STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5481

) ROLAND RAYMOND VELOSO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on January 31, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Richard Grumberg, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Andrea Newman, Esquire

Law Office of Michael P. Weisberg

1840 Coral Way, 4th Floor Miami, Florida 33145

STATEMENT OF THE ISSUES

The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.

PRELIMINARY STATEMENT

The hearing proceeded on the allegations of the amended administrative complaint. No party requested filing of the transcript in this matter. A proposed recommended order was filed by Dr. Veloso on February 25, 1991.

Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 2l, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a

   special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4) (a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea.

   
   

2. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989.

   
   

3. At the time Dr. Veloso entered his guilty plea, he was represented by counsel.

   
   

4. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist.

   
   

5. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy.

   
   

6. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure.

   
   

7. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way:

   
   

   A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400

   U.S. 25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c) the existence of a record, at the time of the plea which contains overwhelming evidence against the accused.

8. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1989).

   
   

10. Section 458.33l(1)(c), Florida Statutes (1985), subjects a licensed physician to discipline upon

    
    

    being convicted or found guilty regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    
    

11. The plea of guilty which Dr. Veloso entered makes out the offense charged. Nothing in the statute indicates that special consideration is to be given to an "Alford" plea, treating it as somehow less opprobrious than any other guilty plea. It is not significant that Dr. Veloso did not understand the collateral consequences of his plea. As Elkan Abramowitz wrote in a recent issue of Litigation:

    
    

    A physician, attorney, or professional who depends on a license to practice should expect and prepare for revocation proceedings after a guilty plea. Often the revocation is virtually automatic.

    
    

    Abramowitz, The Hidden Penalties of Conviction, 17 Litigation 34, 35 (Fall 1990).

    
    

12. The decision of the First District Court of Appeal in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985) requires that a medical doctor who has pled nolo contendere to a criminal charge be given the opportunity to rebut the presumption of guilt which arises from a nolo contendere plea, and that the board must consider the physician's evidence in deciding whether or not the physician is guilty of any violation of Section 458.331(1)(c); that explanation also must be considered in mitigation of any punishment. The Ayala decision does not appear to grant a licensee the opportunity to dispute whether he is guilty of a statutory violation when he has pled guilty to the underlying criminal charge, especially where the guilty plea is entered because the record "contains overwhelming evidence against the accused" (Dr. Veloso's proposed order, at page 2)

    
    

13. Even if a physician is entitled to try to convince a Hearing Officer that he is not guilty of the criminal charges to which he has made an "Alford" plea of guilty, Dr. Veloso's testimony in this case is not persuasive that he actually performed the services for which he billed Medicaid. If any of the patients supposedly treated had testified that they had been treated, Dr. Veloso's denials would have been more credible. The complete absence of all six patients from the final hearing leads the Hearing Officer to doubt his protestations of innocence. Especially unpersuasive is Dr. Veloso's testimony

    that his bookkeeping may be poor, blaming the insufficiency of his records on bookkeeping deficiencies of his wife. Dr. Veloso, not his wife, is the person required to maintain adequate records of his treatment to justify Medicaid billings.

    
    

14. The penalty guidelines of the Board of Medicine prescribe a penalty ranging from probation to revocation or denial of license and an administrative fine ranging from $250 to $5,000 for a violation of Section 458.33l(1)(c), Florida Statutes. See, Rule 21M-20.001(2)(c), Florida Administrative Code. In determining what penalty to recommend, it is appropriate to refer to the aggravating and mitigating circumstances described by the board in Rule 21M- 20.001(3)(a)- (g), Florida Administrative Code. There is no indication that Dr. Veloso exposed any patient to an injury; indeed, the gravamen of the charge against him is that he provided no services and therefore no patient could suffer injury from his care, Rule 21M- 20.001(3) (a). Dr. Veloso was under no constraints with respect to his practice at the time of the offense, Rule 21M- 20.001(3)(b), Florida Administrative Code. It is difficult to determine the number of counts or separate offenses "established" as that term is used in Rule 21M-20.001(3)(c), Florida Administrative Code. There was no trial. Dr. Veloso pled guilty to a lesser included offense, and for purposes of assessing a penalty, it is appropriate to regard the offense as a single offense, and not as six offenses. The State may not have been able to prove wrongdoing as to each of the six people named in Count I, the only count to which Dr. Veloso pled guilty. There is no proof that Dr. Veloso had previously been guilty of Medicaid fraud, Rule 21M-20.001(3)(d), nor is there any evidence that since he was first licensed in 1975, Dr. Veloso had been guilty of any other misconduct in Florida, or anywhere else. Rule 21M-20.001(3)(e), Florida Administrative Code. The pecuniary benefit to Dr. Veloso appears to have been trivial, as he was required to reimburse Medicaid only $472. While Medicaid fraud is not to be condoned, Dr. Veloso obtained less than $500 from his inappropriate billing. Rule 21M-20.001(3)(f), Florida Administrative Code.

    
    

15. With respect to any other mitigating factors, Dr. Veloso's evidence is not convincing that he is wholly innocent of any wrongdoing. Dr. Veloso purposefully has practiced in poor sections of Dade County and in the black community as a means of repaying the black community for the benefit conferred upon him when he was able to take instruction at the pharmacy school at Florida A & M University, to obtain his licensure as a pharmacist in Florida after he came to the United States from Cuba.

    
    

16. In attempting to weigh the aggravating and mitigating factors, it does not appear necessary to revoke Dr. Veloso's license, and deprive the minority community of the services of Dr. Veloso for fraudulent billings which amount to less than $500. Dr. Veloso has already repaid the State the amount improperly billed, plus $5,000 as the cost of the Medicaid fraud investigation; this weighs in his favor. Some period of suspension of licensure should be imposed, given the seriousness of fraudulent Medicaid billing. Dr. Veloso has engaged in no other misconduct over his approximately 15 years of licensure in Florida, so the period of suspension need not be a lengthy one. It is appropriate that the license of Dr. Veloso to practice medicine be suspended for a period of six months, that he pay a fine equivalent to approximately three times the amount he billed inappropriately as shown by the Order of Restitution entered by the circuit court. Rounding that amount up to $500, the fine should be $1,500.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section

458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be suspended for a period of six months, and that he be fined $1,500.

DONE and ENTERED this 26th day of February, 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 26th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5481

Rulings on findings proposed by the Respondent:

Findings 1 and 2 have been accepted.

Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact.

COPIES FURNISHED:

Richard Grumberg, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Andrea Newman, Esquire

Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor

Miami, FL 33145

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-5481

) ROLAND RAYMOND VELOSO, M. D., )

)

Respondent. )

)

CORRECTED RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, on January 31, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Richard Grumberg, Esquire

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

For Respondent: Andrea Newman, Esquire

Law Office of

Michael P. Weisberg 1840 Coral Way, 4th Floor Miami, FL 33145

STATEMENT OF THE ISSUE

The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.

PRELIMINARY STATEMENT

The hearing proceeded on the allegations of the amended administrative complaint. A transcript of the proceeding was filed on February 19, 1991. A proposed recommended order was filed by Dr. Veloso on February 25, 1991.

Rulings on proposed findings of fact are made in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 21, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4)(a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea.

   
   

2. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989.

   
   

3. At the time Dr. Veloso entered his guilty plea, he was represented by counsel.

   
   

4. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist.

   
   

5. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy.

   
   

6. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure.

   
   

7. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of

   guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way:

   
   

   A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400 U.S.

   25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c)

   the existence of a record, at the time of the plea which contains overwhelming evidence against the accused.

   
   

8. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes (1989).

   
   

10. Section 458.331(1)(c), Florida Statutes (1985), subjects a licensed physician to discipline upon

    
    

    being convicted or found guilty regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.

    
    

11. The plea of guilty which Dr. Veloso entered makes out the offense charged. Nothing in the statute indicates that special consideration is to be given to an "Alford" plea, treating it as somehow less opprobrious than any other guilty plea. It is not significant that Dr. Veloso did not understand the collateral consequences of his plea. As Elkan Abramowitz wrote in a recent issue of Litigation:

    
    

    A physician, attorney, or professional who depends on a license to practice should expect and prepare for revocation proceedings after a guilty plea. Often the revocation is virtually automatic.

    
    

    Abramowitz, The Hidden Penalties of Conviction, 17 Litigation 34, 35 (Fall 1990).

    
    

12. The decision of the First District Court of Appeal in Ayala v. Department of Professional Regulation, 478 So.2d 1116 (Fla. 1st DCA 1985) requires that a medical doctor who has pled nolo contendere to a criminal charge be given the opportunity to rebut the presumption of guilt which arises from a nolo contendere plea, and that the board must consider the physician's evidence in deciding whether or not the physician is guilty of any violation of Section 458.331(1)(c); that explanation also must be considered in mitigation of any

    punishment. The Ayala decision does not appear to grant a licensee the opportunity to dispute whether he is guilty of a statutory violation when he has pled guilty to the underlying criminal charge, especially where the guilty plea is entered because the record "contains overwhelming evidence against the accused" (Dr. Veloso's proposed order, at page 2).

    
    

13. Even if a physician is entitled to try to convince a Hearing Officer that he is not guilty of the criminal charges to which he has made an "Alford" plea of guilty, Dr. Veloso's testimony in this case is not persuasive that he actually performed the services for which he billed Medicaid. If any of the patients supposedly treated had testified that they had been treated, Dr. Veloso's denials would have been more credible. The complete absence of all six patients from the final hearing leads the Hearing Officer to doubt his protestations of innocence. Especially unpersuasive is Dr. Veloso's testimony that his bookkeeping may be poor, blaming the insufficiency of his records on bookkeeping deficiencies of his wife. Dr. Veloso, not his wife, is the person required to maintain adequate records of his treatment to justify Medicaid billings.

    
    

14. The penalty guidelines of the Board of Medicine prescribe a penalty ranging from probation to revocation or denial of license and an administrative fine ranging from $250 to $5,000 for a violation of Section 458.331(1)(c), Florida Statutes. See, Rule 21M-20.001(2)(c), Florida Administrative Code. In determining what penalty to recommend, it is appropriate to refer to the aggravating and mitigating circumstances described by the board in Rule 21M- 20.001(3)(a)-(g), Florida Administrative Code. There is no indication that Dr. Veloso exposed any patient to an injury; indeed, the gravamen of the charge against him is that he provided no services and therefore no patient could suffer injury from his care, Rule 21M-20.001(3)(a). Dr. Veloso was under no constraints with respect to his practice at the time of the offense, Rule 21M- 20.001(3)(b), Florida Administrative Code. It is difficult to determine the number of counts or separate offenses "established" as that term is used in Rule 21M-20.001(3)(c), Florida Administrative Code. There was no trial. Dr. Veloso pled guilty to a lesser included offense, and for purposes of assessing a penalty, it is appropriate to regard the offense as a single offense, and not as six offenses. The State may not have been able to prove wrongdoing as to each of the six people named in Count I, the only count to which Dr. Veloso pled guilty. There is no proof that Dr. Veloso had previously been guilty of Medicaid fraud, Rule 21M-20.001(3)(d), nor is there any evidence that since he was first licensed in 1975, Dr. Veloso had been guilty of any other misconduct in Florida, or anywhere else. Rule 21M-20.001(3)(e), Florida Administrative Code. The pecuniary benefit to Dr. Veloso appears to have been trivial, as he was required to reimburse Medicaid only $472. While Medicaid fraud is not to be condoned, Dr. Veloso obtained less than $500 from his inappropriate billing. Rule 21M-20.001(3)(f), Florida Administrative Code.

    
    

15. With respect to any other mitigating factors, Dr. Veloso's evidence is not convincing that he is wholly innocent of any wrongdoing. Dr. Veloso purposefully has practiced in poor sections of Dade County and in the black community as a means of repaying the black community for the benefit conferred upon him when he was able to take instruction at the pharmacy school at Florida A & M University, to obtain his licensure as a pharmacist in Florida after he came to the United States from Cuba.

16. In attempting to weigh the aggravating and mitigating factors, it does not appear necessary to revoke Dr. Veloso's license, and deprive the minority community of the services of Dr. Veloso for fraudulent billings which amount to less than $500. Dr. Veloso has already repaid the State the amount improperly billed, plus $5,000 as the cost of the Medicaid fraud investigation; this weighs in his favor. Some period of suspension of licensure should be imposed, given the seriousness of fraudulent Medicaid billing. Dr. Veloso has engaged in no other misconduct over his approximately 15 years of licensure in Florida, so the period of suspension need not be a lengthy one. It is appropriate that the license of Dr. Veloso to practice medicine be suspended for a period of six months, that he pay a fine equivalent to approximately three times the amount he billed inappropriately as shown by the Order of Restitution entered by the circuit court. Rounding that amount up to $500, the fine should be $1,500.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section

458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be

suspended for a period of six months, and that he be fined $1,500.

DONE and ENTERED this 26th day of February, 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 26th day of February, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5481

Rulings on findings proposed by the Respondent:

Findings 1 and 2 have been accepted. Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact.

COPIES FURNISHED:

Richard Grumberg, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Andrea Newman, Esquire

Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor

Miami, FL 33145

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 90-005481

Orders for Case No: 90-005481