STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 07-0888MPI ; C.I. No. 04-2340-000 GABRIEL A. DECANDIDO, M._D., P.A., RENDITION NO.: AHCA-08- O44 -S-MD: Respondent. FINAL ORDER The Respondent and the Office of the Attorney General, Medicaid Fraud Control Unit entered into a Settlement Agreement on May 2, 2007. This settlement included repayment of all losses suffered by AHCA and resolved the AHCA overpayment in full, as part of the global terms of the settlement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ad day of une , 2008, in Tallahassee, Florida. ia 7, Y dass je Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL-ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, 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: L. William Porter IL, Esquire Agency for Health Care Administration (Laserfiche) Lester J. Perling, Esquire Broad and Cassel One Financial Plaza, Suite 2700 Ft. Lauderdale, Florida 33394 (U.S. Mail) R. B. McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Ken Yon, Chief, Medicaid Program Integrity Jill Smith, Medicaid Program Integrity Finance and Accounting CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to fp —_ the above named addressees by U.S. Mail on this the7 day of __\ Jere_._, 2008. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 OFFICE OF THE ATTORNEY GENERAL Medicaid Fraud Control Unit OFS : % David Lewis VE OF AG Chief Assistant Attorney General . PL-01 The Capitol BILL McCOLLUM Tallahassee, FL 32399-1050 ATTORNEY GENERAL Phone (850) 414-3300 Fax (850) 487-9475 STATE OF FLORIDA hitp://www.myfloridalegal.com March 10, 2008 Mr. L. William Porter II, Esq. Assistant General Counsel Agency For Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308 RE: Gabriel A. Decandido, M.D., P.A. MFCU #05-02-0078 Dear Bill: This letter responds to your inquiry regarding the status of the MFCU settlement with the referenced. All terms of the settlement have been fulfilled. The Medicaid overpayment in this case was $81,194.70. That sum has been remitted to AHCA by the Office of the Attorney General. If you have any questions or concerns, please call me at (850) 414-3919. Cordially, cl Mie David A. Lewis Chief Assistant Attorney General Appendix 4 ol “EOF THE ATTORNEY GENERAL Medicaid Fraud Control Unit Mary Lou Cuellar : —_ Assistant Attorney General 3507 East Frontage Road Suite 325 : NINE On Tampa, Florida 33607 i GENERAL Telephone (813) 287-7240, : STATE OF FLORIDA Fax (813)281-5513 ne ee ttn EARN SE I July 25, 2007 Lester Perling, Partner Broad and Cassel One Financial Plaza, Suite 2700 Ft. Lauderdale, Florida 33394 Re: State of Florida ex ref, Michael Flanery v. Gabriel Decandido, M.D., and Gabriel Decandido, M.D., P.A. . Case No.: 2005 CA 0065 Dear Lester: 1 am writing this letter to confirm the receipt of the check from the Broad and Cassel Trust Account in the amount of $171,558.17, in satisfaction of Dr. Decandido’s obligations pursuant to the Settlement Agreement in the above referenced matter. Please do not hesitate to contact me if you need additional information. oy Cle Mary Lou Cuellar Assistant Attorney General San carmen ca terme setter meee Amen en tng rete ane thin en antes Hee aren thygect we pint wavneunee ee Se Appendix os OS 02> OO18 0s0/- oS” IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA STATE OF FLORIDA ex rel. MICHAEL FLANERY, Plaintiff, Case No. 2005 CA 0065 Ov GABRIEL DECANDIDO, M.D., and GABRIEL DECANDIDO, M.D., P.A., Defendants. foe wena ee SETTLEMENT AGREEMENT This Settlement Agreement (“Agreement”) is entered into between the STATE OF FLORIDA acting through its MEDICAID FRAUD CONTROL UNIT of the OFFICE OF THE ATTORNEY GENERAL (“MFCU”); MICHAEL FLANERY (“Relator”); and GABRIEL DECANDIDO, M.D., and GABRIEL DECANDIDO, M.D., P.A. (“Decandido”) hereinafter referred to collectively as “the Parties,” . through their authorized representatives. As a preamble to this Agreement, the Parties agree to the following: A. Defendant, Gabriel A. Decandido, M.D., P.A., is a Florida Corporation, and is a Medicaid provider assigned pay-to provider number 068744800. Defendant, Gabriel A. Decandido, M.D., isa medical doctor and Medicaid-enrolled provider who . practices in Pinellas County, Florida. Relator, Michael Flanery, worked for Defendants as a patient accounts representative between August 2002 and February 2004. Appendix 2 Page 1 of 19 B. The MFCU conducted an investigation of Decandido’s alleged improper claims for and receipt of Medicaid payments from Florida’s Agency for Health Care Administration (hereinafter “AHCA”). As used herein the term “Investigation” shall mean MFCU’s investigation into Decandido’s alleged upcoding of claims to the Florida Medicaid program for Current Physician’s Terminology (“CPT”) Evaluation and Management procedure codes for new patient office visits (CPT codes 99201- 99208), established patient office visits (CPT codes 99211-99216), initial hospital care (CPT codes 99221-99223), subsequent hospital care (CPT codes 99231-99233), subsequent nursing care (CPT codes 99311-99313), hospital discharge more than 30 minutes (CPT code 99239), and submission of claims to Florida Medicaid for interpretation of electrocardiograms (CPT codes 93000 and 98010), during the period January 1, 2000, through December 31, 2004. Decandido submitted these claims through Medicaid Provider Number 068744800. The term “Investigation” includes the allegations raised by Relator in the civil complaint now pending in the State of Florida ex rel, Michael Circuit Court of the Second Judicial Circuit styled, Flannery v. Gabriel Decandido, M.D., and Gabriel Decandido, M.D., P.A., Case No. 2005 CA 0065. The MFCU-investigated conduct is the “Covered Conduct,” as used hereafter. C. MFCU contends it has certain statutory and common-law civil claims against Decandido as a result of Covered Conduct. D. The Parties desire to conclude the aforementioned Investigation into the Page 2 of 19 Covered Conduct and to settle and compromise on all claims, including, but not limited to, any claims pursuant to §§ 68.081 through 68.092, Florida Statutes, against Decandido arising out of the Covered Conduct. The Parties enter into this full and final Settlement to avoid the delay, uncertainty, inconvenience, and expense of protracted litigation of these claims. NOW, THEREFORE, in consideration of the mutual promises, covenants, herein, the Parties agree as follows: “Settlement Amount”). The Settlement Amount represents proceeds recovered of ‘Tithe foregoing payments shall be made under all of the following terms: (a) Decandido agrees. to.pay.the-one-lump*sunramount.of,.. eipt of the fully $174;656:47-t0-the- MEGU-within.90.days.of hi executed Settlement:Agreementi: United States currency. (c) The certified or cashier’s check shall be payable-to“Office of the _ Attorney-General.” :. Page 3 of 19 and obligations set forth below, and for good and valuable consideration as stated (a) If Decandido elects to pay the Settlement Amount by wire transfer, Decandido agrees any such wire transfer shall be treated as a proposed payment whose acceptance can be affirmed only by the Deputy Attorney General's signature below on this Settlement Agreement. All other provisions regarding effective date will remain.unchanged by the final acceptance of the payment by. wire transfer. from Decandido and as soon as feasible after receiving such payments from Decandido, the MFCU agrees to pay Relator 18% of the proceeds recovered, or $29,230.09. The.MFCU also agrees to pay Relator’s attorney’s fees in the amount of $2,625.00 from the Settlement Amount. . (f) After distribution of proceeds to the Relator in accordance with subparagraph (e), and prior to any other distribution, the MFCU shall transfer to AHCA that portion of the Settlement Amount constituting the Medicaid program loss. 20 Subject to the exceptions in Paragraph 4 (“Scope of Release”) and Paragraph 5 (“Bankruptcy Provisions”), upon full execution of this Agreement by all Parties and Decandido’s remittance to the MFCU of the settlement amount as provided in Paragraph 1, the MFCU agrees to dismiss with prejudice the civil complaint now pending against Decandido in the Circuit Court of the Second Judicial Circuit styled, State of Florida ex rel. Michael Flannery v. Gabriel Page 4 of 19 i (e), Contingent upon the State of Florida receiving the payment due Decandido, M.D., and Gabriel Decandido, M.D., P.A., Case No. 2005 CA 0065, and release Decandido from any and all civil and administrative actions, causes of action, obligations, liabilities, claims, or demands for compensatory, special, punitive, exemplary, or treble damages, or demand whatsoever in law or in equity, which were asserted or maintained or could have been asserted or maintained, against Decandido based upon the Covered Conduct specifically defined in _ Preamble Paragraph B. This release is not intended to pertain to services billed to Medicaid by Decandido which were performed by a provider not enrolled in Decandido’s group or not enrolled in Medicaid. The Settlement Agreement will have no actual or intended effect until executed by MFCU’s authorized representative. In the event Decandido makes payment of the Settlement Amount prior to full execution of this Agreement, MFCU may deposit the Settlement Amount in an escrow account pending execution and such deposit shall not be construed as acceptance of the terms of this Agreement. 3. Upon receipt of the payment described in Paragraph 1(e), Relator agrees to release the State of Florida, and its officers, agents, and employees from any claims arising from or relating to §§ 68.081-.089, Florida Statutes, or arising from the filing of the Complaint, including §§ 68.083, .084, .085, and .086, Florida Statutes, and for a share of the Settlement Amount. The Relator agrees and confirms that this Agreement is fair, adequate, and reasonable under all the circumstances, pursuant to § 68.084, Florida Statutes. Page 5 of 19 4, Scope of Release: Notwithstanding any term of this Agreement, the following are specifically reserved and excluded from the scope and terms of this Agreement as to any entity or person, including Decandido: (a) |MFCU, AHCA or other appropriate law enforcement or regulatory agency or private party suit against Decandido or any predecessor, successor, director, officer, employee, assign or agent of Decandido for: (1) Any administrative or civil cause of action for any violation of law not encompassed within the Investigation as defined in Preamble Paragraph B; or (2) Any criminal liability. Accordingly, Decandido agrees not to assert the defenses of res judicata, collateral estoppel, excessive fines, or double jeopardy as to actions described in Subparagraphs (a)(1) and (a)(2). (b) Any actions or matters involving the exclusion of Decandido or other entities or persons from Federal or State, including Florida, health care programs; (c) Any administrative action(s) relating to professional licensure or adjudication of claims by persons or entities who are not parties to this Settlement Agreement; (a) Any claims based upon such obligations as are created by this Agreement; Page 6 of 19 (e) Any liability to the State of Florida, including MFCU and OAG, for any conduct other than the Covered Conduct: () Any express or implied warranty claims or other claims for defective or deficient products or services, including quality of goods and services, provided by Decandido; (g) Any claims for personal injury or property damage or for other consequential damages arising from the Covered Conduct) (h) Any claims based on a failure to deliver items or services due; and @ Any action against a healthcare professional, including Decandido and any of its employees or agents, for practicing without the necessary license or certification. 5. Bankruptcy: The Parties warrant and agree to the following bankruptcy provisions: (a) Decandido warrants that he has reviewed his own financial position and Decandido is solvent within the meaning of Title 11 of the United States Code (hereinafter “11 U.S.C.”), §§ 547(b)(8) and 548 (a)(1)(B)Gi)(D, and will remain solvent through the date of payment to the MFCU of the Settlement Amount. (b) Further, the Parties warrant that, in evaluating whether to execute this Agreement, they Page 7 of 19 () have intended that the mutual promises, covenants, and obligations set forth constitute a contemporaneous exchange for new value given to Decandido, within the meaning of 11 U.S.C. § 547(c)(1); and (2) conclude that these mutual promises, covenants, and obligations do, in fact, constitute such a contemporaneous exchange. (c) Further, the Parties warrant that the mutual promises, covenants, and obligations set forth herein are intended and do, in fact, represent a reasonably equivalent exchange of value which is not intended to hinder, delay, or defraud any entity to which Decandido was or became indebted, on or after the date of this transfer, all within the meaning of 11 U.S.C. § 548(a)(1). (d) The Parties agree the Settlement Amount as defined in Paragraph 1 is a penalty as used in 11 U.S.C. § 523(a)(7) and § 1141(d)(2). (e) Accordingly, the Parties agree within ninety-one (91) days of the Effective Date, if Decandido commences any action under any law of bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have any order for relief of Decandido’s debts; seeking to adjudicate Decandido as bankrupt or insolvent; or seeking appointment of a receiver, trustee, custodian, or other similar official for Decandido or for all or any substantial part of Decandido’s assets, Decandido agrees as follows: (1) Decandido’s obligations under this Agreement may not be avoided pursuant to 11 U.S.C. §§ 547 or 548, and Decandido shail not argue or Page 8 of 19 otherwise take the position in any such case, proceeding, or action that: Decandido's obligations under this Agreement may be avoided under 11 U.S.C. §§ 547 or 548; Decandido was insolvent at the time this Agreement was entered into, or became insolvent as a result of the payment made to the MFCU hereunder; or the mutual promises, covenants, and obligations set forth in this Agreement do not constitute a contemporaneous exchange for new value given to Decandido. (2) If Decandido’s obligations under this Agreement are | avoided for any reason, including, but not limited to, through the exercise of a trustee's avoidance powers under the Bankruptcy Code, the MFCU, at its sole option, may rescind the releases in this Agreement, and bring any civil and/or administrative claim, action, or proceeding against Decandido for the claims that would otherwise be covered by the releases provided in Paragraphs 2 and 3. (8) Decandido agrees that any such claims, actions, or proceedings brought by the State of Florida (including any proceedings to exclude Decandido from participation in Medicare, Medicaid, or other Federal health care programs) are not subject to an automatic stay pursuant to 11 U.S.C. § 362(a) as a result of the action, case, or proceeding described in the immediately proceeding Subparagraph 4(e)(2). Decandido will not argue or otherwise contend that the State of Florida’s claims, actions, or proceedings are subject to an automatic stay. Decandido will not plead, argue, or otherwise raise any defenses under the theories of statute of limitations, laches, estoppel, or similar theories, to any such civil or Page 9 of 19 administrative claims, actions, or proceeding which are brought by the State of Florida within 90 calendar days of written notification to Decandido that the releases herein have been rescinded pursuant to this Paragraph, except to the extent such defenses were available on the first day of the Investigated period. (4) Decandido acknowledges that his agreements in this Paragraph are provided in exchange for valuable consideration provided in this Agreement. — ; 6. Continual Compliance: Decandido agrees to abide by and obey all statutes, regulations and official directives of the United States and Florida, including their departments and agencies, pertaining to Medicaid, to the extent the said statutes, regulations, and official directives apply to Decandido. Should Decandido fail to abide by and obey the aforesaid Medicaid statutes, regulations, and official directives of the United States and Florida, the MFCU shall be free to pursue such civil or criminal actions against Decandido as it deems appropriate. 7. No Admission of Fault: This Agreement, any exhibit or document referenced herein, any action taken to reach, effectuate, or further this Agreement, and the terms set forth herein, shall not be construed as, or used as, an admission by or against any of the Parties of any fault, wrongdoing, or liability. whatsoever. Entering into or carrying out this Agreement, or any negotiations or proceedings related thereto, shall not in any event be construed as, or deemed to be evidence of, an admission or concession by any of the Parties, or to be a waiver of any applicable Page 10 of 19 defense. However, with the exception of certain bankruptcy provisions in Paragraph 5, nothing in this Agreement, including this Paragraph, shall be construed to limit or to restrict Decandido’s right to utilize this Agreement, or payments made hereunder, to assert and maintain the defenses of res judicata, collateral estoppel, payment, compromise and settlement, accord and satisfaction, or any legal or equitable defenses in any pending or future legal or administrative : action or proceeding arising out of the specific subject matter of the Investigation, as defined in Preamble Paragraph B. Decandido does not admit MFCU’s contentions that arise from its Investigation of the Covered Conduct, set forth in Preamble Paragraph B, and specifically denies Decandido knowingly submitted or caused the submission of any claims in violation of state or federal law. This Agreement, and the payment, promises, and release provided hereunder, are not and shall not be construed to be an admission of liability or any acknowledgment of the validity of any of the claims that were or that could have been asserted by the MFCU against Decandido, arising out of the Investigation, which liability or validity is hereby expressly denied by Decandido. 8. Denied Medical Claims: The Settlement Amount shall not be decreased as a result of the denial of claims for payment now being withheld from payment by AHCA or its intermediary agents related to the Covered Conduct. Decandido agrees not to resubmit to Medicare, Medicaid or any State or Federal payer any previously denied claims related to the Covered Conduct and agrees not Page 11 of 19 to appeal any such denials of claims. 9. Complete Resolution: The Parties have agreed that the terms of this Agreement constitute a complete resolution and settlement of the claims asserted against Decandido by the MFCU arising out of the Investigation described in Preamble Paragraph B. Upon Decandido's continued fulfillment of its obligations under this Agreement , and payment of the lump-sum amount provided in Paragraph 1, the Investigation, as defined in Preamble Paragraph B, shallbe concluded. 10... Survival: This Agreement shall be binding upon-and inure to the benefit of the Parties and their successors, transferees, heirs, and assigns. 11. Merger: This Agreement constitutes the entire agreement between the Parties with regard to the subject matter contained herein and all prior negotiations and understandings between the Parties shall be deemed merged into this Agreement, 12. No External Representations: No representations, warranties, or inducements have been made by the MFCU concerning this Agreement other than those representations, warranties, and covenants contained in this Agreement. 13. No Oral Modifications or Waivers: No waiver, modification, or amendment of the terms of this Agreement shall be valid or binding unless in writing, signed by the Party to be charged, and then only to the extent set forth in such written waiver, modification, or amendment. Page 12 of 19 14. Failure of Strict Performance: Any failure by any Party to the Agreement to insist upon the strict performance by any other Party of any of the provisions of this Agreement shall not be deemed a waiver of any of the provisions of this Agreement, and such Party, notwithstanding such failure, shall have the right thereafter to insist upon the specific performance of any and all of the provisions of this Agreement. | 15. Choice of Law: This Agreement shall be governed by, and construed _ and enforced in accordance with the laws of the State of Florida, without regard to its conflict of law principles. 16. ° Release of Florida: Decandido fully and finally releases the MFCU, the OAG, the State of Florida, its agencies, employees, servants, and agents from any claims (including attorney’s fees and costs of any kind) that Decandido has asserted, could have asserted, or may assert in the future against the MFCU, the OAG, or the State of Florida, its agencies, employees, and agents arising out of or resulting from the Investigation as defined in Preamble Paragraph B. . 17. Contract Beneficiaries: This Agreement is intended to be for the benefit of the Parties only, and by this instrument the Parties do not release any claims against any other person or entity, except to the extent provided for in the immediately preceding Paragraph. 18. Contribution from Medical Beneficiaries: Decandido waives and shall not seek payment for any of the health care billings covered by this Agreement from Page 13 of 19 any health care beneficiaries or their parents, sponsors, legally responsible individuals, or third party payers based upon the claims defined as Covered Conduct. 19. Litigation Costs: With exception of investigative costs and litigation costs which may be specifically provided for in Paragraph 1, each party to this Agreement shall bear its own legal and other costs incurred in connection with this matter, including the preparation and performance of thisAgreement. 20. Unenforceable Clause: Neither Party shall challenge the legality or enforceability of this Agreement. If any clause, provision, or section of this Agreement shall, for any reason, be held illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other clause, provision, or section of this Agreement, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable clause, section,.or other provision had not been contained herein. 21. Arms Length Negotiations: The Parties executed this Agreement after arms length negotiations and it reflects the conclusion of the Parties that this Agreement is in the best interest of all the Parties. Each Party is satisfied with the Agreement's language and construction, and therefore the interpretation of the terms of this Agreement shall not be construed against any of the Parties. Each Party represents that this Agreement is freely and voluntarily entered into without any degree of duress or compulsion whatsoever. Page 14 0f 19 22. Authority to Execute Agreement: The undersigned individuals signing this Agreement on behalf of Decandido and Relator represent and warrant that they are authorized to execute this Agreement. The undersigned MFCU signatories represent that they are signing this Agreement in their official capacities and that they are authorized to execute this Agreement. 23. Effective Date: This Agreement is effective on the date of signature of the last signatory to the Agreement (“Effective Date”). ee 24. Non-Punitive Effect: The Parties agree that this Settlement is not punitive in purpose or effect. 25. IRS Characterization: Nothing in this Agreement constitutes an agreement or representation characterizing the Settlement Amount for the purposes of the Internal Revenue Code, Title 26 of the United States Code. 26. Public Disclosure: All Parties acknowledge this Agreement is a public record. 27. Introductory Signals: The introductory paragraph signals are for subject identification only and do not affect the meaning or become part of the Agreement. Page 15 of 19 For the State of Florida Dated: Io. 2007 py elu. baw Robert A. Hannah ; Deputy Attorney General Office of the Attorney General The Capitol ~~" "Pailahassee, Florida 82399-1050 Page 16 of 19 For the Relator Lite Relator Michael Fla: am Page 19 of 19 gg} Case Report: Decandido Gabriel A 2 Settlement Division Review Complete?: Status: Attorney handling: Individual or Corporation Name: Type of settlement: Other associated agencies: Other agency case numbers: - Other agency contacts: OAG Case #: 05-02-0078 CONFIDENTIAL @ Yes © No - Settlement completed . haa Mary Lou Cuellar Ciick for attorney's contact information —> 60 Gabriel A. Decandido © Global @ Statewide O Qui Tam NIA NIA A Date of Execution: Total Identified on Settlement Agreement: Quarter Reported to HHS: 05/02/2007 $171,558.17 06/30/2007 The total single amount is $81,194.70. Settlement's key components The settlement includes double the amount of the overpayment, plus Cost of Investigation, $9,168.77, for a total settlement amount of $171,558.17. We also agreed to award the relator 18% of the recovered proceeds and an attorney's fee of $2,625.00 as required by the Florida Statutes. The relator's fee and the attorney's fee would come out of the penalty amount. The settlement agreement allows Defendant 90 days to pay the settlement sum. Payable to AHCA: MFCU.investigative Cost: MFCU Interest: MFCU Penalties: MFCU Forfeitures: Settlement Terms $81,194.70 $9,168.77 $49,339.61 Entity Relator : Relator - Attorney mount | 29,230.09 | 2,625.00 Special comments: ‘ 06/06/07- A copy of the settlement agreement was hand delivered to F & A.(atodd) 07/16/2007 08:16:32 AM Receivables: Created by Paula Holder on 12/20/2006 01:30:52 PM Last Updated by Paula Holder on 07/13/2007 11:49:27 AM 07/16/2007 08:16:32 AM

Docket for Case No: 07-000888MPI