STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) Case No. 00-1933

)

OTTO A. VILLAMIZAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 7, 2002, in Miami, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Reginald D. Dixon, Esquire

Department of Health

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

For Respondent: Lawrence R. Metsch, Esquire

Metsch & Metsch, P.A.

1455 Northwest 14th Street Miami, Florida 33125

STATEMENT OF THE ISSUE

Whether Respondent committed the offense set forth in the Amended Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On December 6, 1999, the Department of Health, Board of Nursing (Board) filed an Amended Administrative Complaint against Otto A. Villamizar (Villamizar). The Board charged Villamizar with violating Subsection 464.018(1)(c), Florida Statutes, by being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

Villamizar disputed the allegations of fact in the Amended Administrative Complaint and requested a hearing. This matter was referred to the Division of Administrative Hearings (DOAH) on May 8, 2000. By Order dated May 11, 2000, DOAH's file was closed based upon the parties' entering into a stipulation, subject to approval by the Board, resolving all issues in dispute. By Order dated January 19, 2001, DOAH's file was re-opened upon the granting of a motion requesting DOAH to reinstate jurisdiction based upon the stipulation not being approved. Subsequently, the parties entered into another stipulation, and by Order dated

May 10, 2001, DOAH's file was once again closed. However, the second stipulation was not approved by the Board, and by Order dated February 14, 2002, DOAH's file was again re-opened upon the granting of a motion requesting DOAH to reinstate jurisdiction.

At the hearing, the Board did not call any witnesses and Villamizar testified in his own behalf. The parties entered 14 joint exhibits (Joint Exhibits numbered 1-14) into evidence.

A transcript of the hearing was ordered. At the parties' request, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript, i.e., within 20 days following the filing of the transcript. The Transcript, consisting of one volume, was filed on June 5, 2002. The parties' post-hearing submissions were due on or before

June 25, 2002. The Board timely filed its post-hearing submission. Villamizar filed his post-hearing submission, but failed to timely file it. The Board objected, moving that the undersign strike Villamizar's post-hearing submission. By Order dated August 22, 2002, the undersigned denied the Board's motion to strike but provided the Board an opportunity to respond to the legal issues raised by Villamizar. Villamizar's post-hearing submission was considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Villamizar received his nursing degree in May 1990.

   
   

2. At all times material hereto, Villamizar was licensed by the Board as a registered nurse, having been issued license number RN 2165962.

3. On or about April 8, 1998, Villamizar entered into a written plea agreement with the United States Department of Justice for the Southern District of Florida (DOJ). Villamizar agreed, among other things, to the following:

   1. That he would plead guilty to an indictment or information charging that from on or about January 1, 1991, to on or about August 31, 1994, he conspired with others to defraud the United States by obtaining and aiding to obtain the payment and allowance of false, fictitious and fraudulent Medicare claims, in violation of Title 18 U.S.C. Section 286.

      
      

   2. That his offense conduct involved more than minimal planning.

      
      

   3. That he used a special skill in a manner that significantly facilitated the commission of the offense conduct.

      
      

   4. That he would cooperate with the Department of Justice's investigation into the collapse of the St. John's Home Health Agency, Inc., a Medicare provider (No. 10- 7131) and the holder of a Certificate of Need issued by the State of Florida.

      
      

   5. That the court may impose the statutory maximum term of imprisonment of ten (10) years, followed by a term of supervised release, and a fine of $250,000.00 or twice the gross loss resulting from the offense, or twice the gross gain derived from the offense, whichever is greater.

      
      

4. On or about December 17, 1998, a criminal indictment was filed and issued by the Federal Grand Jury against Villamizar and others in the case of United States of America v. Elsa Hernandez, et al., Case No. 98-0963-CR-Moreno in the United States District

   Court for the Southern District of Florida. The indictment alleged, among other things, that Villamizar and the other defendants from on or about January 1, 1991, to on or about December 31, 1994, did knowingly and willfully combine, conspire, confederate and agree with persons known and unknown to the Grand Jury to defraud the United States by obtaining and aiding to obtain the payment and allowance of false, fictitious and fraudulent Medicare claims for home health services exceeding

   $42,000,000.00, all in violation of Title 18 U.S.C. Section 286.

   
   

5. Villamizar surrendered to federal authorities on December 23, 1998, and was released that same day on a $50,000.00 personal surety bond.

6. St. Johns Home Health Agency, Inc. (St. Johns) was a not-for-profit Florida corporation, engaging in the business of providing home health services to Medicare beneficiaries.

   St. Johns had offices in Dade, Broward, and Hernando counties. St. Johns employed nurses and other home health care professionals, who provided home health services to home health patients receiving Medicare benefits.

7. St. Johns billed Medicare for home health services, including home health care visits, provided to the Medicare patients.

8. During the time period indicated in the federal indictment, Villamizar was employed by St. Johns.

9. At some point during the time period indicated in the federal indictment, Villamizar and a couple of other nurses were approached by St. Johns' Director of Nursing and requested to sign supervisory nursing notes, which indicated that supervisory visits were made to the patients' homes. However, no supervisory visits had been made. Villamizar agreed and signed supervisory nursing notes.

10. Villamizar was not paid for signing the supervisory nursing notes. Villamizar agreed to sign and signed the supervisory notes because he expected the Director of Nursing to assist him with his job at St. Johns.

11. Villamizar also signed blank nursing visit notes even though he was not making the visits to the patients' homes. Some of the blank nursing visit notes contained the patients' name and some did not. Villamizar was paid for making the non-existent visits.

12. Villamizar was aware that St. Johns was billing Medicare for the non-existent supervisory visits and non-existent nursing visits.

13. Villamizar was aware that his conduct was wrong, but he did not fully understand the implications or consequences of his conduct. Furthermore, if the federal government had not contacted Villamizar, he would not have contacted it regarding the illegal activity.

14. On January 12, 1999, Villamizar pled guilty to one count (Count Three) of the indictment, i.e., conspiracy to submit false Medicare claims to the United States. The amount of false claims attributed to Villamizar's conduct was over $300,000.00

15. On March 23, 1999, the district court judge sentenced Villamizar to 18 months imprisonment, with a reporting date of January 10, 2000; two years of supervised release; restitution in the amount of $50,000.00; and a $50.00 assessment.

16. Citing his substantial assistance to the United States Government in the investigation of St. Johns, on December 29, 1999, the DOJ moved the District Court for the reduction of Villamizar's sentence. The motion was granted on January 7, 2000, and Villamizar's sentence was reduced from the 18-month prison term to five years probation, requiring Villamizar, during the first year, to participate in the Home Detention Electronic Monitoring Program.

17. Complying with a Board requirement, Villamizar's counsel forwarded to the Board a copy of the March 23, 1999, federal judgment against Villamizar in Case No. 98-0973. Subsequently, the Board initiated this matter against Villamizar to revoke his license.

18. The federal crime to which Villamizar pled directly relates to the practice of nursing. The parties agree that the crime committed by Villamizar is serious.

19. At no time, since the Board's notification of the federal judgment against Villamizar, has the Board taken emergency action to suspend the license of Villamizar.

20. As a result of his conviction, Villamizar is excluded from participating as a provider to federally financed public health programs for seven years.

21. Villamizar is presently employed as a case manager. He has no personal contact with patients.

22. Villamizar has a wife and child. He supports them from his employment as a registered nurse.

23. Villamizar has performed his obligations under the plea agreement. He is complying with the conditions of probation imposed upon him, including making payments toward restitution. Villamizar has offered to place his home for sale and to devote the proceeds of the sale to the satisfaction of the judgment against him.

24. No previous disciplinary action has been taken against Villamizar.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

26. License revocation proceedings are penal in nature.

    
    

    The burden of proof is on the Petitioner to establish by clear and convincing evidence the truthfulness of the allegations in the Administrative Complaints and Amended Administrative Complaints. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292

    (Fla. 1987).

    
    

27. Section 464.018(1), Florida Statutes, provides acts which constitute grounds for disciplinary action and provides in pertinent part:

    (c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of nursing or to the ability to practice nursing.

    
    

    * * *

    
    

    (f) Making or filing a false report or record, which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the nurse's capacity as a licensed nurse.

    
    

28. The Board charged Villamizar with violating Subsection 464.018(1)(c), Florida Statutes. Villamizar argues that, instead, the Board should have also charged him with violating

    Subsection 464.018(1)(f), Florida Statutes, but did not. Additionally, Villamizar argues that Subsection 468.018(1)(f) is the specific statute covering a particular area, whereas, Subsection 468.018(1)(c) is the general statute covering the same area in more general terms. Furthermore, Villamizar argues that case law supports the proposition that a specific statute controls over the general statute, citing McKendry v. State, 641 So. 2d 45 (Fla. 1994).

29. Villamizar is correct that the Board chose to charge him with a violation of Subsection 464.018(1)(c), Florida Statutes, instead of Subsection 464.018(1)(f), Florida Statutes; and that, if the undersigned determines that the Board failed to prove the allegations of the Amended Administrative Complaint, the undersigned should recommend that the Amended Administrative Complaint be dismissed. The Board presented clear and convincing evidence to establish a violation of Subsection 464.018(1)(f), Florida Statutes; however, the undersigned is not persuaded by Villamizar's argument that Subsection 464.018(f), Florida Statutes is the specific statute and that 464.018(1)(c), Florida Statutes is the general statute. Therefore, the undersigned is not persuaded that Subsection 464.018(1)(f), Florida Statutes, controls over Subsection 464.018(1)(c), Florida Statutes.

30. The Board demonstrated by clear and convincing evidence that Villamizar violated Subsection 464.018(1)(c), Florida

    Statutes. At the time of the violation committed by Villamizar, he was a licensed registered nurse. Villamizar continues to hold his license. He pled guilty to and was convicted of a federal crime directly relating to the practice of nursing.

31. As to penalty, the parties agree that Rule 64B9- 8.006(3)(f), Florida Administrative Code, is applicable, which provides in pertinent part:

    (f) Criminal conviction relating to practice or ability to practice nursing (464.018(1)(c), F.S.). . . From fine of $500, referral to IPN, two years suspension and probation for the duration of court ordered probation to revocation and $1000 fine.

    
    

    Further, the parties agree that Rule 64B9-8.006(4), Florida Administrative Code, provides that the Board may deviate from the penalty provided in Rule 64B9-8.006(3)(f), Florida Administrative Code, if aggravating or mitigating factors are presented at the hearing. The said Rule provides the circumstances which may be considered for the purposes of aggravation or mitigation, including a danger to the public.

32. The Board argues that the aggravating factor of a danger to the public is applicable in the instant matter. The undersigned is not persuaded that Villamizar is a danger to the public; and, even assuming that he is a danger to the public, such danger is minimal. Villamizar no longer has personal contact with patients. Also, no allegation was made in the

Amended Administrative Complaint and no evidence was presented that Villamizar should not provide direct nursing services to patients. Furthermore, he is excluded from participating as a provider to federally financed public health programs for seven years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Health, Board of Nursing enter a final order:

1. Finding that Otto A. Villamizar violated Subsection 464.018(1)(c), Florida Statutes.

2. Issuing a reprimand against Villamizar's license.

   
   

3. Suspending Villamizar's license for two years with the suspension being stayed during the time of his court ordered probation.

4. Placing Villamizar on probation under terms and conditions deemed appropriate.

5. Imposing a $1,000.00 administrative fine.

   
   

6. Assessing costs for the investigation of this matter.

DONE AND ENTERED this 5th day of November, 2002, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2002.

COPIES FURNISHED:

Reginald D. Dixon, Esquire Department of Health

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

Lawrence R. Metsch, Esquire Metsch & Metsch, P.A.

1455 Northwest 14th Street Miami, Florida 33125

Dan Coble, Ph.D. R.N. CNAA C, BC

Executive Director Board of Nursing

4050 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252

William W. Large, General Counsel Department of Health

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

R. S. Power, Agency Clerk Department of Health

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-001933

Orders for Case No: 00-001933