STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1753

)

JORGE A. HORSTMANN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Joel S. Fass, Esquire

North Miami, Florida

For Respondent: John W. Thornton, Jr., Esquire Miami, Florida

This matter was heard in Miami, Florida, by William R. Dorsey, Jr., the Hearing Officer designated by the division of Administrative Hearings on October 16, 1986. A transcript of the proceedings was filed and the parties have filed proposed findings of fact and conclusions of law. Rulings on proposed findings of fact are made in the appendix to this recommended

ISSUES

The Board filed a ten count complaint in this matter. The central issue is whether Dr. Horstmann billed Medicaid for office visits for children who he did not see and who, in fact, did not exist. The Board of Medicine contends that Dr. Horstmann's conduct violated Section 458.331(1)(i), Florida Statutes, by making or filing a report the licensee knew to be false, violated Sections

817.234 and 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician, and that his conduct violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when that trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. The Board also contends that by pleading no contest to a criminal charge of Medicaid fraud, Dr. Horstmann is subject to discipline.

FINDINGS OF FACT

1. Dr. Horstmann is a 63 year old Cuban-born medical doctor. He had been licensed to practice medicine and had been doing so in Cuba for 35 years. He was permitted to leave Cuba in 1979. He was licensed to practice medicine in the State of Florida on February 14, 1983. At the time of the investigation which gave rise to these charges he had been licensed to practice medicine in Florida for 4 months.

2. In early 1983, the Auditor General's Office of the State of Florida, Medicaid Fraud Unit, investigated certain pharmacists which computer audits showed to have excessive Medicaid charges. Dr. Horstmann was not a target of this investigation, which was headed by Detective John Nulty.

   
   

3. The Mariano Gonzalez pharmacy was targeted.

   
   

4. Dr. Horstmann knew Mariano Gonzalez since childhood. He had given Gonzalez business cards, asking Gonzalez to refer patients to him with allergy- related problems who did not have a doctor, as Dr. Horstmann wished to concentrate on allergy-related health problems. Those business cards were available at the pharmacy.

   
   

5. During the investigation of the Mariano Gonzalez pharmacy, agent Vivian Perez entered the pharmacy and acted as a Medicaid recipient using the name Vivian Toledo.

   
   

6. At the Mariano Gonzalez pharmacy on June 5, 1983, she was advised to see Dr. Horstmann and was given a Horstmann business card with the pharmacy stamp on the back of it.

   
   

7. Apparently, the Mariano Gonzalez pharmacy was engaged in a scheme to defraud Medicaid. It allowed Medicaid recipients to present scripts for prescriptions which were to be paid by Medicaid, and to purchase merchandise rather than prescription drugs or medicine for an amount equal to what would have been charged for the medication.

   
   

8. In the course of her investigation, agent Perez went to Dr. Horstmann's office on June 7, 1983. She presented Dr. Horstmann's secretary with a Medicaid card issued to her as part of the investigation bearing the name Vivian Toledo, and the names of the three fictitious children, Julio, Roger and Rafael Toledo. Dr. Horstmann did not examine agent Perez or any of the fictitious children, but as a result of the visit he gave agent Perez prescriptions for her and the three children. Agent Perez took these prescriptions to the Mariano Gonzalez pharmacy and used them to purchase non-pharmaceutical items. These prescriptions were not signed by Dr. Horstmann, but by Dr. Rodriguez-Cuellar, with whom Dr. Horstmann worked. Dr. Horstmann did not sign the prescriptions because, although he was a licensed physician, he had not yet received a Medicaid provider number of his own.

   
   

9. Agent Perez again visited Dr. Horstmann on July 12, 1983. He did not examine her or the fictitious children but gave agent Perez additional prescriptions for herself and the children, which he signed. They were used to purchase non- pharmaceutical items at the Mariano Gonzalez pharmacy.

   
   

10. Agent Perez visited Dr. Horstmann on a second occasion in July and in August 1983. Each time she received prescriptions for herself and the fictitious children which were used to purchase non-pharmaceutical items at the Mariano Gonzalez pharmacy.

    
    

11. Dr. Horstmann prepared medical charts for each of the fictitious children, which were introduced into evidence, indicating that these children had been examined by him. Dr. Horstmann signed the Medicaid health insurance claim forms for the children dated July 9, 12, 20 and 27; and August 17 and 23. Medicaid was billed a total of $100.00 for Julio Toledo, $70.00 for Roger Toledo and $90.00 Rafael Toledo based on these forms.

12. Dr. Horstmann understood when he wrote on the chart that he had seen the children that a bill would be prepared and sent to Medicaid. He signed all of the reimbursement forms. He received payment from Medicaid on the claims he submitted.

    
    

13. Dr. Horstmann was charged with Medicaid fraud and entered a plea of no contest. A certified copy of the order placing him on probation was offered for identification but not received in evidence. After the certified copy of the probation order was obtained, an order was entered by the Circuit Court for the 11th Judicial Circuit sealing the records of Dr. Horstmann's conviction.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Bearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1985).

    
    

15. Count One charges Dr. Horstmann with inducing Dr. Rodriguez-Cuellar to make billings for Ms. Toledo and her three fictitious children on June 6, 1983. There is no evidence in the record that a claim form was submitted by Dr. Rodriguez-Cuellar with respect to those visits. There is no proof of violation of Section 458.331(1)(i), Florida Statutes (1983), and Count One is dismissed.

    
    

16. Relying on the same factual allegations from Count One, Count Two alleges that Dr. Horstmann violated Section 817.234, Florida Statutes, which prohibits physicians from knowingly and willfully assisting an insured party in filing false and fraudulent insurance claims. Based on the absence of proof that a claim was submitted by Dr. Rodriguez-Cuellar for the June 6, 1983, visit, Count Two is dismissed.

    
    

17. Relying on the same factual allegations made in Count One, Count Three alleges that Dr. Horstmann violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine which fails to conform to generally prevailing standards of treatment in the medical community. It was no doubt wrong to have written prescriptions during that first office visit for the non-existent children. That conduct might be punishable under Section 458.331(1)(q), Florida Statutes, but that is not the section on which the count is based. In the absence of proof that the prescription led to a false Medicare billing, there is no one who was defrauded by the prescription. Since the conduct is not forbidden by the statute cited in Count Three, Count Three is dismissed.

    
    

18. With respect to the incidents on July 12, 1903, alleged in Count Four, which resulted in billings for office visits by Julio Toledo, Roger Toledo and Rafael Toledo, Dr. Horstmann is guilty of making or filing a report which he knew to be false in violation of Section 458.331(1)(i), Florida Statutes (1983).

    
    

19. Similarly, with respect to Count Five, by filing those false insurance claim forms, Dr. Horstmann violated Sections 817.234(1)(a)(2), 817.234(2) and 817.234(6), Florida Statutes (1983), which serve as predicate offenses supporting a finding that he violated Section 458.331(1)(h), Florida Statutes (1983), by failing to perform a statutory obligation placed on physicians.

20. Those acts also support a finding of violation of Section 458.331(1)(1), Florida Statutes (1983), as alleged in Count Six, for making deceptive, untrue or fraudulent representations in the practice of medicine which fail to conform to generally prevailing standards of treatment in the medical

    
    

21. As to Count Seven, the insurance claims submitted for Roger and Rafael Toledo on July 20, 1983, and for Julio Toledo on July 27, 1983, these constitute violations of Section 458.331(1)(i), Florida Statutes (1983). See Conclusion of Law 5, above.

    
    

22. Those same facts also constitute the violation of Section 458.331(1)(h), Florida Statutes (1983), alleged in Count Eight and a violation of Section 458.331(1)(1), Florida Statutes (1983),did occur as alleged in Count Nine. See Conclusions of Law 6 and 7, above.

    
    

23. Count Ten alleges a violation of Section 458.331(1)(c), Florida Statutes (1983), by Dr. Horstmann's conviction of a crime which directly relates to the practice of medicine. A criminal action for Medicaid fraud was filed against Dr. Horstmann, and he plead nolo contendere. A copy of an order of the Circuit Court in Dade County Granting Probation and Fixing Terms Thereof was offered but not received in evidence as Petitioner's Exhibit #1. It shows adjudication of guilt was withheld and Dr. Horstmann was placed on probation. The Respondent opposed the introduction of that exhibit and any evidence with respect to the withholding of adjudication because an Order to Seal Records Pursuant to Florida Statutes 943.058 and Florida Rule of Criminal Procedure 3.692 was entered approximately one month after the probation order. The certified copy of the Order Granting Probation and Fixing Terms Thereof was obtained from the clerk of the circuit court before the order to seal records was entered. The Board takes the position that because it obtained the copy of the probation order before the records were sealed, it is admissible in evidence to prove the plea of nolo contendere. This is not so. It is unimportant that the copy of the order granting probation was obtained before the record was sealed. Under Section 943.058, Florida Statutes, an order sealing records does more than disable the Board of Medicine from obtaining copies of criminal court records after the date the order sealing the record is entered. Section 943.058(6)(a) provides:

The effect of expunction or sealing of criminal history records under this section ... shall be as follows:

When all criminal history records, including the records

maintained by the Department of Law Enforcement and the courts, have been expunged, the subject of such records shall be restored, in the full and unreserved contemplation of the law, to the status occupied before the arrest, indictment,

information, or judicial proceedings covered by the expunged record.

After the entry of an order sealing the record of the criminal proceeding, Dr. Horstmann was placed in the same situation as if he had never been the subject of a criminal proceeding or pleaded nolo contendere to Medicaid fraud. It is

true, as the Board points out, that the order sealing the file does not disable the Board from independently proving the conduct which gave rise to the criminal proceeding and imposing discipline for those acts. Those acts have been the subject of Counts Four, Five, Six, Seven, Eight and Nine, on which the Board has prevailed. On Count Ten, however, the Board is required to prove that Dr.

Horstmann was found guilty of a crime or plead nolo contendere to a crime. Section 943.058(6)(a) makes this impossible. As a result, Count Ten must be dismissed.

RECOMMENDATION

Based upon the violations of the Medical Practice Act which Dr. Horstmann committed, including filing false Medicaid reports and billing Medicaid for treating fictitious children, as well as making deceptive, untrue and fraudulent representations in the practice of medicine, it is

RECOMMENDED:

That Dr. Horstmann's license be suspended for a period of six (6) months. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1753

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

(Treating the paragraphs of the findings of fact as if they had been serially numbered.)

1. Covered in Findings of Fact 2 and 4.

2. Covered in Finding of Fact 8.

3. Covered in Finding of Fact 9.

4. Covered in Finding of Fact 10.

5. Covered in Findings of Fact 11 and 12.

Rulings on Proposed Findings of Fact Submitted by Respondent

1. Covered in Finding of Fact 2.

2. Sentence 1 covered in Finding of Fact 3. Sentence 2 covered in Finding of Fact 2.

3. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary.

4. Sentence 1 covered in Finding of Fact 5. Sentences 2 and 3 rejected as unnecessary.

5. Covered in Finding of Fact 6.

6. Rejected as unnecessary

7. Covered in Finding of Fact 1.

8. Covered in Finding of Fact 4.

9. Generally rejected as a recitation of testimony rather than findings of fact.

10. Rejected because whether Dr. Horstmann was familiar with Medicaid procedures is not relevant. It is clear that he understood that he submitted bills for visits which never occurred.

11. Rejected because Dr. Horstmann's beliefs as to agent Perez' financial condition in no way justifies submitting fraudulent medicaid reimbursement requests.

12. Covered in Finding of Fact 11.

13. Rejected because I accepted the testimony of agent Perez that she did not provide the symptoms to Dr. Horstmann that are found in the charts for the fictitious children.

14. Accepted in the Conclusions of Law because there was no evidence concerning bills submitted by Dr. Rodriguez- Cuellar being reimbursed by Medicaid.

15. Covered in Finding of Fact 9.

16. Covered in Finding of Fact 11.

17. Covered in Finding of Fact 12. The amount received was greater than $45.00.

18. To the extent necessary, covered in Finding of Fact 10.

19. Covered in Findings of Fact 10 and 11.

20. Rejected because I find that Dr. Horstmann knew that he was billing Medicare for visits which never occurred. This was not merely the result of an error by a receptionist.

21. Rejected as irrelevant.

22. Covered in Finding of Fact 12.

23. Rejected as a recitation of testimony, not a finding of fact.

COPIES FURNISHED:

Joel S. Fass, Esquire

COLODNY, FASS & TALENFELO, P.A.

626 N.W. 124th Street North Miami, Florida 33161

John W. Thornton, Jr., Esquire THORNTON & ROTHMAN, P.A.

2860 Southeast Financial Center Miami, Florida 33131

Van Poole, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Benton, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001753

Orders for Case No: 86-001753