_MAR-2s-2008 FRI 09:25 AN Shutts aad Bowen FAR NO, 3053819982 P, 06 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION AGENCY FOR HEALTH CARE ADMINISTRATION, AFICA Case Numbers Petitioner, 2005001930 and 2005002166 VS. THIRTY SIX MEDICAL CENTER Nr i CORPORATION, a Florida corporation, Od a | (6 5 d/b/a THIRTY SIX MEDICAL CENTER, Respondent. ADMINISTRATIVE COMPLAINT The AGENCY FOR HEALTH CARE ADMINISTRATION (hereinafter AHCA or the Agency], by and through its undersigned counsel, and in consultation with opposing counsel, hereby files and serves this its ADMINISTRATIVE COMPLAINT against THIRTY SIX MEDICAL CENTER CORPORATION, a Florida corporation, d/b/a THIRTY SIX MEDICAL CENTER [Respondent], pursuant to Sections 120.569 and 120.57, Florida Statutes, and alleges: NATURE OF THE ACTIONS 1, This Administrative Complaint [AC] consolidates and pleads two AHCA cases in this one multi-count pleading, by agreement of the parties. 4AR-25-2005 FEL 9:25 AM Shutts and Bowen FAK HO. 305381 3982 7 P, 87 . The consolidated cases are AHCA Case Number 2005001930 and AHCA Case Number 2005002166. This AC supercedes and replaces the original Notice of Intent to Revoke License, etc., dated January 26, 2005, served upon Respondent under the first case number, 10 which Respondent timely responded by Petition requesting a formal administrative hearing. The second case arose separately. The parties contemplate Respondent’s similar Petition for formal administrative hearing as to the consolidated cases. 2. By and through this administrative action, AHCA seeks: a. to revoke Respondent’s standard license (Count I) for Respondent’s actions and conduct, including false representation to the Agency of a material fact, which involves an act of forgery of a medical doctor’s signature; b. to impose administrative fines upon Respondent totaling $10,000 (counts II and IIT), or $5,000 each for violation of two specified provisions of the Act as alleged herein; and c. to assess a complaint investigation fee against Respondent pursuant to §400.9915(4), Florida Statutes (2004). _ TAr-25-2008 FRE 03:23 AM Shutts and Bower FA NO, 3053819982 JURISDICTION & VENUE 3. AHCA has jurisdiction in these cascs pursuant to its regulatory authority under the Health Care Clinic Act [Act], Chapter 400, Part XI, Florida Statutes (2004). The Division of Administrative Hearings [DOAH] will have jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes, upon the occurrence of the anticipated events (a) that Respondent will request a formal hearing in the consolidated AHCA cases, and (b) that AHCA thereafter will refer the consolidated AHCA cases to DOAH. 4. Venue shall be determined pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 5. AHCA is the regulatory agency responsible for the licensure of Florida health care clinics and for the enforcement of the Act, governing Florida’s non-exempt health care clinics. 6. THIRTY SIX MEDICAL CENTER CORPORATION, a Florida corporation [also sometimes referenced hereinafter as the corporate licensee], owns, operates and is doing business as THIRTY SIX MEDICAL CENTER [hereinafter the Clinic] under AHCA License # HCC 5991. The Clinic is a health care clinic as defined by the Act and is located at 4471 NW _MeP-25-2005 FRI 09:26 AN Shutts and Bower FAX HO, 3053819982 36thth Street, Suite 240, Miami Springs, Florida 33166, At all times material hereto Respondent was required to comply with the Act. COUNTI Revocation of License for False Representation of Material Fact and Other Violations of the Health Care Clinic Act 7. AHCA re-alleges and incorporates by reference paragraphs one (1) through six (6) above as if fully set forth herein. 8. On or about June 28, 2004, Respondent submitted its application for licensure to operate the Clinic at the address referenced above. Based upon the representations and information furnished by Respondent, in due course, on or about September 9, 2004, the Agency issued standard AHCA License # HCC 5991 to Respondent for operation of the Clinic. 9. §400.99i(5), Florida Statutes, requires that an application for licensure include, among other things, “the name, residence and business address, phone number, social security number, and license number of the medical or clinical director. . . . ” Respondent named a medical doctor (known to Respondent and hereinafier referenced as Dr. R) as its medical director. Respondent provided all required information to the Agency pertaining to Dr. R. This included information necessary to perforin the required background screening of Dr. R for any criminal reco:d that would preclude the issuance of a clinic license to Respondent. 09° MAR-25-2005 FRI 09:26 AM Shutts and Bowen FAK HO, 3053819982 10. On or about November 10, 2004, by letter of that date, the Agency notified Respondent that the Agency's Background Screening Unit had received information trom law enforcement agencies that called into question whether Dr. R could be cleared as meeting background screening (BGS) requirements. The Agency advised the Clinic that it required further information in order for the Agency to make a “final determination” as to Dr. R’s status, to wit: whether he was duly-qualified to serve as the Clinic’s medical director. The Agency thereafter received no additional information ‘om Respondent, including to the date of the filing of this AC, about Dr. R that would enable the Agency to clear Dr. R as meeting BGS requirements. Ll. Instead, by and through a completed Agency licensure applica- tion form dated November 26, 2004, which form the Agency received on or about December 8, 2004, Respondent sought to “add” one Michael Formisano, a licensed Florida medical doctor, as its medical director. This application included not only the apparent signature of Dr. Formisano as accepting his appointment as the medical director of the Clinic on 11/26/04, but also other required documentation in the form of a copy, not the original, ofa fingerprint card for Dr. Formisano, of a photocopy of his signed Department of Health license, of a copy of his social security card and of a copy of his Florida driver’s license. Oo —_MAR-26-2005 FRI 09:26 Al Sautts ard Bowen FAK NO. 3053819982 12. The form used by Respondent in its application of 11-26-04 complies with §400.991(4), Florida Statutes (2004), in providing that the statement as to the truth of the information furnished in the application be notarized. One Babette Sosa signed the application under oath as president of the corporate licensee, with her statement being notarized. 13. In due course the Agency received, approved and duly noted in its records the change in the Clinic’s medical director lo Dr. Formisano. The Agency relied on such information as rendering moot any need for immediate action by the Agency pertaining to the unresolved background screening situation and related question as to whether Dr. R was qualified to serve as the Clinie’s medical director under the Act (and correspondingly, whether the Clinic was operating and had been operating prior to 11-26-04 without a qualified medical director). That is, the Agency accepted Dr. Formisano as “the” qualified medical director of the Clinic as of the 11/26/03 date provided to the Agency as the date of his ostensible acceptance of that role. 14. By letter dated December 23, 2004, the Agency formally advised both the Clinic and Dr. Formisano of such receipt, approval and change of the Clinic’s medical director. MBP -25-2005 FRE 99:26 AM Sautts ard Bowen FaX NO. 3053819982 15. Under the Act, a clinic’s medical director is the person “who is employed or under contract” with the clinic, who “maintains a full and unencumbered physician license” [see §400.9905(5), F.S.] and who, as the clinic’s duly-appointed medical director, has explicit legal responsibility for a number of activities conducted on behalf of the clinic. The latter are as set forth in §400.9935(1) (a) — (g). F-S. 16. Under the Act, the failure of a clinic to employ a qualihed medical director or clinic director constitutes a ground for emergency suspension of the license by the Agency. See §400.9915 (3). F.S. This provision reads: 400.9915 Clinic inspections; emergency suspension: costs.— ek Oe (3) Failure by a clinic licensed under this part to allow full and complete access to the premises and to billing records or information to any representative of the agency who makes a request to inspect the clinic to determine compliance with this part or failure by a clinic to emplov a qualified medical director or clinic director constitutes a ground for emergency suspension of the license by the agency pursuant to s. 120.60(6). [Emphasis added.] 17. Thus, the Agency asserts here that the factual representations made by Respondent about the appointments and service first of Dr. R and thereafter of Dr. Formisano, that both doctors were duly-qualified medical directors who had consented to serve and then did serve as the qualified fas Bo sot ih nm t ne > 2105 FRI 29:28 AM Shutts and Bewen FAX KO, 3053819982 medical director of Respondent's Clinic, constitute material representations under the Act. 18. By and through submission to the Agency on an Agency form Utled “Change of Medical or Clinic Director Form,” dated December 21, 2004, but not received by the Agency until January 11. 2005, the Clinic informed the Agency of a second change of medical director, trom Dr. Formisano to Dr. §. That signed form, signed by Dr. S, indicates that the “last date of affiliation” of Dr. Formisano as the medical director of the Clinic was 12/21/04. 19. Upon receipt by Dr. Formisano of the Agency's above-referenced letter of December 23, 2004 and his thus learning of his reported appointment as the medical director of the Clinic, Dr. Formisano contacted the Agency. He unequivocally stated that he never was employed by or served as the medical director of the Clinic, that he never authorized anyone to sign his name on his behalf as the medical director and that the signature on the application fumished to the Agency by Respondent, purportedly constituting his acceptance on | 1/26/04 of his appointment as medical director of the Clinic, is not his signature. 20. Respondent, by and through its agents, servants or employees falsely represented to the Agency that it had duly appointed Dr. Formisano __ HAP =25-2006 FRI 02:28 AN Sautts asd Bower FAK NO. 3053819982 as its medical director with his consent, including that Dr. Formisano was employed by or under contract with the Clinic as its medical director. This conduct, as alleged herein, constitutes a false representation of material fact. No such contract ever existed. Nor did Dr. Formisano ever accept legal responsibility for the day-to-day operation of the Clinic or for performing any of the several activities required by law of a clinic’s medical director, as set forth in §400.9935(1) (a) -—(g), F-S. 21. §400.991(7)(e), Florida Statutes (2004), expressly authorizes revocation under circumstances such as exist here. The statute reads: 400.991 License requirements; background screenings; prohibitions.— * 1 xe (e) The agency may deny or revoke licensure if the applicant has falsely represented any material fact or omitted any material fact from the application required by this part. [Emphasis added.) 22. Upon amending its application to change its medical] director, Respondent falsely represented as a material fact that Dr. Formisano consented to serve as its medical director al the Clinic, and exacerbated that false representation as a legal basis for licensure revocation by and through a forgery of Dr. Formisano’s signature as part of such [alse representation. 23. Further, the Agency may revoke a license of “any clinic licensed under this part (Chapter 400, Part XIII, Florida Statutes) for operating in violation of the requirements of this part.” See §400.9935(7). Florida MAR-25-2905 ERI 09:26 AM Shutts ard Bower FAA NO. 3963819982 Statutes (2004) (parenthetical added) and §400.995(1), Florida Statutes (2004). Thus, in that such provisions serve as an additional legal basis for revocation, AHCA hereby further alleges and incorporates herein by reference as to this Count I, the allegations set forth both in Count IT and in Count III below as to the alleged violations of the Act set forth therein. COUNT If $5,000 Fine for Failure to Appoint Medical Director in Accordance With §400.9935(1), Florida Statutes (2004) 24. AHCA re-alleges and incorporates by reference paragraphs one (1) through six (6) and eight (8) through three (23) above as if fully set forth herein. 25, The Act requires the appointment of a medical or clinic director for each licensed Florida health care clinic as a critical requirement of the Act, specifying a number of significant duties and obligations of each such director at each clinic, as follows: 400.9935 Clinic responsibilities.-- (1) Each clinic shall appoint a medical director or clinic director who shall agree in writing to accept legal responsibility for the following activities on behalf of the clinic. The medical director or the clinic director shall: (a) Have signs identifying the medical director or clinic director posted in a conspicuous location within the clinic readily visible to all patients. (b) Ensure that all practitioners providing health care services Or supplies to patients maintain a current active and unencumbered Florida license. 10 MArn-25-2005 FRI 03:26 AM Sautts ard Bowen FAK NO. 3053819982 (c) Review any patient referral contracts or agreements executed by the clinic. (d) Ensure that all health care practitioners at the clinic have active appropriate certification or licensure for the level of care being provided. (e) Serve as the clinic records owner as defined in s. 456.057. (f) Ensure compliance with the recordkeeping, office surgery, and adverse incident reporting requirements of chapter 456, the respective practice acts, and rules adopted under this part. (a) Conduct systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlawful. Upon discovery of an unlawful charge, the medical director or clinic director shall take immediate corrective action. If the clinic performs only the technical component of magnetic resonance imaging, static radiographs, computed tomography, or positron emission tomography, and provides the professional interpretation of such services, in a fixed facility that is accredited by the Joint Commission on Accreditation of Healthcare Organizations or the Accreditation Association for Ambulatory Health Care, and the American College of Radiology; and if, in the preceding quarter, the percentage of scans performed by that clinic which was billed to ‘all personal injury protection insurance carriers was less than 15 percent, the chief financial officer of the clinic may, in a written acknowledgment provided to the agency, assume the responsibility for the conduct of the systematic reviews of clinic billings to ensure that the billings are not fraudulent or unlaw ful. 26, Respondent’s conduct as alleged herein constitutes at least one if not multiple violations of the above-referenced statute by Respondent. 27. §400.995, Florida Statutes (2004) authorizes not only revocation ofa license for the subject conduct, bui also in addition, an administrative fine up to $5,000 per violation. This section reads: 400.995 Agency administrative penalties.-- (1) The agency may deny the application for a license renewal, revoke or suspend the license, and impose administrative fines of up ll oa WAR-25-2005 FRI 09:27 Al! Shutts and Bower FAK Ni D co (ae) 0 nn (ae) 819982 to $5,000 per violation for violations of the requirements of this part or rules of the agency. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotiona! harm to a patient will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner, medical director, or clinic director to correct violations. (c) Any previous violations. (d) The financial benetit to the clinic of committing or continuing the violation. {Emphasis added. ] 28. The Agency considered the enumerated factors and determined that the maximum $5,000 fine is warranted here. This is due to the egregious nature and gravity of the combination of Respondent’s actions regarding its multiple appointments of a medical director, including: (a) first and in particular, Respondent's false representation (including forgery) that Dr. Formisano had consented to serve as its medical director; (b) Respondent's inference that the Agency did not need to worry’ further about whether Dr. R was a duly-qualified medical director; (c) the second false representation in December that Dr. Formisano had served as the medical director for nearly a month: and (d) at least one failure if not two failures of Respondent to appoint a duly qualified medical director (i.e., as to Dr. R’s appointment, Respondent’s attendant failure to provide information that would show that Dr. S$ did not have a disqualifying criminal record, leaves 17 MAP-25-2005 FRI 09:27 AM Shutts and Bowen FAK NO. 3053819982 unresolved the background screening issue as to Dr. R). The Agency does not view the Respondent’s actions favorably as to how it dealt with its problems regarding its failed appointments of a duly qualified medical director. COUNT Tl $5,000 Fine for Failure to Comply with §400.992(4), Florida Statutes Regarding Change of Ownership in Corporate Licensee 29. AHCA re-alleges and incorporates by reference paragraphs one (1) through six (6), eight (8) through twenty-three (23) and twenty-five (25) through twenty-eight (28), as if fully set forth herein. 30. The Act specilically requires notice to the Agency regarding certain changes in ownership related to licensed Florida clinics. This includes a change in ownership of 45% or more in the corporate stock of a corporate license, such as Respondent. The pertinent provisions of the Act read: 400.992 License renewal; transfer of ownership; provisional license.— (4) When transferring the ownership of a clinic, the transferee must submit an application for a license at least 60 days before the effective date of the transfer. An application for change of ownership of a clinic is required only when 45 percent or more of the ownership, voling shares, or controlling interest of a clinic is transferred or assigned. including the final transfer or assignment of multiple transfers or assignments over a 2-year period that cumulatively tota! 45 percent or greater. [Emphasis added_] 13 MAR-25-2905 FRI 09:27 AM Shutts acd Bowen FAK NO, 3353819982 31. The importance of this required notice to the Agency by the filing of an application for issuance of a license concurrent wilh the transfer, rests in part upon the legislative requirement that the Agency use such application to identify any new players in the operation of any licensed health care clinic and then perform the required background screening as to such new owners. 32. The statutory requirement for the filing of the change of ownership application and the subsequent issuance of a license based upon that application (even ifa re-issue of a license to the same corporate licensee) also is important in that it assures the public and all owners, whether new owners or old owners who retain an ownership interest in the subject clinic, that the clinic will continue to operate lawfully as a licensed clinic, i.e. that the clinic did not become an unlicensed clinic upon the change in ownership. 33. This latter factor is critically raised by the Act’s express requirement as stated in the very next subsection of the Act after the above- referenced change-of-ownership subsection. That is: (S) The license may not be sold, leased, assigned, or otherwise transferred, voluntarily or involuntarily, and is valid only for the clinic owners and location for which originally issued. [Emphasis added. ] 34, On or about February 3, 2005, the Agency received a packet from Respondent informing the Agency that a transfer of ownership of stock in 14 MAR-23-2005 FRI 09:27 AM Shutts and Bowen FAX NO. 3053819982 the Respondent corporation had occurred on or about January 26, 2005. This transfer concerned more than 45% of the stock in the corporate licensee. The packet did not include any application for change of ownership (nor. obviously, any accompanying application fee). 35. The change of ownership does involve a new individual shareholder. This individual must become the subject of background screening for the existence of any criminal offense that would preclude the issuance of anew license. The new license must be based upon a change of ownership application, not yet filed by Respondent. 36. The Agency is not aware at this time of any ongoing operation of the clinic that would raise the issue as to whether such operation is an unlawful operation without a current valid license. But, it is clear that in the absence of Respondent's filing of the required application with the accompanying payment of the requisite filing fee and background screening fee, the Agency cannot proceed with the background screening of this new individual shareholder. 37. Respondent’s actions herein, as alleged, constitute the violation of §400.992(4), Florida Statutes (2004). 38. In the event that the facts reveal that Respondent continued to operate the Clinic subsequent to the change of ownership, and under the HAR-25-2005 FRI 09:27 AM Shutts and Bowen FAK HO, 3053819982 ownership of the stock of the corporate licensee that includes the new shareholder, then the mandated amount of the administrative fine is $5,000, as set forth in §400.995(7), Florida Statutes (2004), as follows: 400.995 Agency administrative penalties —— Bd Bo as (7) Any clinic whose owner fails to apply for a change-of-ownership license in accordance with s. 400.992 and opcrates the clinic under the new ownership is subject to a fine of $5,000. CLAIM FOR RELIEF WHEREFORE, the Agency respectfully requests that the Administrative Law Judge enter a Recommended Order, as follows: 1. As to the licensure case, that the Agency should revoke the license of Respondent. 2. As to the imposition of administrative fines, that the Agency should impose administrative fines in the total amount of $10,000 upon Respondent, that is, $5,000 each, respectively (a) for Respondent’s failure to comply with §400.9935(1), Florida Statutes (2004), regarding appointment of a medical director and (b) for Respondent’s failure to comply with $400.992(4), Florida Statutes (2004), regarding a change of ownership of more than 45% in the stock of a corporate licensee and then continuing to operate after such change of ownership. 16 MAR-25-2005 FRI 09:27 AM Shutts and Bowen FAK NO. 3053819382 P, 22 RESPONDENT IS FURTHER NOTIFIED THAT THE AGENCY MUST RECEIVE A REQUEST FOR HEARING WITHIN 21 DAYS OF RECEIPT OF THIS PLEADING BY RESPONDENT. FAILURE TO COMPLY WILL CONSTITUTE AN ADMISSION OF JHE FACTS ALLEGED HEREIN AND RESULT IN ENTRY OF A FINAL ORDER BY THE AGENCY CONSISTENT WITH THE ACTIONS CONTEMPLATED BY THE AGENCY IN THIS PLEADING. CERTIFICATE OF SERVICE AHCA, by and through iis undersigned counsel, hereby certifies that a true and correct copy of the foregoing Administrative Complaint, with an Election of Rights form and Explanation of Rights Under Section 120.569, F.S.A. form, have been furnished by certified mail, return receipt requested, to: Michael Gennett, Esq., of SHUTTS & BOWEN, LLP, Attorneys for Respondent, Thirty Six Medical Center, Inc. d/b/a Thirty Six Medical Center, at 201 S. Biscayne Blvd., Suite 1500, Miami, Florida 33131 on this, the pant day of March 2005. Tom R. Moore, Esquire AHCA Senior Attomey 18 Mae-25-2905 FRI 29:27 AM Shutts and Bowen FAK NO, 3053819932 “P23 that the Agency should impose a comp!aint investigation fee regarding the 3. Further, as authorized by §400.9915(4), Florida Statutes (2004), false representation that Dr. Formisano had agreed to serve as the medical director of Respondent’s clinic (including the forgery of Dr. Formisano’s signature), in the amount of the cost of the investigation (to be established by the evidence). ‘) Respectfully submitted this 20 day of March 2005. Nowe we Tom R. Moore, Esquire AHCA Senior Attorney Fla. Bar No. 097383 Agency for Health Care Administration Building #3, MSC #3 2727 Mahan Drive Tallahassee, FL 32308 (850) 922-5873 (office) (850) 413-9313 (fax) NOTICE Respondent is notified that it has a right to request an administra- tive hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (recognizing that such request already has been made here as to the licensure case). Specific options for administrative review of the fines sought herein are set out in the attached Election of Rights form and explained in the attached Explanation of Rights form. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to Mr. Richard Shoop, Agency Clerk, Agency for Health Care Administration, Building #3, MSC #3, 2727 Mahan Drive, Tallahassee, Florida 32308. Picase also furnish a copy thereof to the undersigned AHCA counsel. 17

Docket for Case No: 05-001463