STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAYMOND VELOSO, )
)
Petitioner, )
)
vs. ) CASE NO. 90-1109
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on May 22, 1990 in Miami, Florida.
APPEARANCES
For Petitioner: Andrea Newman, Esquire
Michael P. Weisberg, Esquire Fourth Floor, 1840 Coral Way Miami, Florida 33145
For Respondent: Carl Bruce Morstadt, Esquire
Chief Medicaid Counsel Department of Health and Rehabilitative Services 1317 Winewood Boulevard
Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES
The issue presented is whether Dr. Veloso committed the acts alleged in sanction letter dated December 5, 1989, as amended, and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
By letter dated December 5, 1989, Respondent seeks to impose administrative sanctions against Petitioner which include the termination of Petitioner as a provider under the Medicaid program and to impose an administrative fine of
$2,000 against him. Respondent's action is predicated upon its allegation that Petitioner has pled guilty to one count of Medicaid fraud, in violation of Paragraphs 409.266(11)(g) and (h), Florida Statutes. On January 31, 1990, Petitioner contested the allegations in the Respondent's letter and requested a formal hearing. Then, on February 16, 1990, Respondent forwarded the matter to the Division of Administrative Hearings and requested that a Hearing Officer be appointed to conduct the hearing pursuant to Subsection 120.57(1), Florida Statutes.
The undersigned was duly transferred the case on May 21, 1990 from the previous Hearing Officer, William R. Dorsey, Jr.
At the hearing and without objection, Respondent was granted leave to amend its sanction letter to include violation of Paragraph 409.266(11)(a), Florida Statutes and to rescind the imposition of the administrative fine. Also, at the hearing the parties were instructed that although the style of the case, as referenced above, indicates that Dr. Veloso is the Petitioner and the Department of Health and Rehabilitative Services is the Respondent in this action, the Department of Health and Rehabilitative Services has the burden of proving the allegations in its sanction letter, as amended. Throughout the remainder of this recommended order, the parties will be referred to as Dr. Veloso and the Department for clarity.
At the hearing, the Department presented the testimony of two witnesses and offered nine exhibits which were received into evidence without objection. Dr. Veloso testified on his own behalf and offered six exhibits which also were received into evidence without objection. A transcript of the proceeding was filed on June 12, 1990 and proposed recommended orders were due on June 22, 1990. The parties filed their proposed recommended orders, and a ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.
FINDINGS OF FACT
At all times material hereto, Dr. Veloso was a provider of medical services to persons who qualify for the Medicaid program and received reimbursement from Medicaid funds for his services. The Department is designated to administer the provision of Medicaid funds in Florida.
Dr. Veloso is a licensed physician and a licensed pharmacist who practices in South Florida and whose patients are primarily Medicaid eligible. Dr. Veloso does not necessarily maintain a regular office practice. In addition to treating patients at his offices in West Palm Beach and Miami, he sees them at their homes, at the pharmacy or wherever is most convenient to the patients. As a provider of services to Medicaid eligible patients, Dr. Veloso is charged with the responsibility of being familiar with the rules and law relating to the Medicaid program.
On November 4 1987, the Medicaid Fraud Control Unit of the Office of the Auditor General received a call alleging that Dr. Veloso was making a copy of a Medicaid card when he filled a prescription. Dr. Veloso was employed at the caller's pharmacy as a part-time pharmacist. An investigation of Dr. Veloso's medicaid billing practice ensued.
The investigation revealed that Dr. Veloso was billing for office visits on Miami Medicaid residents although his practice of record was located in West Palm Beach. The investigators interviewed sixteen households for whom Medicaid billings had been submitted by Dr. Veloso. The interviews resulted in the taking of sworn statements of six of the patients from the sample households who denied that they had received the treatment for which Dr. Veloso had filed reimbursement. None of the six patients was present or testified at the hearing.
In his testimony, however, Dr. Veloso, countered the denials of each of the six patients. He described the treatment he had given each of the six and produced the patients' medical records to verify his statements. As to why the patients allegedly made the contradictory statements, Dr. Veloso asserted that they were quite possibly intimidated by the investigator since the patients did not have complete command of the English language and the investigator presented herself with an official badge for identification prior to the interview. Dr. Veloso also stated that if any mistakes had been made, they were only clerical. He explained that his wife prepared most of his billings at their home, and although he admitted that he was responsible for her actions, he represented that mistakes, if any, were inadvertently made.
At the hearing, the investigator testified that it was her conclusion that Dr. Veloso did knowingly file false claims for services. Although the files for the six patients were received into evidence and each corroborates that he did in fact treat the patients, the actual disputed billings were not offered at the hearing. A comparison between the treatment given to the patients and the alleged fraudulent billings cannot be made.
Given the demeanor of the witnesses, the competent substantial evidence received at the hearing and the lack of corroboration of the affidavits of the six patients, Dr. Veloso's testimony is deemed credible.
Criminal proceedings were brought against Dr. Veloso. Dr. Veloso asserted that on the advice of his attorney, he entered his plea on October 2, 1989. The choice of plea on the judgment and sentencing form filed in this case is indicated by checking one of the three blocks on the form. The first block precedes the following statement, "Been tried and found guilty of the following crime(s)." The second block is followed by, "Entered a plea of guilty to the following crime(s)," and the final choice is a block notated by "Entered a plea of nolo contendere to the following crime(s)." The block checked in Dr. Veloso's case is the second block. Above the "X" in the block is a handwritten statement, "Alford Plea." Dr. Veloso argued that it was not his intent to enter a plea which would be an admission of culpability. He entered his plea as merely a matter of convenience and on the representation of his counsel that the plea would result in punishment similar to a misdemeanor traffic offense. Dr. Veloso, further, testified that his plea was on appeal. Except for Dr. Veloso's statements and the official court documents, no additional competent substantial evidence was presented at the instant hearing concerning the circumstances present at the time of Dr. Veloso's plea.
However, the judgment and sentencing form dated October 2, 1989 clearly indicates that he entered a plea of guilty to and was adjudicated guilty of a lesser included offense of medicaid fraud under Paragraph 409.325(5)(b), Florida Statutes. His sentence was stayed, and on October 6, 1989, an Order was issued in the Circuit Court of Palm Beach County withholding adjudication for the offense and placing Dr. Veloso on probation for one year and requiring that restitution be paid to the Department of $492.00 plus costs.
Although Dr. Veloso is a well intended physician, he was, in fact, found guilty of Medicaid fraud, based on a plea of guilty and is subject to termination from further participation in the Medicaid program under existent law, if the Department chooses to exercise its discretion to sanction him.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Subsection 120.57(1), Florida Statutes.
The Department is designated as the state agency responsible for the administration of Medicaid funds under Subsection 409.266(1), Florida Statutes, and has the authority to impose administrative sanctions on a Medicaid provider, such as Dr. Veloso, upon proof, by a preponderance of the evidence, that the provider has committed specified acts set forth in Subsection 409.266(11), Florida Statutes.
Since this case is one in which the Department seeks to impose an administrative sanction against Dr. Veloso, the Department has the burden to establish, by a preponderance of the evidence, that the alleged violations have occurred.
The sanction letter alleges that Dr. Veloso violated Paragraphs 409.325(4)(a) and (5)(a) and, Florida Statutes and that the violations are grounds for the imposition of administrative sanctions under Paragraphs 409.266(11)(g) and (h), Florida Statutes. Paragraphs 409.266(11)(g) and (h) provide as follows:
The department may impose administrative sanctions on a provider participating in the Medicaid program when:
The provider is in noncompliance with officially adopted departmental Medicaid policy manuals, the Florida Administrative Code the Florida Statutes, or the Federal Rules and Regulations as they pertain to the Medicaid program.
The provider fails to comply with conditions prescribed in the Medicaid provider agreement executed between the department and the provider or contained in certifications found on claim forms signed and submitted by the provider or a duly authorized representative.
Essential to the proof of a violation of Paragraph 409.266(11)(h) is the proof of the Medicaid provider agreement executed between the Department and Dr. Veloso or the certifications found on the claim forms. Neither the agreement nor the claim forms were offered or received into evidence. Without that, the Department fails in proving any violation of Paragraph 409.266(11)(h).
Paragraph 409.266(11)(g) authorizes administrative sanction for any relevant violation of the Department's Medicaid policy manuals, the Florida Administrative Code, the Federal rules relating to Medicaid or the Florida Statutes. The sanction letter did not allege a violation of the manual, the State rules or the Federal rules. Accordingly, proof of a violation of Paragraph 409.266(11)(g) must rely on a the alleged violations of the specific Florida Statutes noted in the sanction letter. The sanction letter alleges violation of Paragraphs 409.325(4)(a) and (5)(a).
Paragraph 409.325(4)(a) prohibits any person from knowingly filing a false claim. Here, the weight of the competent substantial evidence, as supported by the demeanor of Dr. Veloso, indicates that if Dr. Veloso did file an incorrect claim, he did so inadvertently and without the requisite knowledge. Dr. Veloso was merely attempting to serve his patients as best he could from his several offices whether they were in West Palm Beach, in Miami, in the pharmacy in Miami or at his patients' homes. At the time the claims were filed, he had no knowledge that they might be in error, but merely wished reimbursement for his service. A mistake, if any, was inadvertent.
Paragraph 409.325(5)(a) establishes the criminal penalty for wrongfully sought assistance of a certain amount and has not been demonstrated as relevant to this proceeding.
The amendment to the sanction letter adds another allegation, asserting that Dr. Veloso has pled guilty to one count of Medicaid fraud and pursuant to Paragraph 409.266(11)(a) is subject to administrative sanction. Paragraph 409.266(11)(a) provides as follows:
The department may impose administrative sanctions on a provider participating in the Medicaid program when:
(a) The provider has been convicted, regardless of adjudication, or found guilty, whether based upon a plea of guilty, not guilty, or nolo contendere, of fraud related to Medicaid or Medicare. Any sanction imposed for this reason shall be limited to termination from further participation in the Medicaid program.
Although the Department failed to prove the first two counts of its sanction letter, it did demonstrate by a preponderance of the evidence that Dr. Veloso was found guilty of fraud related to Medicaid based on a plea of guilty and is subject to the administrative sanction of termination from participation in the Medicaid program.
Dr. Veloso argued that he is innocent, that he never admitted his guilt and that this is represented by his entry of an "Alford Plea." In her proposed recommended order, Dr. Veloso's counsel argued that an "Alford Plea", "is not a plea of admittance of guilt, but is offered either out of a desire to resolve all matters as expediently as possible, or because it is believed to be in one's best interest."
No authority is cited for counsel's argument, nor do The Florida Rules of Criminal Procedure recognize an "Alford Plea" as an available, distinct plea. Fla. R. Crim. P. 3.170. The plea most similar to that described by Dr. Veloso'S counsel is a nolo contendere plea. However, the evidence, as demonstrated by the judgment and sentencing form, indicates that Dr. Veloso had the opportunity to elect a nolo contendere plea. Instead, however, he chose to plead guilty. 1/
Although the proof demonstrated that Dr. Veloso was found guilty of fraud related to Medicaid based on a plea of guilty, the proof offered at the instant hearing failed to show that Dr. Veloso, in fact, committed Medicaid fraud. The Department points out in its proposed recommended order that the only sanction available to it upon a determination that a provider, such as Dr. Veloso, has been found guilty of Medicaid fraud, as proven here, is termination from participation in the Medicaid program and that the Department has consistently imposed termination in lieu of any other sanction. The Department is correct in its analysis of Paragraph 409.236(11)(a). However, the imposition of the sanction is discretionary. Subsection 409.236(11). Under the facts proven in this case, the Department may exercise its discretion and not impose the sanction. See Kinney v. Department of State, Division of Licensing, 501 So.2d 129 (Fla. 5th DCA 1987).
Based on the foregoing Findings of Fact and Conclusions of Law, it is:
RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order dismissing the charges against Dr. Veloso and not imposing the sanction permitted pursuant to Paragraph 409.236(11)(a), Florida Statutes, based on the exercise of its discretion.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28 day of June, 1990.
JANE C HAYMAN
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 28th day of June, 1990.
ENDNOTES
1/ An "Alford Plea" may be the result of the holding in North Carolina v. Alford, 400 U.S. 25 (1970). There, the Court vacated the judgment of the Court of Appeals for the Fourth Circuit which had found the guilty plea of Alford invalid. In upholding the plea, the Court distinguished the plea from a plea of nolo contendere resulting in a finding of guilt and a plea of guilty which is not accepted due to the mental state of the accused. The three elements of the recognized plea in Alford were the following: 1) a consistent affirmance of innocence, 2) a waiver of right to a trial authorizing the court, for purposes of the case, to treat the accused as if he were guilty and 3) the existence of a record, at the time of the plea, which contains overwhelming evidence against the accused.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1109
The following represents the Hearing Officer's rulings on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact section of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
Adopted in paragraph 1 and, in part, in paragraph 2.
Adopted in paragraph 1.
Adopted in paragraph 3.
Adopted, in part, in paragraph 3 and 8; in part, not supported by competent substantial evidence.
Adopted in paragraphs 8, 9 and 10.
Adopted in paragraph 9.
Adopted in paragraph 9.
Rejected as not supported by competent evidence.
Adopted as preliminary matter.
Adopted as preliminary matter.
Adopted, in part, in paragraphs 2 and 8; in part, rejected as not supported by competent substantial evidence.
Adopted in relevant part in paragraph 10.
Adopted in relevant part in paragraph 10.
Rejected as not supported by competent substantial evidence.
Rejected as not supported by competent substantial evidence and conclusion of law.
Dr. Raymond Veloso
Adopted in paragraphs 1 and 2.
Adopted in paragraph 3.
Adopted in paragraph 2.
Adopted, in part, in paragraph 5; in part, rejected as not supported by competent substantial evidence.
COPIES FURNISHED:
Andrea Newman, Esquire Michael P. Weisberg, Esquire Fourth Floor, 1840 Coral Way Miami, Florida 33145
Carl Bruce Morstadt, Esquire Chief Medicaid Counsel Department of Health and
Rehabilitative Services 1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Sam Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407
Tallahassee, Florida 32399-0700
John Miller General Counsel
Department of Health and Rehabilitative Services
1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RAYMOND VELOSO, )
)
Petitioner, )
vs. ) CASE NO. 90-1109
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER ON REMAND
This matter was first heard by Jane Hayman, the Hearing Officer designated by the Division of Administrative Hearings, on May 22, 1990, in Miami, Florida. Following the resignation of Hearing Officer Hayman, an additional hearing was held as required by an order of remand entered by the Third District Court of Appeal by William R. Dorsey, Jr., the Hearing Officer then designated by the Division of Administrative Hearings, in Tallahassee, Florida, on May 30, 1991.
APPEARANCES
For Petitioner: Andrea Newman, Esquire
Michael P. Weisberg, Esquire 1840 Coral Way
4th Floor
Miami, FL 33145
For Respondent: Carl B. Morstadt, Esquire
Chief Medicaid Counsel and Karel Baarslag, Esquire Department of Health and
Rehabilitative Services 1317 Winewood Boulevard
Tallahassee, FL 32399-0700
STATEMENT OF THE ISSUE
The issues are 1) whether Dr. Veloso's eligibility to participate in the Florida Medicaid program as a provider of physician services should be terminated, due to his guilty plea to a charge of Medicaid fraud in the Circuit Court for the 15th Judicial Circuit, Palm Beach County, Florida and 2) whether a stay of the termination should be granted pending disposition of Dr. Veloso's appeal.
PRELIMINARY STATEMENT
The Department of Health and Rehabilitative Services gave notice to Dr. Raymond Veloso, on December 5, 1989, that it intended to terminate him as a provider of physician services under the Florida Medicaid program, and to impose an administrative fine on him of $2,000. The Department took this action because Dr. Veloso had pled guilty to one count of Medicaid fraud, which it believed authorized discipline under Section 409.266(11)(g) and (h), Florida Statutes (1987). Dr. Veloso contested the Department's allegations and requested a formal hearing, which was conducted on May 22, 1990, by Hearing Officer Jane Hayman.
During the hearing, the Department dropped the claim for the imposition of an administrative fine, and moved to amend its notice of charges to add a violation of Section 409.266(11)(a), Florida Statutes (1987). The amendment was allowed.
At the hearing, the Department presented the testimony of two witnesses and offered nine exhibits into evidence. Dr. Veloso testified in his own behalf and offered six exhibits which were received in evidence. A transcript of the proceeding was filed on June 12, 1990. Hearing Officer Hayman entered her Recommended Order on June 28, 1990, in which she found that although Dr. Veloso had filed false Medicaid claims, he had not done so knowingly, but only through inadvertence, and consequently the Department had failed to establish a violation of Section 409.325(4)(a), Florida Statutes (1987). She also found the Department had failed to establish a violation as alleged in Count II, because that count is based upon a violation of Section 409.325(5)(a), Florida Statutes (1987) which sets the criminal penalty for Medicaid fraud, and the criminal statute was not relevant to the administrative proceeding. She did find that the Department had proven the charge added at the beginning of the hearing, that Dr. Veloso had been found guilty of fraud related to Medicaid. She made a further finding, however, that Dr. Veloso had not been shown to have actually committed Medicaid fraud. She therefore recommended that the Department impose no sanction against Dr. Veloso.
The Final Order entered on behalf of the Secretary of on October 15, 1990, accepted the exception to Hearing Officer Hayman's recommendation filed by the Department. The Secretary held that the Department need not re-prove the factual basis for the Medicaid fraud charge after it had proven Dr. Veloso's criminal conviction for Medicaid fraud. Dr. Veloso's participation in the Florida Medicaid Program was terminated. Dr. Veloso appealed that termination to the Third District Court of Appeal on November 19, 1990. During the course of the appellate proceeding, the Department moved the District Court of Appeal to supplement the appellate record. The Third District remanded the matter to the Division of Administrative Hearings "for the reason stated in the [Department's] motion" (Order of District Court of Appeal dated April 8, 1991).
After consultation with the parties, on May 20, 1991, a Notice of Hearing was entered resetting this matter for further hearing on May 30, 1991. At the request of the parties, the location of the hearing was changed to Tallahassee, Florida, with counsel for Dr. Veloso appearing via telephone conference call rather than in person. During that hearing, the Department offered into evidence, with no objection from Dr. Veloso, the following:
The transcript of the proceedings in the criminal case held before the Circuit Judge on October 2, 1989. During that hearing, the state reduced the charges against Dr. Veloso from the third degree felonies of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft down to the lesser included misdemeanor of filing a false Medicaid claim.
The transcript of proceedings before the Circuit Judge on Dr. Veloso's application to set aside the plea of guilty entered on October 2, 1989.
The per curiam opinion of the Fourth District Court of Appeal which affirmed the Circuit Judge's denial of Dr. Veloso's application to withdraw his plea of guilty, but which directed the Circuit Judge to correct the judgment to reflect whether adjudication of guilt had been withheld.
The order the Circuit Judge entered pursuant to the mandate of the Fourth District Court of Appeal clarifying the judgment, stating that adjudication of guilt on the misdemeanor had not been withheld.
A copy of the original judgment of conviction on the misdemeanor charge.
A letter to Dr. Veloso from the Office of Inspector General of the United States Department of Health and Human Services notifying him that he had been excluded from participation in the Medicare program, and all state health care programs described in Section 1128(h) of the Social Security Act for a period of five years.
In the memorandum of law the Department submitted after the remand hearing, the Department included copies of a number of decisions of Administrative Law Judges of the U.S. Department of Health and Human Services which considered whether physicians convicted of Medicaid or Medicare fraud offenses were entitled to submit evidence on whether they were actually guilty of criminal conduct, or should not be excluded from federal programs for at least five years. Official recognition was taken of these decisions, as well as of the decision entered in Dr. Veloso's own case in which the ALJ disqualified him from participation in the federal Medicare program and all state Medicaid programs for five years. Veloso v. The Inspector General, Case C-260 (U.S. Department of Health and Human Services, Departmental Appeals Board, Civil Remedies Division April 4, 1991). The Department filed a proposed recommended order on June 17, 1991, and Dr. Veloso filed his proposed recommended order on June 25, 1991
Based upon the previous Recommended Order of Hearing Officer Hayman, the supplemental evidence provided on May 30, 1991, and the matters officially recognized, the following Findings of Fact are made.
FINDINGS OF FACT
At all times material, Dr. Veloso was a provider of medical services to persons who qualify for the Florida Medicaid Program. He received reimbursement from Medicaid funds for his services. The Department administers Medicaid funds in the State of Florida under Title XIX of the Social Security Act.
Dr. Veloso is a licensed Florida physician and a licensed Florida pharmacist who practices in South Florida. His patients are primarily individuals eligible for Medicaid benefits. Dr. Veloso does not necessarily maintain a regular office practice. In addition to treating patients at his offices in West Palm Beach and Miami, he sees patients at their homes, at the pharmacy, or wherever is most convenient for the patients. As a provider of services to Medicaid eligible patients, Dr. Veloso is charged with the responsibility of being familiar with the rules and statutes relating to the Florida Medicaid program.
On November 4, 1987, the Medicaid Fraud Control Unit of the office of the Auditor General received information indicating that Dr. Veloso was making a copy of Medicaid cards for patients when he filled prescriptions. Dr. Veloso was employed at a pharmacy as a part-time pharmacist. An investigation of Dr. Veloso's Medicaid billing practices then began.
The investigation revealed that Dr. Veloso was billing for office visits on Miami Medicaid residents although his practice of record was located in West Palm Beach. The investigators interviewed 16 households for whom Medicaid billings had been submitted by Dr. Veloso. The interviews resulted in the taking of sworn statements from six patients from a sample of households. Those patients denied that they had received the medical treatment for which Dr. Veloso had filed for Medicaid reimbursement. None of the six patients were present or testified at the hearing conducted by Hearing Officer Hayman on May 22, 1990. In his own testimony, Dr. Veloso countered the statements of each of the six patients. Dr. Veloso described the treatment he had given to each of the six patients, and produced the patients' medical records to verify his statements. Asked why the patients had made contradictory statements, Dr. Veloso asserted that they were quite possibly intimidated by the investigator since the patients did not have complete command of the English language, and the investigator presented herself with an official badge for identification prior to the interviews. Dr. Veloso also stated that if any mistakes had been made, they were only clerical. He explained that his wife prepared most of his billings at their home, and although he admitted that he was responsible for her actions, he represented that mistakes, if any, were inadvertently made. At the May 22, 1990, hearing, the investigator testified that it was her conclusion that Dr. Veloso did knowingly file false reimbursement claims for physician services. Although the files for the six patients were received into evidence and each corroborates that Dr. Veloso did in fact treat the patients, the actual disputed billings were not offered at the hearing on May 22, 1990 or at the remand hearing on May 30, 1991. A comparison between the treatment given to the patients as revealed on their medical records and the allegedly fraudulent billings cannot be made.
Given the demeanor of the witnesses, the evidence received at the first hearing and the lack of corroboration of the affidavits of the six patients, Hearing Officer Hayman accepted Dr. Veloso's denial of misconduct as the more credible evidence in the record before her.
Criminal proceedings containing three felony charges were filed against Dr. Veloso in Palm Beach County, Case 88-10632CF, on April 21, 1989. Dr. Veloso argued that on the advice of his attorney, he entered his guilty plea to a misdemeanor on October 2, 1989, as part of a plea agreement. That misdemeanor was knowingly filing a claim for services to a recipient of benefits under a state or federally funded assistance program for services not rendered, in violation of Section 409.325(4)(a), (5)(a), Florida Statutes (1987). During the plea hearing, the Circuit Judge specifically refused to accept that portion of the plea agreement which would have had the trial judge withhold adjudication of guilt. [transcript of hearing of October 2, 1989, page 20, line 11 - page 21, line 9] The Circuit Judge permitted Dr. Veloso time to discuss with his lawyer whether he wished to continue to enter his plea of guilty if the court was unwilling to withhold adjudication, and Dr. Veloso nonetheless agreed to enter his plea of guilty. [Hearing of October 2, 1989, page 21, lines 7-9] On the judgment and sentencing form that was entered in the criminal action, the block which is checked is the one which reads "entered a plea of guilty to the following crimes." The statute listed is Section 409.325(5)(b), Florida Statutes, a felony, but based on the transcript of the plea colloquy, the reference is clearly meant to be Section 409.325(5)(a), a misdemeanor. He was sentenced to one year of probation, to make restitution of $492 and pay $5,000 in investigative costs to the Florida Medicaid Program. Dr. Veloso ultimately filed an appeal from the judgment of guilt and sentence, maintaining that he had not intended to enter any plea which would be an admission of culpability but had merely pled guilty as a matter of convenience, on the representation of his lawyer that the plea would result in punishment similar to a misdemeanor traffic offense. The Circuit Judge specifically rejected that argument at the November 9, 1989, hearing on Dr. Veloso's application to withdraw his plea of guilty. The Circuit Judge ruled at the close of the hearing:
I am going to deny the motion. I have absolutely no doubt in my mind that the plea was freely and voluntarily given, knowingly and understandingly made and there was a factual basis for it.
And I had an opportunity to view him [Dr. Veloso] and to listen to him while we were going through the plea conference and today, the same way. He even waived his right to an interpreter here today and he spoke to me in English at the time of the hearing.
I took very careful pains to go through the plea colloquy to make sure that he fully and completely understood everything. I just don't have any doubt about that and he entered his plea in his best interests, at that time, which he certainly has a right to do and I very carefully explained to him the ramifications of that and he decided -- he wished to proceed with the plea so I am going to deny the motion to set aside the plea. [hearing of November 9, 1989, page 22, line 20 through page 23, line 15.]
The Fourth District Court of Appeal upheld the Circuit Judge's decision not to allow Dr. Veloso to withdraw his plea of guilty. Based upon all these proceedings, Dr. Veloso pled guilty to the misdemeanor of knowingly filing a false Medicare claim on October 2, 1989. Dr. Veloso understood what he was doing at the time of his plea. Both the text of the statutory charge to which he pled guilty and the requirement that Dr. Veloso make restitution and pay
$5,000 to reimburse investigative costs to the Medicaid program make clear that the offense to which Dr. Veloso pled guilty and was adjudicated guilty related to Medicaid fraud.
The judgment and sentencing form dated October 2, 1989, and as amended by the Circuit Judge on January 8, 1991, show, without doubt, that Dr. Veloso has been adjudicated guilty of the first degree misdemeanor of Medicaid fraud, a violation of Section 409.325(5)(a), Florida Statutes (1987).
Based upon the plea of guilty and criminal conviction, Dr. Veloso is subject to termination from further participation in the Medicare and Medicaid program under existing federal law.
The Inspector General gave notice to Dr. Veloso that he intended to exclude Dr. Veloso from participation in the Medicare program and all state health care programs described in Section 1128(h) of the Social Security Act for five years. Dr. Veloso pursued the procedure made available under federal law to challenge that exclusion, but the federal Administrative Law Judge ruled against him on April 4, 1991. Dr. Veloso is now exculded from the Florida Medicaid program as well as from the Medicare program for five years. Veloso v. The Inspector General, Case C-260 (U.S. Department of Health and Human Services, Departmental Appeals Board, Civil Remedies Division 1991.)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and this subject matter. Section 120.57(1), Florida Statutes (1990 Supp.).
The Department is designated under Section 409.266(1), Florida Statutes (1990 Supp.), as the state agency responsible to administer Medicaid funds under Title XIX of the Social Security Act and has the authority to impose administrative sanctions on a Medicaid provider, who is guilty of any of the acts of misconduct specified in Section 409.266(11), Florida Statutes (1987). The Department has the burden to prove by a preponderance of the evidence that Dr. Veloso is guilty of the violations it alleged.
The Department's letter to Dr. Veloso accuses him of violation of Sections 409.325(4)(a) and (5)(a), and concludes that these violations are sufficient grounds to impose administrative sanctions on him under Section 409.266(11)(g) and (h), Florida Statutes (1987). Those statutes state:
(11) The Department may impose administrative sanctions on a provider participating in the Medicaid program when:
* * *
The provider is in noncompliance with officially adopted departmental Medicaid policy manuals, the Florida Administrative Code, the Florida Statutes, or the federal rules and regulations as they pertain to the Medicaid program.
The provider fails to comply with conditions prescribed in the Medicaid provider agreement executed between the Department and the provider or contained in certifications found on claim forms signed and submitted by the provider or a duly authorized representative.
It is essential to prove a violation of Section 409.266(11)(h) that a Medicaid provider agreement was executed by Dr. Veloso and that he violated certifications found on claim forms. No provider agreement was offered into evidence. No claim forms were offered or received into evidence. The Department's evidence fails to prove any violation of Section 409.266(11)(h), Florida Statutes (1987).
The letter the Department sent to Dr. Veloso on December 5, 1989, did not allege a violation of a manual, of the rules found in the Florida Administrative Code, or of rules found in the Code of Federal Regulations. The misconduct that the Department relied upon in its letter was a violation of two statutes, Section 409.325(4)(a) and (5)(a), Florida Statutes (1987).
Section 409.325(4)(a) prohibits any person from knowingly filing a false Medicaid claim. No evidence was offered at the remand hearing by the Department to cause any change in the finding made by Hearing Officer Hayman that the weight of the evidence in the record convinced her that the false claims made by Dr. Veloso were filed inadvertently, and without the requisite knowledge. The Department continues to maintain that it is not required to offer any proof of guilt. While that may be true in a prosecution under Section 409.266(11)(a), it is not true when the allegation of misconduct is violation of Section 409.325(4)(a). On that charge the Department must bear the risk of non- persuasion and prove that the physician knowingly filed a false claim. On that charge, its proof failed.
Section 409.325(5)(a) sets criminal penalties for wrongfully applying for assistance. This is not a criminal proceeding. Section 409.325(5)(a) is not an independent basis for the imposition of administrative discipline.
The amendment to the Department's statement of claim against Dr. Veloso, made at the opening of the May 22, 1990, hearing alleged that Dr. Veloso had pled guilty to a count of Medicaid fraud, and that under Section 409.266(11)(a), Florida Statutes (1987), he is subject to administrative discipline. Under Section 409.266(11)(a):
The department may impose administrative sanctions on a provider participating in the Medicaid program when:
The provider has been convicted, regardless of adjudication, or found guilty, whether based upon a plea of guilty, not guilty, or nolo contendere, of fraud related to Medicaid or Medicare. Any sanction imposed for this reason shall be limited to termination from further participation in the Medicaid Program.
This statute is apparently patterned in a general way after Section 1128(a) of the federal Social Security Act, 42 U.S.C. Section 1320a-7(a), which requires that health care providers who submit fraudulent billings to health care programs which are federally funded or assisted be disqualified from participation in those programs after conviction for program-related crimes. The Florida statute should receive a similar construction to federal statute, insofar as the language of the Florida statute permits. O'Loughlin v. Pinchback, So.2d , 16 FLW 1279 (Fla. 1st DCA 1991).
Although the Department did not prove the violations contained in its original sanctions letter, it did prove beyond any doubt that Dr. Veloso had been convicted of Medicaid fraud based on his plea of guilty to a first degree misdemeanor in Circuit Court for Palm Beach County. He is subject to the administrative sanction of termination of participation in the Medicaid program.
Dr. Veloso has argued that he is innocent, and that he never admitted his guilt, and that this is shown by his entry of a "Alford plea" at the hearing in circuit court on October 12, 1989. By an "Alford plea" the defendant need not admit guilt, but he acknowledges that the record contains "strong evidence of actual guilt," and authorizes the court to treat him as guilty. North Carolina v. Alford, 400 U.S. 25, 37 (1970). Functionally it is a guilty plea. The Florida Rules of Criminal Procedure do not recognize an "Alford plea" as a distinct plea. See, Rule 3.170, Florida Rules of Criminal Procedure. The plea most similar to that described by Dr. Veloso is a nolo contendere plea. Dr. Veloso had the opportunity to withdraw from the plea agreement when the Circuit Judge declined to withhold adjudication of guilt, but instead chose to enter a plea of guilty. See, Finding 6.
It was not necessary for the Department to establish at the May 22, 1990, hearing, independently of the conviction and guilty plea, facts showing that Dr. Veloso is guilty of the underlying criminal charge. The statutory basis for discipline is conviction of fraud relating to Medicaid, based upon the act of pleading guilty to a criminal charge. See also, In Re Charles W. Wheeler, DAB No.1123 (Dept. of Health and Human Services, Departmental Appeals Board 1990) [interpreting a similar, though more specific, portion of the federal Social Security Act, 42 U.S.C. Section 1230a-7(i)]
Unlike Hearing Officer Hayman, I cannot regard the Department's choice of penalty as a wholly discretionary act. If the physician had pled nolo contendere, the decision of the First District Court of Appeal interpreting Florida law in Ayala v. Department of Professional Regulation, Board of Medicine, 478 So.2d 1116 (Fla. 1st DCA 1985) might allow the physician to shoulder the burden of proving that he was not guilty of the underlying criminal charge. What distinguishes this case from Ayala is that Dr. Veloso did not plead nolo contendere. He pled guilty. Had Dr. Veloso pled nolo contendere, and convinced the Hearing Officer that he had not actually committed any criminal acts, the Department might exercise the discretion apparently available to it under Section 409.266(11)(a) and impose no sanction on him.1 Where a physician has pled guilty, he cannot rely on the Ayala decision to make the illogical argument that he is not actually guilty of the predicate crime to which he pled guilty. It was not necessary for the Department to offer additional proof that Dr. Veloso was actually guilty of the underlying substantive crime or to bear the risk of non-persuasion on that issue at the final hearing conducted on May 22, 1990. Hearing Officer Hayman's conclusion that actions of Dr. Veloso were the result of inadvertence is irrelevant to the charge under Section 409.266(11)(a). The offence is established by proof of the guilty plea and criminal conviction. In this situation a penalty should be imposed, and under Section 409.266(11)(a), Florida Statutes, the only penalty available to the Department is to terminate the physician from further participation in the Medicaid program. This is consonant with the decision of the Federal Administrative Law Judge in Dr. Veloso's case, which independently has the effect of disqualifying him from participation in all state Medicaid programs (those of Florida and of all other states) for five years. Such disqualification is required by 42 U.S.C. Section 1320a-7(a)(1) and (d)(3)(A).
There is no reason to stay the final order of termination as a Medicaid provider pending the outcome of Dr. Veloso's appeal. Section 120.68(3), Florida Statutes. The exclusion from participation in Medicare has been upheld by a federal Administrative Law Judge. Dr. Veloso has been convicted of the predicate offense of Medicaid fraud in a criminal proceeding which he unsuccessfully appealed. There is no reason for the Secretary of Department of Health and Rehabilitative Services to ask the Secretary of the Department of Health and Human Services to waive the period of exclusion under
42 U.S. C. Section 1320a-7(d)(3)(B)(i). Congress intended to minimize the risk of misapplication of funds by promptly striking from the rolls of eligible providers those convicted of program-related crimes and Dr. Veloso has been convicted.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services issue
a Final Order dismissing Counts I and II found in the letter dated December 5,
1989, but that Dr. Veloso be found guilty of violation of Section 409.266(11)(a), Florida Statutes (1987), by having been convicted, after having pled guilty, to a crime of Medicaid fraud. Based upon that finding, his right to participate in the Florida Medicaid Program should be terminated for a period of five years.
DONE and ENTERED this 25th day of June, 1991, at Tallahassee, Florida.
WILLIAM R. DORSEY, JR.
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 25th day of June, 1991.
APPENDIX TO RECOMMENDED ORDER ON REMAND
All findings proposed by the Department have been accepted, except findings 10 and 12, which were not proven.
All findings proposed by Dr. Veloso were accepted.
COPIES FURNISHED:
Karel Baarslag, Esquire Department of Health and
Rehabilitative Services 1317 Winewood Boulevard
Tallahassee, Florida 32399-0700
Andrea Newman, Esquire Michael P. Weisberg, Esquire 1840 Coral Way
4th Floor
Miami, Florida 33145
Sam Power, Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
John Slye, General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES
RAYMOND VELOSO,
Petitioner,
CASE NO.: 90-1109
vs.
DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,
Respondent.
/
FINAL ORDER
This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings
(DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.
RULING ON EXCEPTIONS FILED BY THE DEPARTMENT
Counsel excepts to the Hearing Officer's recommendation that petitioner not be terminated as a Medicaid provider despite his plea of guilty to Medicaid fraud in criminal court. The Hearing Officer does not state any basis for her recommendation, but apparently gave weight to petitioner's assertions of innocence in this tribunal. It is noted that Section 409.266(11) (a), Florida Statutes (1989) does not require the department to establish a factual basis in addition to a criminal conviction for Medicaid fraud, only proof of the conviction is required.
It should be noted that a physician's participation in the Medicaid program is a privilege, not a right. Medicaid fraud is a grave abuse of that privilege. Public confidence in the integrity of Medicaid is important. I conclude that termination is appropriate in this case.
FINDINGS OF FACT
The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except where inconsistent with the ruling on the exceptions.
CONCLUSIONS OF LAW
The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on the exceptions.
Based upon the foregoing, it is
ADJUDGED, that petitioner, Raymond Veloso, be terminated from participation in Medicaid.
DONE and ORDERED this 15th day of October , 1990, in Tallahassee, Florida.
Gregory L. Coler Secretary
Department of Health and Rehabilitative Services
by Deputy Secretary for Programs
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE
AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED
Copies furnished to:
Andrea Newman, Esquire Jane C. Hayman Michael P. Weisberg, Esquire Hearing Officer
Fourth Floor, 1840 Coral Way DOAH, The DeSoto Building Miami, FL 33145 1230 Apalachee Parkway
Tallahassee, FL 32399-1550
Carl Bruce Morstadt, Esquire
Chief Medicaid Counsel Gary Clarke (PDDM) Department of Health and Deputy Assistant Secretary
Rehabilitative Services for Medicaid
1317 Winewood Boulevard 1317 Winewood Boulevard
Building 6, Room 230 Building 6, Room 220
Tallahassee, FL 32399-0700 Tallahassee, FL 32399-0700
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named
people by U.S. Mail this 19
day of Oct
1990.
R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700 904/488-2381
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 15, 1990 | Agency Final Order | |
| Jun. 28, 1990 | Recommended Order | Physician who pled guilty to medicaid fraud after circuit judge had refused to withhold adjudication subject to mandatory revocation as a medicaid provider |
DAVID'S PHARMACY vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 90-001109 (1990)
IV CONCEPTS, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 90-001109 (1990)
AGENCY FOR HEALTH CARE ADMINISTRATION vs RODOLFO DUMENIGO, M.D., 90-001109 (1990)
COMPSCRIPT, INC., D/B/A COMPSCRIPT vs AGENCY FOR HEALTH CARE ADMINISTRATION, 90-001109 (1990)
H. J. DENTAL, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 90-001109 (1990)
