completed Medicaid forms using codes that Dr. Hidalgo provided him.

   
   

8. During the first couple of years of this employment, Dr. Hidalgo remained at the offices where he consulted with Petitioner and the other medical assistants. However, during Petitioner's last six months of employment with Dr. Hidalgo, he eventually hired a licensed pediatrician to remain at the office and consult with the medical assistants. Dr. Hidalgo did not thereafter appear at the office, although fraudulently completed Medicaid forms, including some prepared by Petitioner, continued to show that he was seeing patients.

9. Petitioner also assisted Dr. Hidalgo in performing unnecessary tests, such as x-rays on initial visits by patients complaining only of coughing in connection with what appeared to be nothing more than common upper respiratory infections.

   
   

10. It is unlikely that Petitioner knew with certainty that his practice with Dr. Hidalgo was unauthorized. However, Petitioner testified that he was unaware that anything with respect to his involvement with Dr. Hidalgo's operation was illegal or improper. This testimony is discredited for several reasons. First, Petitioner several times sought the reassurance of Dr. Hidalgo's attorney/accountant that all of their practices were legal. Second, regardless whether Petitioner should have known that Dr. Hidalgo should not bill Medicaid for patients that he had not seen, Petitioner certainly should have known that it was improper to perform unnecessary tests on patients.

    
    

11. In addition, when the authorities visited Dr. Hidalgo's office and questioned Petitioner, he, on the advice of Dr. Hidalgo, lied to the investigators about the practices in the offices.

    
    

12. Petitioner was arrested by New York authorities in May, 1988. Because he had not personally profited from the Medicaid fraud and offered to cooperate with the authorities, Petitioner and the authorities were able to reach a plea bargain. The prosecution agreed to drop the charges of the unauthorized practice of medicine in return for Petitioner pleading guilty to a misdemeanor of offering to file a false instrument and receiving three years' probation.

    The false statement pertained to filing Medicaid claims forms for unnecessary services.

    
    

13. Petitioner cooperated in good faith with the prosecutors in the successful prosecution of Dr. Hidalgo. Petitioner also entered his guilty plea to the misdemeanor charge in August, 1988, and was sentenced in December, 1988, to three years' probation. He has since completed the probation successfully.

    
    

14. Returning to his medical career, Petitioner began a three year residency at Easton Hospital from July 1, 1988, through June 30, 1991. Petitioner never formally informed the hospital of the New York arrest and subsequent conviction. He mentioned the matter to the Chief of Residency early in his residency and to an attending physician later in his residency. These individuals were supportive of Petitioner, who generally performed his duties with integrity and high competence.

    
    

15. To perform as a resident, Petitioner was required to obtain a Graduate Medical Trainee license from the Commonwealth of Pennsylvania. This license is restricted; it may only be used at the hospital at which the licensee is training and under the supervision of licensed doctors.

    
    

16. The application form for the Pennsylvania Graduate Medical Trainee license asks: "Have you ever been convicted of a crime (exclus[ive] of parking and traffic violations) or received probation without verdict, disposition in lieu of tr[ia]l, or an accelerated rehabilitative disposition in the United States or any other country?"

    
    

17. When first applying for the Pennsylvania Graduate Medical Trainee license, Petitioner correctly indicated that he had not been so convicted. The application was dated April, 1988, and he was not arrested until May, 1988. When applying for the first annual renewal of the license on April 23, 1989,

    Petitioner indicated that he had been so convicted and disclosed the details of the above-described events involving Dr. Hidalgo.

    
    

18. On April 2, 1990, Petitioner had to apply for another renewal of the Pennsylvania Graduate Medical Trainee license. On this form, he answered the above-quoted question in the negative. Petitioner testified that he thought, notwithstanding the clear language of the question, that the question pertained only to the year that had passed since the prior question.

    
    

19. No one at the Pennsylvania Board of Medicine contacted Petitioner in connection with the conviction until October, 1991, after he had resubmitted the form for the renewal of the Pennsylvania Graduate Medical Trainee license, noting, where asked, that he was no longer in training.

    
    

20. After the Pennsylvania Board of Medicine determined that Petitioner had in fact earlier disclosed the conviction, it decided to issue only a reprimand against Petitioner's Graduate Medical Trainee license, rather than place his license on six months' probation, as had earlier been considered. The formal reprimand was issued on December 20, 1991, and mailed to Petitioner on December 20, 1991. On May 26, 1992, Petitioner received an unrestricted license to practice medicine in Pennsylvania.

    
    

21. Immediately following the conclusion of his residency at Easton Hospital on June 30, 1991, Petitioner began a fellowship at the University of South Florida College of Medicine in nephrology on July 1, 1991.

    
    

22. In connection with the fellowship, Petitioner submitted a residency application to the Veterans Administration because his fellowship duties with the University of South Florida College of Medicine would require his working at the VA hospital in Tampa.

    
    

23. Petitioner signed the VA residency application on April 16, 1991, certifying on that date that all information in the application was "true, correct, complete, and made in good faith," to the best of Petitioner's knowledge and belief.

    
    

24. The VA residency application asked Petitioner to list "all states/territories in which you are now or have ever been licensed." Petitioner accurately responded by noting his Graduate Medical Trainee license. He stated that it was no longer current, having expired on June 30, 1991.

    
    

25. The VA residency application also asked Petitioner: "Have you ever had any license revoked, suspended, denied, restricted, limited, or issued on a provisional basis?" Petitioner answered "no," which, strictly speaking, was accurate.

    
    

26. The VA residency application asked: "During the past seven years have you been convicted, imprisoned, on probation or parole or forfeited collateral, or are you now under charges for any offense against the law not included [in the preceding question]?" Petitioner answered yes and disclosed the conviction.

    
    

27. At the same time, Petitioner was applying to the University of South Florida College of Medicine for the fellowship in nephrology. He did not disclose the conviction, although it is not clear that the USF application requested such information. Petitioner testified that he believed that, due to the joint nature of the programs, the disclosure on the VA residency application

    form was sufficient, and, barring evidence of an affirmative misrepresentation on the USF application form, Petitioner is correct in this regard.

    
    

28. At the same time that he was applying to the VA hospital and USF College of Medicine, Petitioner was also applying to the Florida Board of Medicine for licensure by endorsement. On April 16, 1991, Petitioner attested to the truth and correctness of his application to the Florida Board of Medicine seeking licensure by endorsement. Petitioner has satisfied all requirements for licensure by endorsement except for the matters that are the subject of this proceeding.

    
    

29. The Florida Board of Medicine application asked: "Have you ever had a license to practice medicine/surgery revoked, suspended, or other disciplinary action taken in any state, territory, or country?" Petitioner answered no, which was correct because the Pennsylvania Board of Medicine did not contact Petitioner about his license until October, 1991.

    
    

30. The Florida Board of Medicine application asked: "Have you ever been convicted of . . . a misdemeanor?" Petitioner responded in the affirmative and disclosed the details of the conviction.

    
    

31. The Florida Board of Medicine application also asked: "Have you ever been licensed in any State, Guam, Puerto Rico or U. S. Virgin Islands? . . . (If yes, list state(s), license number(s) and date(s) of issuance.)" Petitioner responded "no" to this question, even though he had on the same day indicated on the VA residency application disclosed the existence of the Pennsylvania Graduate Medical Trainee license. Petitioner's testimony that he did not regard the restricted Pennsylvania license as a license is discredited based on his correct disclosure of the license on the VA residency application. Petitioner testified that he learned from a secretary at the VA hospital or USF College of Medicine that he should disclose the Pennsylvania Graduate Medical Trainee license on the VA residency application. But this "explanation" leaves unexplained why he felt no need to correct--not merely update--the Florida Board of Medicine application that he had signed presumably earlier on the same day.

    
    

32. Petitioner neglected to update his Florida Board of Medicine application by disclosing the reprimand that he received in December, 1991 from the Pennsylvania Board of Medicine on his Graduate Medical Trainee licensee. However, this omission is understandable given Petitioner's testimony that he was unaware at the time of the duty to update and the failure of the Florida Board of Medicine application to restate this duty.

    
    

33. Petitioner's application was considered by the Florida Board of Medicine Credentials Committee at meetings on March 16, 1992, and January 22, 1993, as well as the Florida Board of Medicine on April 3-5, 1992..

    
    

34. During the March 16 meeting, the Board members discussed the omission of the Pennsylvania Graduate Medical Trainee license based on Petitioner's claim that he did not know that that qualified as a license. The Board evidently was not aware that Petitioner had the same day disclosed the restricted license on his VA residency application.

    
    

35. Toward the end of its March 16 discussion of Petitioner's application, the following motions ensued after a discussion of Petitioner's failure to disclose the Pennsylvania Graduate Medical Trainee license:

    Cavallaro: 1/ I make a motion to deny. Campbell: 2/ Seconded.

    Chair: 3/ Based on:

    Cavallaro: Based on lack of truthfulness on the application, omissions.

    * * *

    Chair: And the action taken in New York.

    Mr. Grossman: Did he say also the action in New York.

    Cavallaro: Well, yeah. Incomplete information about the action taken in New York. Based on that action.

    [Petitioner]: I gave that action, sir.

    Cavallaro: Well, based on the action taken in New York.

    Mr. Grossman: The criminal action? Cavallaro: Criminal action.

    Petitioner: But I gave that information.

    Cavallaro: Yeah. Okay. I corrected it. We're basing it on the action that was taken in New York.

    Faircloth: 4/ I'm sorry. Are you deleting then the

    lack of truthfulness and omissions: Mr. Grossman: It's two grounds, right?

    Cavallaro: Yeah. Two grounds. . . . One, for not telling us about his license in Pennsylvania and the action taken there. Two, the action--criminal action taken in New York. That's the second one.

    
    

    Joint Exhibit 1, pages 96-97.

    
    

36. Following the above-cited clarification of the grounds, the Chair noted that the Board might be able to give Petitioner the benefit of the doubt as to the nature of the Pennsylvania Graduate Medical Trainee license. With respect to the conviction, the Chair observed that the Board had recently licensed a prostitute and a peeping Tom. The Board then failed to pass the motion to deny by a 2 to 2 vote.

    
    

37. At this point, Petitioner argued that "what I did in New York is bad and I paid for it." Without identifying any punishment, except completing the three years' probation by staying out of trouble, Petitioner described the payment as the work he had undertaken during his residency and the impact on his family if he were denied a Florida license. Id. at page 102.

    
    

38. The Chair responded accurately: "We're at a deadlock right now. What's happened is you're not going to get your license--you're not going to be approved, but you're not denied either because we can't get a motion." Id. at page 102.

    
    

39. The Chair suggested that the Board defer action until it obtained information from the Pennsylvania Board of Medicine, including how satisfied they were with Petitioner's candor. This motion passed unanimously.

    
    

40. During the April 3, 1992, Florida Board of Medicine meeting, the full Board decided to deny Petitioner's request for licensure based on the conviction, omission of the Pennsylvania Graduate Medical Trainee license,

    reprimand against the Pennsylvania restricted license, and failure to disclose the reprimand.

    
    

41. By letter dated December 7, 1992, Petitioner's counsel requested reconsideration of the decision to deny Petitioner's request for licensure.

    
    

42. The January 22, 1993, meeting of the Credentials Committee of the Florida Board of Medicine took up the request for reconsideration. After Petitioner's counsel summarized the prior action of the Board's Credentials Committee and subsequent information, such as the issuance of an unrestricted Pennsylvania license and positive letter from the New York Medicaid prosecutor, the new Chair, Fuad Ashkar, M.D., expressed surprise that the Board allowed the matter to proceed without a simple denial based on "major Medicaid fraud." Id. at page 267.

    
    

43. Referring to an uncontested revocation of membership by the American Medical Association based exclusively on the conviction, the new Chair stated: "I'm not prone for reconsideration. I don't see the merits of it. We don't need problem physicians in Florida. We have too many physicians." Id. at page

268. Receiving a motion to deny and a second, the Credentials Committee unanimously passed the motion.

1. Petitioner has shown competency and academic integrity in his work at the University of South Florida College of Medicine. In general, he has a reputation for honesty among his colleagues.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

   
   

3. Petitioner must prove entitlement to licensure by a preponderance of the evidence. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

   
   

4. Section 458.313 sets forth the qualifications for licensure by endorsement. Section 458.313(1)(a) incorporates the requirements of Section 458.311(1)(b)-(f).

   
   

5. Section 458.311(1)(c) requires "good moral character." Section 458.311(1)(d) requires that the applicant not have "committed any act or offense in this or any other jurisdiction which could constitute the basis for disciplining a physician pursuant to s. 458.331."

   
   

6. Grounds for discipline include "[a]ttempting to obtain, obtaining, or renewing a license to practice medicine by . . . fraudulent misrepresentations .

   . .," pursuant to Section 458.331(1)(a); "[h]aving a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authorities of any jurisdiction . .

   .," pursuant to Section 458.331(1)(b); "[b]eing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine," pursuant to Section 458.331(1)(c); "[m]aking deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine," pursuant to Section 458.331(1)(k); "[m]isrepresenting or concealing a material

   fact at any time during any phase of a licensing or disciplinary process or procedure," pursuant to Section 458.331(1)(gg); and "[f]ailing to report to the board, in writing, within 30 days if action as defined in paragraph (b) has been taken against one's license to practice medicine in another state, territory, or country," pursuant to Section 458.331(1)(kk).

   
   

7. Pursuant to Section 458.331(2)(a), upon finding any of these conditions, the Board of Medicine may enter an order of "[r]efusal to certify, or certification with restrictions, to the department an application for licensure "

   
   

8. The first serious factor in the present case is the conviction for filing false information regarding Medicaid claims. This is a serious violation, although only a misdemeanor. The violation is not technical; it involves filing claim forms for work done that was unnecessary. Petitioner would not need any specialized insight into federal or New York laws governing Medicaid or the practice of medicine to know that this act was highly improper. Lying to investigators exacerbated the situation.

   
   

9. The key in this case is the extent to which Petitioner has undertaken to rehabilitate himself from the point in early 1988 when he actively participated in Medicaid fraud. In the intervening five years, he has worked hard in his Easton hospital residency and USF College of Medicine fellowship. In general, he has displayed honesty with his professional colleagues during this time. But the only penalty he paid was staying out of trouble during the three years of his probation. The other work, although performed admirably, obviously was intended to advance his own professional career.

   
   

10. The absence of affirmative signs of rehabilitation would be less troublesome if Petitioner's subsequent behavior had been above question in terms of integrity. However, it was not.

    
    

11. In isolation, either of the omissions in Petitioner's paperwork with various licensing and health care entities might be attributed to innocent oversight. But the combination of the two omissions is disturbing and leads necessarily to the inference that Petitioner has not yet rehabilitated himself in terms of ensuring that his paperwork is accurate and complete.

    
    

12. Petitioner has at times interpreted questions on applications in a narrow and self-promoting fashion. There may not have been a requirement to disclose the conviction to the Easton hospital, although a voluntary formal disclosure would tend to prove that the rehabilitation process was underway. Yet, Petitioner displays a keen understanding for the English language when it benefits him to do so, as was the case in answering the VA application form that omitted any reference to reprimand.

    
    

13. The first clear nondisclosure is on the application for the second annual renewal of the Graduate Medical Trainee license. The question asked if Petitioner was "ever convicted." Petitioner's interpretation that the question meant only in the intervening year defies reason. More likely, Petitioner realized that he had not been contacted by the Pennsylvania Board of Medicine after the first disclosure and decided to let sleeping dogs lie.

    
    

14. The other troublesome nondisclosure is the failure to identify the Pennsylvania Graduate Medical Trainee license on the Florida Board of Medicine application. Petitioner's claimed confusion over whether this is really a

    license is belied by the disclosure of the restricted license on the VA residency application signed on the same day.

    
    

15. The failure to update the Florida Board of Medicine application with information about the reprimand on the Pennsylvania Graduate Medicine Trainee license may well have been due to ignorance of the requirement. The case against Petitioner's honest ignorance would be stronger if the application form restated the requirement.

    
    

16. The failure to disclose the conviction to the USF College of Medicine is, like the failure to disclose formally to the Easton hospital, not particularly indicative of forthrightness, although disclosure may not have been mandated by the USF application.

    
    

17. The underlying problem with Petitioner's application is that he actively participated only five years ago in Medicaid fraud. Unlike prostitution or voyeurism, Medicaid fraud effectively deprives the medically indigent public of much-needed medical services.

    
    

18. The problem for Petitioner is not that a Board member based his vote for denial on his opinion that there are too many doctors, that--in an uncontested "proceeding"--the American Medical Association terminated Petitioner's membership, or even that a misdemeanor conviction involving Medicaid fraud should forever bar a person from acquiring a license to practice medicine in Florida.

    
    

19. The problem for Petitioner is that hard work in advancing his own medical career is not the equivalent of rehabilitation. The problem is that, when it came to filling out important paperwork, Petitioner has again twice failed to demonstrate that he has learned any lessons from the 1988 conviction, which also involved erroneous paperwork. Important facts are omitted. When the omissions are pointed out, Petitioner offers transparent and unconvincing explanations. There is really no evidence in the record on which to base a finding that Petitioner has yet addressed the attitudes that five years ago permitted him to commit Medicaid fraud.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Board of Medicine enter a final order denying Petitioner's application for licensure by endorsement. ENTERED on April 26, 1993, in Tallahassee, Florida.

ROBERT E. MEALE

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 on April 26, 1993.

ENDNOTES

1/ Richard Cavallaro, M.D.

2/ Attorney Pamela A. Campbell. 3/ Edward Dauer, M.D.

4/ Dorothy Faircloth, Executive Director

APPENDIX

Treatment Accorded Proposed Findings of Petitioner

Adopted or adopted in substance: 1-7 (except second and third sentences);

8 (first three and fifth sentences); 9-11 (first and fourth sentences); 12-23;

26 (first three sentences); 27 (first two sentences); 28; 33; and 35-36.

Rejected as unsupported by the appropriate weight of the evidence: 7 (second sentence); 8 (fourth sentence; Petitioner had a job even if his rate of pay was not contingent upon the volume of his billings); 26 (fourth through seventh sentences); 27 (third through fifth sentences; as to the fourth sentence, the date as to which Petitioner certifies the VA application is April 16, 1991); and 29 (second through fourth sentences).

Rejected as recitation of evidence: 7 (third sentence); and 24- 25. Rejected as subordinate: 11 (second and third sentences).

Rejected as irrelevant: 29 (first sentence); 30-32; and 34. Rejected as speculative: 26 (last sentence).

Treatment Accorded Proposed Findings of Respondent

Adopted or adopted in substance: 1-20 ("violation" should be "volition"); 21; 22 (although the omission regarding updating is understandable under the circumstances described in the recommended order); 23; 25 (although not as to his failure to update the Florida application. Also the bases for the denial are as stated in the recommended order); and 26-29.

Rejected as recitation of evidence: 24. Rejected as irrelevant: 30.

COPIES FURNISHED:

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Charles A. Stampelos McFarlain, Wiley, et al.

P. O. Box 2174 Tallahassee, FL 32301

Allen R. Grossman Department of Legal Affairs 2020 Capital Circle, S.E. Suite 308, Alexander Bldg. Tallahassee, FL 32399-1050

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-005146

Orders for Case No: 92-005146