STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN S. SPECTOR, M.D., )

)

Petitioner, )

)

vs. ) CASE NO. 93-7095F

)

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Respondent. )

)

FINAL ORDER

Pursuant to stipulation of the parties, formal hearing in this case was waived and the case was submitted for decision by the Hearing Officer, Michael

1. Parrish, on the basis of a stipulated record.

   
   

   APPEARANCES

   
   

   For Petitioner: William L. Epstein, Esquire

   Broad & Cassel

   Fifth Floor, Reflections Centre

   400 Australian Avenue, South West Palm Beach, Florida 33401

   
   

   For Respondent: Arthur B. Skafidas, Esquire

   Department of Business and Professional Regulation

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   STATEMENT OF THE ISSUES

   
   

   This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the parties have stipulated 1/ that the only disputed issues to be resolved by the Hearing Officer are:

   
   

   1. Whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes.

      
      

   2. Whether the agency's actions were substantially justified.

      
      

   3. Whether special circumstances exist that would make an award of attorney's fees unjust.

PRELIMINARY STATEMENT

Following the dismissal of all charges against the Petitioner On October 20, 1993, in Department of Professional Regulation, Board of Medicine v. Stephen

1. Spector, M.D., DOAH Case No. 93-1307, DPR Case No. 92-0666, the Petitioner filed a timely Petition for Award of Attorney's Fees and Costs Incurred by Small Business Party on December 16, 1993. The Respondent filed a timely response to the Petition. Thereinafter, the parties waived formal hearing in this case and stipulated to the submission of the case for decision on the basis of the pleadings, stipulated records, and proposed final orders to be filed by July 8, 1994. The parties jointly offered and filed exhibits 1 through 9, which are described as follows:

   
   

   1. The transcript of the Probable Cause Panel Meeting of July 29, 1992.

      
      

   2. Exhibits considered by the Probable Cause Panel on July 29, 1992.

      
      

   3. Memorandum of finding of Probable Cause signed by the Chairman of the Probable Cause Panel, Board of Medicine.

      
      

   4. The Administrative Complaint filed August 7, 1992.

      
      

   5. Closing Order filed January 12, 1994.

      
      

   6. Summary Memorandum from Sandra Wolpe, Esquire, dated August 6, 1993.

      
      

   7. Materials provided by Petitioner, through counsel, in support of dismissal.

      
      

   8. Probable Cause transcript dated September 14, 1993, regarding reconsideration of case.

      
      

   9. Petition for Award of Attorney's Fees and Costs Incurred by Small Business Party dated December 15, 1993, with all attached exhibits.

Both parties field timely proposed final orders. Thereafter, on July 29, 1994, the Petitioner filed Petitioner's Supplemental Memorandum of Law in Support of Petition for Award of Attorney's Fees and Costs. The supplemental memorandum was accompanied by an Affidavit of Stephen S. Specter, M.D. Attached to the affidavit were various documents described in and incorporated as part of the affidavit. On August 5, 1994, the Respondent promptly moved to strike the supplemental memorandum. During the course of a motion hearing on the Respondent's motion to strike, the parties agreed that the stipulated record in this case would be supplemented by the July 28, 1994, Affidavit of Stephen S. Spector, M.D., and the attachments to that affidavit. 2/ The motion to strike was withdrawn.

The proposed final orders filed by the parties have been carefully considered during the preparation of this Final Order. All proposed findings of fact submitted by all parties are specifically addressed in the appendix hereto.

FINDINGS OF FACT

1. The Petitioner, Stephen S. Spector, M.D., has at all times material to this proceeding been licensed in the State of Florida as a physician. At all times material to this proceeding the Petitioner has engaged in the practice of medicine specializing in ophthalmology and ophthalmic surgery. In connection with his medical practice, the Petitioner also owns and operates, directly or indirectly, at least one outpatient surgery center where he performs most of his surgical procedures. In the normal course of events, when the Petitioner performs surgery at the outpatient surgery center he owns, the patient, or the patient's insurance carrier, is billed separately for the Petitioner's professional services as surgeon and for the use of the outpatient facility. 3/

   
   

2. In the course of his professional practice as a physician/surgeon and the operation of his outpatient surgery center, the Petitioner does business under a variety of business names or business entities, including the following: 4/

   
   

   Steve S. Spector, M.D., P.A.; Presidential SurgiCenter, Inc.; Presidential Optical, Inc.; and Presidential Eye Center, P.A.

   
   

3. At all times material, the Petitioner owned 100 percent of the stock in each of the four corporate entities listed immediately above. At all times material, the Petitioner was employed by Presidential Eye Center, P.A., as a physician/surgeon specializing in ophthalmology, and has been so employed for a period of approximately fourteen or fifteen years. In recent years, the Petitioner's estimated monthly income from his employment by Presidential Eye Center, P.A., was $10,000.00 per month. In some recent years, his income from his employment by Presidential Eye Center, P.A., was somewhat higher. 5/ The Petitioner also receives monthly rental payments from Presidential Eye Center, P.A., Presidential SurgiCenter, Inc., and Presidential Optical, Inc., of approximately $9,500.00.

   
   

4. As of the date on which the Administrative Complaint was filed, the Petitioner's net worth was approximately $691,000.00. The evidence in the case does not reveal the number of Petitioner's employees or the number of people employed by the corporate entities through which the Petitioner does business. 6/ The evidence in this case does not clearly reveal which professional and/or business activities are engaged in by the Petitioner in his individual capacity and which are engaged in through each of the four corporate entities of which he is the 100 percent owner. 7/

   
   

5. The Case of Department of Professional Regulation, Board of Medicine v. Stephen S. Spector, M.D., DOAH Case No. 93-1307, DPR Case No. 92-0666, had its genesis in a September 17, 1991 letter from Marc Freeman, M.D., Medical Director of the Family Medical Centers, to the Department of Professional Regulation 8/ (Department) alleging that the Petitioner had made false representations related to billing practices regarding five cataract surgeries and that the Petitioner also made a practice of submitting bills for services and facilities that were allegedly covered by a capitation contract.

   
   

6. The case was assigned to DPR Investigator Robert Herron, who notified Petitioner of the complaint and investigation by letter of February 6, 1992.

7. Investigator Herron obtained copies of the medical records for four of the patients indicated in Dr. Freeman's complaint letter, which included records from Humana Hospital and Presidential SurgiCenter, Petitioner's surgical center.

   
   

8. Investigator Herron interviewed Dr. Freeman, interviewed the Petitioner through his attorney, and interviewed the attorney representing Humana Health Care Plan. The Petitioner, through counsel, represented that any overbilling to Humana occurred due to errors in bookkeeping and accounting, and not through any fraud on the part of the Petitioner.

   
   

9. Other documents obtained as part of this investigation included, but were not limited to, capitation agreements between Petitioner and Humana Medical Plan, Inc., and related court documents from civil litigation which transpired as a result of Petitioner's alleged breach of contract and unjust enrichment.

   
   

10. Investigator Herron did not interview the employees of the Petitioner who handled the Petitioner's billing for professional services and for use of facilities.

    
    

11. Humana's civil complaint against Petitioner, Case No. CL 90-8421 A B, alleged that Petitioner breached his contract with Humana and profited unfairly as a result, by performing surgeries and billing for same contrary to the provision of capitation agreements between the Petitioner and Humana. Humana claimed that the overbilling by the Petitioner totaled almost $400,000.00.

    
    

12. On or about May 21, 1992, Investigator Herron compiled a report which was reviewed and approved by his supervisor on the same date.

    
    

13. Settlement of the case between Humana and Petitioner was reached, and an Order of Dismissal was filed in that cause on September 23, 1991. The settlement called for Petitioner to pay Humana Medical Plan, Inc., a total sum of $210,000.00 over an approximate four-year period of time. This settlement was also to include a letter by Humana indicating that this case involved a contractual dispute based upon accounting procedures, and was not based upon allegations of fraud. 9/

    
    

14. Prior to the Probable Cause Panel meeting of July 29, 1992, the Department forwarded to the panel members copies of the complete investigative file regarding the Petitioner, along with a copy of the Department's recommendation in the form of a draft Administrative Complaint.

    
    

15. Each panel member received and reviewed the materials related to this case prior to the Probable Cause Panel meeting.

    
    

16. DPR Case No. 92-0666 was forwarded to the Probable Cause Panel with a recommendation that probable cause be found for an Administrative Complaint.

    
    

17. Present at the July 29, 1992, Probable Cause Panel meeting were panel members Richard McEven, Chairman; Gerard Kaiser, M.D.; and Edward Dauer, M.D. Also present were M. Catherine Lannon, Esquire, from the Attorney General's office, Carlos J. Ramos, attorney for the Department of Professional Regulation, and Teresa Corley, also from the Department.

    
    

18. Probable cause was found to exist unanimously by the Panel members, with Dr. Dauer noting that the proposed Administrative Complaint accurately represented "the facts of law at issue."

19. Probable cause was found to exist that Petitioner violated the following statutory provisions: Section 458.331(1)(h), (k) and (n), Florida Statutes.

    
    

20. On or about August 7, 1992, the Department initiated action against the Petitioner's license to practice medicine as directed by the Probable Cause Panel of the Board in DPR Case No. 92-0666, later DOAH Case No. 93-1307, through the filing of an Administrative Complaint.

    
    

21. The Administrative Complaint filed on August 7, 1992, charged Petitioner with the following violations: filing false reports which the licensee knew to be false in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement; by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide service under a capitation agreement; and exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement.

    
    

22. At the time of the four surgeries that form the basis for the underlying Administrative Complaint, there was no capitation agreement between the Petitioner and Humana, because Humana had terminated the agreement. The materials presented to the original Probable Cause Panel included several documents, all apparently overlooked, which showed that the capitation agreement had been terminated and that the effective date of the termination was prior to the date of the four surgeries at issue in the Administrative Complaint.

    
    

23. At the time of the four surgeries at issue in the underlying Administrative Complaint, an employee of Petitioner, Jeanne Gold, had the responsibility of billing for Petitioner's services and for the Presidential SurgiCenter facility fee. For each patient listed in the Administrative Complaint, Ms. Gold billed Humana a surgical facility fee for surgeries purportedly rendered by Petitioner at the Presidential SurgiCenter, even though the surgeries were actually performed at Humana Hospital. There were logical explanations for how the errors occurred, which explanations are set forth in affidavits from Jeanne Gold, Brenda Gruber, and Stephen Cohen. These affidavits which explain how the errors in billing occurred were not part of the materials reviewed by the original Probable Cause Panel, but the information contained in these affidavits could have been obtained prior to the original Probable Cause Panel meeting if the case has been adequately investigated.

    
    

24. When the Petitioner was told that Humana believed he had incorrectly billed for the four surgeries at issue, he instructed his staff to inquire into the matter and take any necessary corrective action. The Petitioner subsequently made appropriate reimbursements to correct the subject billing errors.

25. On or about September 14, 1993, Department legal counsel presented DPR Case No. 92-0666 to the Probable Cause Panel for reconsideration based upon information which indicated that Petitioner did not have a capitation agreement with Humana at the time of the subject surgeries and that the incorrect billing was simply an error, not an intentional or fraudulent act. Based upon the recommendation of Department legal counsel, the second Probable Cause Panel dismissed all charges against the Petitioner.

    
    

26. The evidence presented to the original Probable Cause Panel was an insufficient basis upon which to find probable cause for the violations asserted in the Administrative Complaint. That evidence failed to contain evidence that would reasonably support a belief that the Respondent acted intentionally or fraudulently, and the evidence also affirmatively showed that some of the facts asserted in the Administrative Complaint were incorrect. Adequate investigation would have revealed that all of the incorrect billing alleged in the Administrative Complaint resulted from unintentional error, for which there was a logical explanation.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. See Sections 57.111 and 120.57(1), Florida Statutes.

    
    

28. The Petitioner is seeking an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, subsection (4)(a) of which provides as follows:

    
    

    Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the

    agency were substantially justified or special circumstances exist which would make the award unjust.

    
    

29. The respective burdens on the parties in a case of this nature are described as follows in Jorge Arturo Flores, M.D. v. Department of Business and Professional Regulation, Board of Medicine, DOAH Case No. 93-2632F (Final Order issued December 8, 1993):

    
    

    A party seeking such an award of "attorney's

    fees and costs" has the initial burden of proving that it is a "small business party," within the meaning of the statute, which had prevailed in

    an earlier "adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency." Once such proof has been submitted, the burden shifts to the agency to establish by a preponderance of the evidence that its actions in initiating the proceeding "were substantially justified or special circumstances exist which

    would make the award unjust." See Department of Professional Regulation, Division of Real Estate

    v. Toledo Realty, Inc., 549 So.2d 715, 717-18 (Fla.

    1st DCA 1989). An agency meets its burden of demonstrating that its actions were "substantially justified" by showing that the proceeding "had a reasonable basis in law and fact at the time it was initiated." Section 57.111(3)(e), Fla. Stat.; Gentele v. Department of Professional Regulation,

    Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

    
    

30. In the instant case, the parties have stipulated that the only issues in dispute are the following:

    
    

    1. Whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes.

    2. Whether the agency's actions were substantially justified.

    3. Whether special circumstances exist that would make an award of attorney's fees unjust.

       
       

31. The issue of whether the Petitioner qualifies as a "small business party" within the meaning of the statute turns on the meaning of the quoted term as defined in the statute. The term is defined at subsection (3)(d) of Section 57.111, Florida Statutes, which reads as follows in pertinent part:

    
    

    The term "small business party" means:

    1.a. A sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the

    action is initiated by a state agency, not more than 25 full-time employees or a net worth of

    not more than $2 million, including both personal and business investments; or

    b. A partnership or corporation, including a professional practice, which has its principal office in this state and has at the time the action

    is initiated by a state agency not more than 25 full- time employees or a net worth or not more than $2 million;

    
    

32. The evidence submitted in this case is insufficient to establish Petitioner's status as a "small business party," as that term is defined in subsection (3)(d) of Section 57.111, Florida Statutes. First, the evidence fails to establish the number of full-time employees the Petitioner had at the time of the initiation of the underlying administrative proceeding. The number of Petitioner's employees was clearly raised as an issue in the Department's response to the petition. Under such circumstances, failure to submit evidence to establish eligibility under one of the specific statutory criteria is fatal to the Petitioner's efforts to establish eligibility. (See, Jorge Arturo Flores, M.D. v. Department of Business and Professional Regulation, Board of Medicine, DOAH Case No. 93-2632 (Final Order issued December 8, 1993), in which it was held that a petitioner's failure to submit evidence of the number of his employees and his net worth precluded an award of attorney's fees and costs under Section 57.111, Florida Statutes.)

33. The evidence is also insufficient to show that the Petitioner is "a sole proprietor of an unincorporated business, including a professional practice. . . ." In this regard, it must first be noted that the evidence regarding the nature of and the activities of the entities through which the Petitioner practices his profession and engages in other related business activities is somewhat sketchy and incomplete. Second, all four of those entities are, or purport to be, incorporated. Accordingly, while the Petitioner can be fairly described as the sole owner of four incorporated businesses, one or more of which he uses as a business vehicle for the practice of his profession (and perhaps for other related business activities), he is not "a sole proprietor of an unincorporated business." The evidence also establishes that the Petitioner engages in a substantial amount (if not all) of his professional practice in the capacity of a salaried employee of Presidential Eye Center, P.A., a corporate entity of which he owns 100 percent of the stock.

    
    

34. Inasmuch as the Petitioner is not "a sole proprietor of an unincorporated business," he is not a "small business party" within the meaning of Section 57.111, Florida Statutes. 10/ Relying on such authorities as the Final Orders in Gentele v. Department of Professional Regulation, Board of Optometry, 9 F.A.L.R. 310 (DOAH Case No. 85-3857F, June 20, 1986), and McCallister v. Department of State, Division of Licensing, 9 F.A.L.R. 4064 (DOAH Case No. 87-0724F, June 15, 1987), the Petitioner argues that, because he is engaged in a "professional practice," he can qualify as a "small business

    party" regardless of the organizational structure of his professional practice.

    
    

35. The Hearing Officer's Final Order in Gentele, supra, which was followed in McCallister, supra, relies on what the Hearing Officer described as a "clear legislative intent that the Act apply to all professional practices below a specified size, regardless of organizational form." The Hearing Officer in this case is unable to discover any such intent in the language of the statute and, accordingly, declines to depart from the language of the statute as written by the Legislature. 11/

    
    

36. With regard to the Petitioner's practice of his profession as an employee of one of his corporate entities, it is sufficient to note that several cases have concluded that employees are not encompassed in the statutory definition of the term "small business party." See, Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840 (Fla. 1st DCA 1988); Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715 (Fla. 1st DCA 1989); and Florida Real Estate Commission v. Shealy, 19 F.L.W. D1149 (Fla. 1st DCA 1994).

    
    

37. For the reasons discussed above, the Petitioner has not established that he qualifies as a small business party within the meaning of Section 57.111(3)(d), Florida Statutes, and his petition must, therefore, be dismissed. Such being the case, it is not necessary to discuss at length the other issues in the case. With regard to the issue of whether the Respondent's initiation of the underlying proceeding was substantially justified, it is sufficient to note that at the time the original Probable Cause Panel voted to find probable cause, the evidence before the Panel was insufficient to provide a reasonable basis in law and fact for the violations charged. Therefore, the underlying proceeding against the Petitioner was not substantially justified. With regard to the issue of whether special circumstances exist that would make an award of attorney's fees unjust, it is sufficient to note that the record in this case does not establish the existence of any such circumstances.

CONCLUSION

On the basis of the foregoing findings of fact and conclusions of law, it is ORDERED:

That the petition in this case for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is hereby DISMISSED and all relief requested in the petition is hereby DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of November 1994.

MICHAEL M. PARRISH

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 30th day of November 1994.

ENDNOTES

1/ Although there was some initial misunderstanding as to exactly what issues were being submitted for disposition by the Hearing Officer, that misunderstanding was resolved during the course of a motion hearing on August 25, 1994. See order issued on August 29, 1994.

2/ See order issued on August 29, 1994.

3/ See, generally, pages 98-104 of the stipulated record.

4/ In addition to the four corporate entities under which the Petitioner does business, the Petitioner also uses the business name "Presidential Eye Surgicenter" on his business stationery. The record in this case does not reveal whether "Presidential Eye Surgicenter" is a separate entity or merely a fictitious name used by the Petitioner and/or the corporate entities he owns or controls.

5/ For example, during the period from December 15, 1990, to December 16, 1991, the Petitioner was paid wages totaling $174,914.00.

6/ The Petition alleges that the Petitioner "has eight employees in his employ." It is not clear whether this allegation includes only employees of the Petitioner, individually, or whether it also encompasses the employees of the four corporate entities through which the Petitioner does business. In any event, regardless of what was intended by the allegations, there is no evidence at all regarding the number of the Petitioner's employees. The number of employees is not addressed in the nine stipulated exhibits, nor is it mentioned in the Petitioner's affidavit of July 28, 1994, or in the documents attached to that affidavit. The number of employees is one of the disputed issues. See

paragraph 4 of the Respondent's response, which includes the following: "Respondent denies that Petitioner qualifies as a small business party . . . Respondent demands strict proof of . . . the number of employees at the time this action was initiated."

7/ The Petitioner asserts in his affidavit that his professional practice as a physician is organized as a professional association known as Presidential Eye Center, P.A. The documents attached to the affidavit (also signed under penalty of perjury) suggests a much more complex business arrangement about which few relevant details are revealed.

8/ Since the inception of this case the Department's functions regarding regulation of the practice of medicine have been transferred to the Agency For Health Care Administration.

9/ This "no fraud" letter appears to have been troublesome to the original Probable Cause Panel. Although the reason for including the "no fraud" letter as part of the settlement between the Petitioner and Humana is not clearly shown in the record of this case, the fact remains that Human's complaint in the civil action against the Petitioner did not allege fraud.

10/ None of the four corporate entities of which the Petitioner is the owner of

100 percent of the stock was a party to the underlying Administrative Complaint. Accordingly, none of those entities are parties of any kind in that or this proceeding, which distinguishes this case from the somewhat unusual result in Ann & Jan Retirement Villa, Inc. v. Department of Health and Rehabilitative Services, 580 So.2d 278 (Fla. 4th DCA 1991).

11/ On appeal the court declined to address the issue of whether Section 57.111, Florida Statutes, applies to all professional practices below a specified size and affirmed the dismissal of the petition on other grounds. See Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987). Although the matter has not been directly addressed by the appellate courts, in disposing of a similar argument the court in Thompson

v. Department of Health and Rehabilitative Services, 533 So.2d 840 (Fla. 1st DCA 1988), concluded:

We recognize the apparent unfairness in permitting the limited class of persons falling within the definition of "small business party" to recover attorney fees and costs while excluding other persons such as employees of private and governmental entities who are forced to litigate with state agencies. However, Thompson makes no attack on the constitutional validity of the statute; and whether to extend the act's protection beyond the limitations presently imposed by the statute is a matter for legislative, not judicial, action.

APPENDIX

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

At pages 2 through 5 of the Petitioner's Memorandum of Law in Support of Petition for Award of Attorney's Fees and Costs, there are several unnumbered paragraphs of proposed findings of fact. The substance of all proposed findings of fact in those unnumbered paragraphs has been accepted and included in the Findings of Fact portion of this Final Order.

Findings submitted by Respondent:

Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: Accepted in substance with occasional additional details in the interest of clarity and accuracy.

Paragraphs 10 and 11: Accepted in substance, but with a few incorrect details omitted or corrected.

Paragraphs 12 and 13: Rejected as irrelevant. Paragraphs 14, 15 and 16: Accepted in substance.

Paragraphs 17, 18, 19, 20, 21, 22 and 23: Rejected as subordinate and unnecessary details, especially in view of the findings of fact to the effect that the evidence before the original Probable Cause Panel was insufficient to support a finding of probable cause.

Paragraphs 24, 25, 26 and 27: Accepted in substance.

Paragraph 28: Accepted in substance, with some details clarified. Paragraphs 29 and 30: Accepted in substance.

Paragraph 31: Rejected as subordinate and unnecessary details or as unnecessary repetition.

Paragraph 32: Although literally true, this paragraph is rejected as misleading because the Respondent had information at the time of the first Probable Cause Panel meeting that showed that the capitation agreement was not in effect at the time of the surgeries mentioned in the Administrative Complaint.

Paragraphs 33 and 34: Accepted in substance, with some clarification.

Paragraphs 35: Although literally true, this paragraph is rejected as misleading because, notwithstanding the self-serving comments in the Closing Order, the evidence before the original Probable Cause Panel was insufficient to warrant a finding of probable cause.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William L. Epstein, Esquire Broad & Cassel

Fifth Floor, Reflections Centre

400 Australian Avenue South West Palm Beach, Florida 33401

Dr. Marm Harris Executive Director Board of Medicine

Agency for Health Care Administration Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis General Counsel

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-007095F

Orders for Case No: 93-007095F