STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05-1458PL

)

EDUARDO MENDEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 13, 2005, at Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Irving Levine, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: William M. Furlow, III, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200 Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

This is a license discipline case in which the Petitioner, by means of a one-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his

alleged violation of Section 458.331(1)(c), Florida Statutes (2002).

PRELIMINARY STATEMENT

At the final hearing on July 13, 2005, the Petitioner offered two exhibits, both of which were received in evidence without objection. The Respondent offered one exhibit, which was also received in evidence without objection. The only witness who testified at the final hearing was the Respondent.

At the conclusion of the final hearing, the parties requested, and were allowed, ten days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the final hearing was filed with the Division of Administrative Hearings on August 2, 2005. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Eduardo S. Mendez, M.D., was born in Cuba, was reared in Cuba, and was educated in Cuba. His education in Cuba included a degree in Medicine. He came to the United States of America in 1995. Shortly after moving to this country, the Respondent became the owner of a retail pharmacy

   and medical equipment business in Florida. The Respondent did not have a license to practice pharmacy in Florida.

2. On the basis of conduct which took place between July of 1998 and June of 2000, an Information was issued in Case No. 02-20859 in the United States District Court for the Southern District of Florida charging the Respondent with engaging in a conspiracy to pay and receive health care

kickbacks in violation of Title 18, United States Code, Section

371. The basic facts forming the basis for the criminal charge are described as follows in the Information:

1. Medicare was a "Federal health care program" as defined in Title 42, United States Code, Section 1320a-7b(f)(1).

   
   

2. Confortec D.M.E., Inc. ("Confortec") was a pharmacy located in Miami, Florida. Confortec was authorized by Medicare to submit claims to Medicare Part B for reimbursement of the cost of certain medications that Confortec dispensed by prescription to Medicare beneficiaries.

   
   

3. Defendant EDUARDO S. MENDEZ was a resident of Miami and the sole owner of Confortec. Defendant EDUARDO S. MENDEZ offered to pay kickbacks to various patient recruiters so that they would provide the names and Medicare identification numbers of Medicare beneficiaries, along with prescriptions relating to these beneficiaries. Confortec filled these prescriptions and then filed claims with Medicare for reimbursement of the cost of the prescribed medications. After receiving payment on these claims from Medicare, defendant EDUARDO S. MENDEZ used a portion

of the payments to pay kickbacks to the patient recruiters or their associates.

* * *

12. Using a portion of the money received from Medicare payments, defendant EDUARDO S. MENDEZ paid or caused to be paid approximately $200,000 in kickbacks to the patient recruiters or their associates so that the recruiters would continue to refer Medicare beneficiaries and related Medicare prescription business to Confortec.

1. Following his arrest, the Respondent cooperated extensively with the Federal Bureau of Investigation (FBI) and assisted the FBI in their investigation of his own activities, as well as in their investigation of similar criminal activities by others. Because of the Respondent's assistance to the FBI, the federal prosecutor recommended a substantial reduction in the sentence that might otherwise have been imposed on the Respondent.

2. On November 14, 2000, the Respondent entered into a plea agreement in which he agreed "to plead guilty to an Information or an Indictment that charges him with the crime of conspiracy to commit an offense against the United States, namely, a violation of Title 42, United States Code, Section 1320a-7b(b)(2)(knowingly and intentionally offering and paying kickbacks and bribes to any person to induce the referral of individuals for the furnishing of services or items for which

   payment may be made under a Federal health care program), in violation of Title 18, United States Code, Section 371."

3. On or about February 12, 2003, a United States District Judge signed a judgment in which the Respondent was adjudicated guilty of the criminal offense described above. The Respondent's sentence was three years of probation, three months of home confinement (with electronic monitoring), 150 hours of community service, and a fine of $100.00. The Respondent has fulfilled all of the terms of his sentence.

4. Although the recruitment methods described above are prohibited by federal law and are a crime, that criminal activity does not involve any element of fraudulent billing seeking reimbursements from the Medicare program for services or items that were not provided. To the contrary, all of the prescriptions for which Confortec sought Medicare reimbursement were prescriptions that were actually filled for medications that were actually provided to the Medicare beneficiaries.

5. During the period from July of 1998 through June of 2000, the Respondent did not have a license to practice medicine in Florida. Accordingly, the criminal conduct described above was not related to the Respondent's practice of medicine, because the Respondent was not practicing medicine at that time.

6. As discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related

   to the practice of medicine by the physicians who wrote the prescriptions that were filled in the course of the subject criminal activity.

7. As also discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the ability to practice medicine.

8. The Respondent is presently a physician licensed to practice medicine in the State of Florida. He has been so licensed since November of 2001. His license number is 83615.

9. The criminal charges described above are the only criminal charges that have ever been filed against the Respondent. There has never been any prior disciplinary action taken against the Respondent's license to practice medicine.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005).

11. Pursuant to Section 458.331(2), Florida Statutes (2002), the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license to practice medicine of any physician found guilty of the acts enumerated in Section 458.331(1), Florida Statutes (2002). The enumerated acts include the following:

    (c) Being 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.

    
    

12. In a disciplinary action of this type, the burden is on the Petitioner to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. The clear and convincing evidence standard requires that the evidence be found to be credible; the facts to which witnesses testify must be distinctly remembered; the testimony must be precise and explicit; and the witnesses must be lacking in confusion as to the facts in issue. The evidence must produce in the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

13. In this case, the Petitioner has proved by clear and convincing evidence that the Respondent pled guilty to, and was convicted of, the crime described in the Findings of Fact. The Respondent does not dispute that conviction, but argues that it is not a crime directly related to the practice of medicine and that it is not a crime directly related to the ability to practice medicine. Turning first to the issue of whether the crime described in the Findings of Fact is directly related to

    the practice of medicine, it is first noted that an essential aspect of that crime involved the filling of prescriptions for medicines for Medicare beneficiaries. It is common experience that the vast majority of prescriptions that are filled by retail pharmacies are prescriptions written by physicians.1 And it is also common experience that the vast majority of prescriptions written by physicians are written for the purpose of treating or preventing human disease or injury. Therefore, the crime of which the Respondent was convicted was a crime directly related to the practice of medicine, because it was directly related to the practice of medicine by the physicians who wrote the prescriptions. That is enough to meet the requirements of Section 458.331(1)(c), Florida Statutes. See Department of Health, Board of Medicine v. Lionel Resnick, M.D., DOAH Case No. 00-0280 (Recommended Order issued November 21, 2000, Final Order filed March 27, 2001, appeal dismissed, 810 So. 2d 951 (Fla. 3d DCA 2002))2

14. The crime to which the Respondent pled guilty and was convicted is also a crime that directly relates to the ability to practice medicine. It is clear from the Board's final orders in cases such as Resnick, supra, and Department of Professional Regulation v. Aaron E. Long, M.D., DOAH Case No. 89-4430 (Final Order issued April 7, 1990), affirmed without opinion at 580 So. 2d 754 (Fla. 1st DCA 1991), that the Board is of the view that

    personal qualities essential to the practice of medicine include reliability, honesty, and good moral character.3 In its Final Order in Long, supra, the Board's explanation of its view included the following:

    3. Convictions for fraud and conspiracy necessarily affect the ability to practice medicine, as a physician's professional judgment, ethical standards and the trust placed in physicians by patients are all implicated in these convictions. [Citation omitted.] Integrity and trustworthiness of health care providers in insurance matters is a necessity for our system of delivery of health care services to function properly. [Citation omitted.] The prevention of breaches of trust is vital to maintain the integrity of the medical profession, and thereby insure the care given to patients is justifiable and proper.

    
    

15. The crime to which the Respondent pled guilty and was convicted demonstrates that the Respondent lacked the essential qualities mentioned above at the time he committed the subject crime.4 And, unlike the case of Department of Professional Regulation, Board of Medicine v. Jose L. Vazquez, M.D., DOAH Case No. 92-1078 (Recommended Order issued February 4, 1993; Final Order issued April 13, 1993), the record in this case contains no persuasive evidence of any rehabilitation or present good moral character of the Respondent. Accordingly, the circumstances in this case are more like those in Resnick and Long, and less like those in Vazquez.

16. With regard to the determination of the appropriate penalty, attention is first directed to Section 120.68(7)(e)3, Florida Statutes (2002), which provides that, absent an explanation for doing otherwise, an agency should act in a manner that is consistent with "officially stated policy or a prior agency practice." Applying that statutory directive to the circumstances of this case, the penalty in this case should be consistent with the range of penalties imposed in Resnick and Long. And as between those two cases, the circumstances of this case seem to be more similar to Long than to Resnick. Although the circumstances here are similar to those in Long, the crime at issue here is an offence of lesser gravity than the offence at issue in Long.5 But even though of lesser gravity, the offense at issue here is still a substantial offense that warrants a substantial penalty. Such being the case, it would appear that the appropriate penalty in this case should be no more than something similar to the penalty imposed in Long, but not necessarily substantially less than the penalty imposed in Long. The penalty imposed in Long was as follows:

    1. Respondent's license to practice medicine in the State of Florida is SUSPENDED for a period of one year.

       
       

    2. Respondent shall pay an administrative fine in the amount of $400 to the Executive Director at the time of or prior to the petition for reinstatement.

    3. Upon reinstatement of the suspended license, Respondent's license to practice medicine in the State of Florida shall be placed on PROBATION for a period of 5 years, subject to the terms and conditions to be set at that time.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violating Section 458.331(1)(c), Florida Statutes (2002), and imposing the following penalties:

1. Suspending the Respondent's license to practice medicine for a period of nine months;

2. Imposing an administrative fine in the amount of five thousand dollars; and

3. When the Respondent is reinstated following the nine- month period of suspension, placing the Respondent on probation for a period of two years subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate.

DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2005.

ENDNOTES

1/ It is also clear from the language of the Information against the Respondent that the crime at issue here involved prescriptions written by physicians. See paragraph 2 of the Information which states, in pertinent part: "The Medicare Part B program paid for a portion of the cost of certain medications prescribed by physicians for Medicare beneficiaries." [Emphasis added.]

2/ In the Recommended Order in Resnick, supra, the clause in Section 458.331(1)(c), Florida Statutes, reading "a crime in any jurisdiction which directly relates to the practice of medicine" was interpreted as not being limited to crimes that directly related to the Respondent's practice of medicine. Rather, it was more broadly interpreted as also encompassing crimes that directly related to the practice of medicine by physicians other than the physician who committed the crime. In this regard, paragraph 24 of the conclusions of law in the Resnick Recommended Order states:

24. The Respondent argues that his activities as Director of the retrovirology laboratory were not directly related to the practice of medicine because the laboratory had no patients of its own and the Respondent never saw any of his private practice patients at the laboratory. But this argument ignores the purposes for which the University of Miami Hospital and All Children's Hospital were paying to have patient samples tested at the Mount Sinai retrovirology laboratory. The primary activity of those hospitals is the treatment of sick and injured patients. The primary treatment of the hospitalized patients is provided by physicians. The obvious purpose of the lab tests requested by the hospitals was to obtain scientific information that would be useful to the physicians at the hospitals in making treatment decisions for their hospitalized patients. The physicians at the University of Miami Hospital and at All Children's Hospital who ultimately received the results of the testing done at the Mount Sinai retrovirology laboratory were clearly practicing medicine.

Therefore, the performance of the tests and the furnishing of the results were directly related to the practice of medicine by the physicians at University of Miami Hospital and at All Children's Hospital. That is enough to meet the requirements of Section 458.331(1)(c), Florida Statutes. [Emphasis in original.]

The above-quoted interpretation of Section 458.331(1)(c), Florida Statutes, was accepted by the Board of Medicine without modification or qualification in the Board's Final Order in Resnick. The same interpretation should be applied here.

3/ These views are founded in part on the requirement of Section 458.311(1)(c), Florida Statutes (2005), that a person seeking to be licensed as a physician must be "of good moral character."

4/ Similar conclusions have been reached in a number of other cases in a variety of factual circumstances. See Rush v.

Department of Professional Regulation, Board of Podiatry, 448

So. 2d 26 (Fla. 1st DCA 1984); Ashe v. Department of Business and Professional Regulation, 467 So. 2d 814 (Fla. 5th DCA 1985); Greenwald v. Department of Professional Regulation, 501 So. 2d 740 (Fla. 3rd DCA 1987), rev. denied, 511 So. 2d 998, cert.

denied, 484 U.S. 986 (1987); Agency for Health Care Administration, Board of Medicine v. Douglas Earl Nalls, M.D., DOAH Case Nos. 93-2704 and 94-1129, (Recommended Order issued February 3, 1995); Department of Health, Board of Chiropractic v. Joseph Forlizzo, DOAH Case No. 98-4865, (Recommended Order issued February 15, 2000).

5/ The crime at issue in Long involved a "scheme to defraud insurance companies by faking automobile accidents and injuries and submitting inflated medical bills." The crime at issue here did not involve any fraud. At the sentencing proceedings in this case it was recognized that the offense involved here was not as serious an offense as cases involving "fraudulent billing" or "being billed for services or medicines that were not being provided." See Respondent's Exhibit No. 1, page 10, lines 9-19.

COPIES FURNISHED:

Irving Levine, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

William M. Furlow, III, Esquire Akerman Senterfitt

106 East College Avenue, Suite 1200 Tallahassee, Florida 32301

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 05-001458PL

Orders for Case No: 05-001458PL