Findings Of Fact Respondent was originally licensed to practice medicine in Florida on August 15, 1956. Respondent's license was placed on inactive status on December 13, 1979, and currently remains on inactive status. Respondent's last known address is 6201 Riverdale Road, Riverdale, Maryland 20801 (Petitioner's Exhibit No. 1). On May 6, 1983 Respondent, by Indictment No. 18312601, was indicted for six counts of Medicaid fraud, three counts of false pretenses and one count of theft in the Circuit Court for Baltimore City, Maryland (Petitioner's Exhibit No. 2). On March 12, 1984, after Respondent's bench trial, the Circuit Court for Baltimore City ordered a judgment of conviction as to the six counts of Medicaid fraud. Respondent was acquitted of the other four counts of the indictment (Petitioner's Exhibit No. 2, P. 39 of the memorandum opinion). Respondent's conviction resulted from the inclusion of nonallowable costs in applications for Medicaid funds submitted by Magnolia Gardens Nursing Home while Respondent was the administrator and a 50 percent owner of the nursing home. The trial court specifically found that Respondent knew that nonreimbursable costs for construction done to Respondent's personal residences and medical office building were included in applications for Medicaid payments (Petitioner's Exhibit No. 2, p. 39 of memorandum opinion). Use of Medicaid funds for improvements to a private physician's office is a violation of Maryland state law which clearly relates to the practice of medicine. As a result of Respondent's conviction for Medicaid fraud, he was sentenced to concurrent five-year terms of imprisonment on each of the six counts. All but 18 months of the sentence was suspended. Respondent was placed on 18 months of work release and 18 months of community service after work release at the rate of 20 hours per week. Respondent was also fined $60,000 and ordered to pay $50,000 restitution. Additionally, Respondent was placed on two years of unsupervised probation (See docket entry of April 23, 1984, Petitioner's Exhibit No. 2). On April 30, 1984 Respondent appealed his conviction to the Court of Special Appeals of Maryland (See docket entry of April 30, 1984, Petitioner's Exhibit No. 2). On November 6, 1985 the Maryland Court of Special Appeals rendered its opinion in William R. Greco v. State of Maryland, Case No. 171 (Petitioner's Exhibit No. 2). Respondent's conviction was affirmed in all aspects and Respondent's sentence was affirmed as to the order to make restitution which was vacated (See Mandate of the Court of Special Appeals of Maryland, dated December 6, 1985, Petitioner's Exhibit No. 2). On October 3, 1986, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals. Greco v. State, 307 Md. 470, 515 A.2d 220 (1986). On December 4, 1984 Respondent was suspended from participation in the federal Medicare and Medicaid programs for a period of ten years (Petitioner's Exhibit No. 3).
Recommendation It is recommended that Respondent's license to practice medicine be revoked. DONE and ORDERED this 30 day of December, 1986 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William W. Cahill, Jr., Esquire WEINBERG and GREEN 100 South Charles Street Baltimore, Maryland 21201 Dr. William R. Greco 6201 Riverdale Road Riverdale, Maryland 20737 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against the license of Respondent to practice pharmacy.
Findings Of Fact A Complaint and Notice to Show Cause was filed against the Respondent, Francisco DeQueuedo, a registered pharmacist, on December 27, 1978, alleging that the Respondent failed to maintain on a current basis a complete and accurate record of controlled substances, and that he placed false or fraudulent information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, located at 6661 SW 8th Street, Miami, Florida. A hearing was requested by the Respondent on January 5, 1979. Notice of Hearing was sent to the parties on February 5, 1979. The first witness called on behalf of the Petitioner was V. K. Bell, Agent for the Florida Board of Pharmacy and a licensed pharmacist. Agent Bell testified that while at a local wholesaler in the Miami area he noticed that Ponce de Leon, Inc., doing business as Capel Drugstore, had been buying a large volume of Quaalude tablets, which is a Schedule II controlled substance that has been the subject of high abuse in the Dade County area. Thereupon, he proceeded to Capel Drugstore in order to review their records. He said he found that the prescription records did not account for proper disposition through lawful dispensing of a large volume of the Quaalude tablets that were purchased and documented by the invoices. He testified that he talked with the Respondent, Francisco DeQueuedo, and Milagros Ferreras, one of the owners of Ponce de Leon, Inc., doing business as Capel Drugstore. Mr. Bell advised the Respondent and the owner of the drugstore of their right to remain silent and not answer any questions, that anything they said could be used against them, and that they had the right to have an attorney present if they desired. He then questioned the Respondent and Ms. Ferreras. Ms. Ferreras stated that she had bought a bad business and found she was having financial difficulties with the business, and she started to sell Quaalude tablets for 50 cents each to some 15 or 20 different people without prescriptions. Mr. Bell testified that Ms. Ferreras then stated that she had made the various sales without prescriptions and that the pharmacist, Respondent DeQueuedo, did not dispense any of the controlled substances. Agent Bell testified that the Respondent admitted to him that he knew that Ms. Ferreras was making these sales, and that she would from time to time bring him several prescriptions which he would sign, indicating that he did in fact fill them, although he had not, and then put them on file at the pharmacy in an attempt to cover up some of the shortages due to the unlawful sales of Quaalude tablets. After this conversation Mr. Bell testified that he proceeded to do a drug accountability audit for the period of time the Respondent worked at the pharmacy. Mr. Bell said that even with giving the pharmacy credit for those prescriptions which were signed by the Respondent, he could not account for 27,440 Quaalude tablets. The drug accountability report was identified by Mr. Bell and was introduced into evidence as Petitioner's Exhibit number 1. Agent Bell identified a series of documents which constituted various invoices and prescriptions utilized in the drug accountability audit as well as a perpetual inventory which the Respondent had run. These documents were marked as Petitioner's Composite Exhibit number 2 and were introduced into evidence. Thereafter, Mr. Bell identified a document, which he noted was a receipt which he gave to the pharmacist noting the various invoices contained in Composite Exhibit number 2, which were removed from the pharmacy. This receipt was marked as Petitioner's Exhibit number 3 and was introduced into evidence. Mr. Bell verified a document which was a copy of the receipt that he gave to the Respondent when he removed the original prescriptions from their file, which prescriptions were also part of the Composite Exhibit number 2. This receipt was marked as Petitioner's Exhibit number 4 and was introduced into evidence. Mr. Bell then identified another document, which was marked for identification as Petitioner's Exhibit number 5, and testified that this was a statement made to him in his conversations with the Respondent and owner, which he reduced to writing and which both the Respondent and the owner, Ms. Ferreras, signed. Exhibit number 5 substantiates the testimony which was given by Mr. Bell in respect to the unlawful dispensing of controlled substances by Ms. Ferreras, one of the owners, falsification of the prescription records by the Respondent, and the shortages found in the drug accountability audit. Robert S. Pacitti, a police officer with the Dade County Public Safety Department, was called as a witness for the Petitioner. Officer Pacitti stated that he had received a telephone call from Agent Bell with reference to the Respondent and to Ms. Ferreras. Officer Pacitti testified that he went to the Capel Drugstore and advised both the Respondent and Ms. Ferreras, the owner, of their Miranda rights. Officer Pacitti obtained a verbal statement from the Respondent, Francisco DeQueuedo, that he was aware of the fact that the owner was dispensing the Quaalude tablets. Officer Pacitti then took Ms. Ferreras down to the Dade County Public Safety Department, where she made a statement taken by a stenographer in Officer Pacitti's presence confirming the testimony of Agent Bell and Officer Pacitti. Officer Pacitti identified a document marked as Petitioner's Exhibit number 6 as a copy of the statement of Milagros Ferreras, and thereafter this statement was introduced into evidence as Petitioner's Exhibit number 6. Officer Pacitti testified that even though the large quantity of Quaalude tablets was being sold for 50 cents each, the street value of these tablets was somewhere between $3.00 and $5.00 per tablet. After listening to the testimony of Agent Bell and Officer Pacitti, and after examining the exhibits introduced into evidence, it is the finding of this Hearing Officer that the Respondent did permit the improper keeping of records at Ponce de Leon, Inc., doing business as Capel Drugstore, and that complete and accurate records of controlled substances were not maintained on a current basis. It is the further finding of this Hearing Officer that the Respondent filed false information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, by placing prescriptions in the files which were not actually dispensed by the Respondent to the individuals named thereon. The Hearing Officer finds that the Respondent knew the owner of the business was improperly dispensing and selling the Quaalude tablets.
Recommendation Revoke the license to practice pharmacy in the State of Florida issued to Francisco DeQueuedo, the Respondent. DONE and ORDERED this 15th day of March, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jack R. Blumenfeld, Esquire 619 NW 12th Avenue Miami, Florida 33136 Michael Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 H. F. Bevis Florida Board of Pharmacy Post Office Box 3355 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1976, a Florida-licensed pharmacist. At all times material to the instant case, Respondent was employed by Eckerd Corporation as one of two full-time pharmacists assigned to the Eckerd Drug Store (Store Number 3372) located at 312 North Lake Boulevard in North Palm Beach, Florida, which housed a community pharmacy that was open 14 hours a day. Respondent and the store's other full-time pharmacist worked separate, alternating shifts. At the beginning of each shift, Respondent "signed on" the pharmacy's computer system. She "logged off" the system at the end of the shift. Respondent was responsible for the supervision of all activities in the pharmacy during her shift. Among the activities it was her responsibility to supervise were those engaged in by the pharmacy technician on duty. The pharmacy technician assisted Respondent by, among other things, preparing computer-generated prescription labels and customer receipts for prescriptions that needed to be filled. The technician prepared these items by entering the required information, including the name and strength of the prescribed medication, into the pharmacy's computer system. 1/ All prescription labels and customer receipts prepared by the pharmacy technician on duty during Respondent's shift contained Respondent's initials ("MCB"). After they were prepared, the prescription labels and customer receipts were placed in bags, and the bags were put in baskets on the counter near Respondent, where they remained until the prescriptions were filled. When filling a prescription, it was Respondent's practice to examine the actual prescription written by the prescribing physician or, in the case of an oral prescription, the pharmacy's written record of such prescription, to confirm the accuracy of the prescription information on the prescription label and customer receipt and to make sure that she was dispensing what the physician had prescribed. 2/ The pharmacy was a "very busy" one. As a result, at the end of her shift, there were sometimes prescriptions for which labels and receipts (bearing her initials) had been prepared, but which Respondent had not had the opportunity to fill, and it was not until the following shift, when she was off duty, that these prescriptions were actually filled. Respondent was on duty on June 18, 1998, when a computer-generated prescription label and customer receipt for a prescription (Prescription Number 6071853) for Patient H. V. were prepared. The computer-generated prescription label and customer receipt, which had Respondent's initials on them, indicated, among other things, that the prescription was for 15 180 milligram tablets of Thyroid and that the prescribing physician was Dr. H. Pomeranz. It is unclear when, and by whom, Prescription Number 6071853 was filled. On or about October 9, 1998, Patient H. V.'s son, R. V., filed a complaint with Petitioner alleging that "the prescription [his mother] was suppose[d] to [have] be[en] taking was 15 mil[li]grams," but she instead "was given 180 mil[lli]grams per day by [the] Eckerd Drug Store [on North Lake Boulevard]." David Dimon, a Medical Malpractice Investigator with the Agency for Health Care Administration, investigated the complaint. As part of his investigation, Mr. Dimon contacted Respondent, who advised him that she did not want to make a statement regarding the complaint. Mr. Dimon also spoke with the prescribing physician, Dr. Pomeranz, who told him that she "prescribed Thyroid, 15 milligrams, for the patient, and not the 180 milligram dose given by Eckerd Pharmacy." 3/ Dr. Pomeranz further indicated to Mr. Dimon that H. V. 4/ suffered "side effects" as a result of taking the 180 milligram tablets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing the Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STUART M. LERNER 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 13th day of March, 2001.
Findings Of Fact At all times relevant hereto, respondent, Edwardo A. Garcia, held physician license number ME 0021719 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners (DPR). Garcia is a 1936 graduate of the medical school at the University of Colombia in Bogota, Colombia. He moved to New York City in 1959 where he completed a residency in neurology and psychiatry. He was then issued a temporary license to practice medicine in the State of New York. In 1973, Garcia relocated to Vero Beach. He received his Florida license the following year and practiced in the field of family medicine until May, 1986 when he sold his practice. He is now retired. Earl D. Tovatt, a sixty-two year male whose complaint against respondent precipitated this proceeding, has a long history of back ailments. He fell off of a bunk bed in 1943, was a passenger in an Army jeep that struck a land mine in 1944, and unsuccessfully attempted to lift a 350 pound woman in 1950. As a result of these unfortunate incidents, Tovatt has used various back braces and orthopedic shoes, and has had at least five myelograms since 1951. He has also been treated by a shopping list of physicians over the years, most of whom were in the Detroit area where he once lived. For back pain, Tovatt began using prescription drugs many years ago. By his own admission he became addicted to painkillers as early as 1979. He began with codeine and empirim, but later switched to pure codeine. He then used percodan, and finally began using demerol in 1977. Demerol is a Schedule II controlled substance and has a high potential for abuse. It can also cause addiction after a short period of use. Access to quantities of demerol was made easier by the fact that Tovatt's wife was a medical doctor at the Doctor's Clinic in Vero Beach. Tovatt received demerol injections from his wife until 1981 when they divorced. Thereafter, Dr. Tovatt continued to give her former husband prescriptions of demerol (one per month) for another year. Beginning in 1982, and continuing until at least December, 1984, Tovatt was treated without charge by Dr. Gold, one of his ex-wife's partners at the clinic. Initially Dr. Gold gave Tovatt one or two injections of demerol per day for pain. By December, 1984, however, Dr. Gold had reduced the injection to one-half of an ampule per day. Because he was still experiencing pain, Tovatt was advised by an unnamed clinic employee in December, 1984 to contact respondent to obtain more demerol. Just prior to Christmas, 1984 Tovatt telephoned Dr. Garcia's office and attempted to make an appointment. After learning that Garcia's office hours were filled, Tovatt requested that Dr. Garcia make a house call to his apartment after 5:00 p.m. That same day, Dr. Garcia visited Tovatt's apartment and was told by Tovatt that he had a lot of pain in his lumbar spine and down his right leg. Without making any tests, obtaining a history, or inquiring about prior medical treatment, Dr. Garcia gave Tovatt an injection of demerol and a shot of valium. For this he charged Tovatt $600, or $300 per shot. Tovatt paid Dr. Garcia in cash. Garcia acknowledged that he knew Tovatt was addicted to demerol at that time. After the first house visit, Tovatt went to respondent's office the next day, and received two more shots for $150 each. When Tovatt complained that the visits were expensive, Dr. Garcia agreed to write Tovatt demerol prescriptions for $1,000 each. Dr. Garcia also insisted that only cash be used, and accordingly no checks were ever given to respondent. In addition, Dr. Garcia asked for and was given $25,000 cash for "one year's privilege of having him write a prescription." Approximately six weeks after the first office visit, Dr. Garcia conducted his first complete physical examination of Tovatt. However, he obtained a patient history from Tovatt during the first office visit on December 19, 1984. Even so, it was inadequate since it failed to contain any interpretations of the patient's history. On each visit he took Tovatt's blood pressure and checked his heart. Also, he noted in his patient records that the patient had "severe back pain, history of slipped disc of 30 years duration with arthritis following a fall. Had been using demerol for long periods of time for the above. He takes biroca, which is vitamin B, for the heart condition. He has had two heart attacks." For the next fourteen months or so, Tovatt continued to obtain one or two prescriptions per week from Dr. Garcia at a cost of $1,000 per prescription. The prescriptions generally contained 25 ampules of demerol per box. They were filled at various pharmacies in the Vero Beach and Melbourne areas. Copies of the prescription have been received in evidence as petitioner's exhibits 3-17 and a compilation is set forth in petitioner's exhibit 18. In all, there were 137 prescriptions for demerol, 15 for valium and 9 for percodan. Valium is a Schedule IV controlled substance while percodan is a Schedule II controlled substance. Finally, ten of those prescriptions had orders for demerol and valium on the same prescription while one had an order for demerol, percodan and valium. This was inappropriate. In addition to the above prescriptions, several times Tovatt purchased bottles or boxes of demerol directly from Dr. Garcia. Each bottle was the equivalent of twenty shots while a box had twenty-five ampules, or the equivalent of twenty-five shots. On one occasion he was charged $7,000 for one or two bottles, on another $9,000 for one box of 25 ampules, and $8,000 on another occasion for four boxes. Becoming concerned that Dr. Garcia would stop writing prescriptions, Tovatt purchased an air dehumidifier at a cost of $312.70 for Garcia's birthday. On several occasions Garcia suggested to Tovatt that he include Garcia as a beneficiary in his will. In Garcia's presence, Tovatt directed his attorney to prepare a codicil to his will and bequeath $75,000 to Dr. Garcia. This was executed on November 20, 1985. The codicil is still in effect. At Dr. Garcia's request, Tovatt gave respondent a copy of the codicil. Each time that Tovatt requested a prescription, Garcia provided him with one. Tovatt's injections numbered from five to six a day when he first began seeing Dr. Garcia, and numbered around fifty per week towards the end. Tovatt suffered side effects from the massive amounts of painkillers, including passing out on one occasion and being unable to move on another. He also lost an undisclosed amount of weight. In all, Tovatt paid Dr. Garcia approximately $200,000 in cash over a fourteen month period, which represented his entire life savings. He is now in the process of filing a malpractice suit against respondent. In early 1986 Tovatt obtained four final prescriptions for demerol from Dr. Garcia. When he found no drug store would honor them, he refused to pay Dr. Garcia. Dr. Garcia came to his apartment at least six times demanding payment for the same. Tovatt then mailed the unfilled prescriptions to a DPR investigator. In February, 1986 a DPR investigator interviewed Dr. Garcia concerning the Tovatt prescriptions. At that time Dr. Garcia acknowledged he had treated Tovatt and had charged him $1,000 per prescription for demerol. He also admitted this to his office receptionist. During the same interview, the investigator observed that Dr. Garcia's Drug Enforcement Agency (DEA) registration had expired on September 30, 1985. This was necessary in order to write certain prescriptions. Finally, when the administrative complaint in this case was issued in April, 1986 respondent told Tovatt "we're in trouble" and that Tovatt was "going to pay for my lawyer." Tovatt also filed a complaint with the City of Vero Beach Police Department in April, 1986. While a police officer tape recorded the call, Tovatt telephoned respondent on April 29 and requested a prescription of demerol. Since Tovatt still owed Garcia $4,000 for the four unfilled prescriptions, Dr. Garcia demanded payment of that sum. Tovatt said it would take time to raise the money. Tovatt then told Garcia he knew of a pharmacy in Cocoa Beach that would fill a prescription. Garcia said he didn't want to use Tovatt's name on the prescription, but agreed to use a fictitious name. Garcia also said he would require the usual amount, or $1,000, up front before he would give Tovatt the prescription. According to the uncontradicted testimony of a board certified family practitioner, Dr. Garcia should have taken a complete patient history on the first visit to Tovatt's apartment and at least "a cursory examination" of the patient. Because the patient complained of persistent pain, it would have been prudent to take additional tests and refer Tovatt to a neurologist or orthopedist after several visits. Garcia also had insufficient records to justify the course of treatment rendered, that is, the dispensing of various pain killers and sedatives. It was further inappropriate to prescribe addictive drugs to a patient in that quantity, combination and duration of time "for anything except a terminal illness." In this case, Tovatt did not have a terminal illness. In short, Dr. Garcia did not practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician would recognize as acceptable under similar conditions and circumstances. Finally, the fees charged by Dr. Garcia were clearly excessive and represented an exploitation of the patient for financial gain. Moreover, it is not customary in the medical community to charge a patient for writing a prescription. In December, 1985 a pharmacist in Vero Beach became concerned that Tovatt was filling an excessive number of prescriptions for demerol and percodan. He called Dr. Garcia who explained Tovatt had a back condition caused by a brain tumor and that Tovatt needed large amounts of painkillers until he received an operation in San Francisco. However, Tovatt's medical records contained no reference to a brain tumor or an operation/consultation in San Francisco. Until 1985 Dr. Garcia had no prior complaints filed against him by any person. Dr. Garcia portrayed Tovatt as a desperate man who he knew to be a drug addict. Although he contended he did not wish to treat Tovatt, he stated he did so only because Tovatt constantly approached him for drugs, and because he feared Tovatt might harm him. Dr. Garcia denied receiving excessive fees from Tovatt, and estimated he charged Tovatt only $20,000 while he was a patient. However, this version of events is not deemed to be credible and is accordingly discredited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all violations charged in Counts I-VII of the administrative complaint and that his medical license be REVOKED. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1490 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 4. Covered in findings of fact 3 and 4. Covered in finding of fact 5. Covered in finding of fact 3. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 15. Covered in finding of fact 7. Covered in finding of fact 15. Covered in finding of fact 15. Covered in finding of fact 15. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 9. Covered in finding of fact 11. Covered in finding of fact 13. Covered in finding of fact 16. Covered in finding of fact 16. Covered in finding of fact 15. Covered in finding of fact 15. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 13. Covered in findings of fact 8 and 15. Covered in finding of fact 15. COPIES FURNISHED: E. Raymond Shope, Jr., Esquire Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert L. Pegg, Esquire P. O. Box 1000 Vero Beach, Florida 32961 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy J. Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Respondent pharmacy, Drug Mart, Inc., of Lake Wales, doing business as Drug Mart, is a corporation holding community pharmacy permit number 0007122. The Respondent Gerald W. Gettel is a pharmacist licensed under the laws of the State of Florida, license number 0015091, whose last known address is 168 Poe Drive, Winter Haven, Florida 33890. Pursuant to Section 465.081, Florida Statutes, Gettel was employed as the pharmacy department manager at Drug Mart, Inc., of Lake Wales, 608 Lake Wales Plaza, Lake Wales, Florida 33853. On or about March 30, 1982, when inspected, the Respondents did not have on file Schedule II controlled substance prescriptions for the period of June 1980 through and including August 1980. If a hearing had been held in this case, Respondent Gettel would have testified that the destruction of the Schedule II controlled substance prescriptions mentioned above was unintentional . Gettel's testimony would have been supported by two witnesses whose affidavits are attached to this Recommended Order as Exhibits A and B. At a hearing, Gettel would have testified he could reproduce from computer records all of the dispensing information contained on the original prescriptions but admits it is accepted practice of pharmacists to maintain the original Schedule II controlled substance prescriptions for a period of two years. It is specifically stipulated that Schedule II controlled substance prescriptions are not subject to the exceptions provided by Section 893.07(4)(b), Florida Statutes. The responsibility for maintaining Schedule II controlled substance records is imposed upon the pharmacy manager (per the stipulation of the parties; however, the law is contrary). The permit holder, Drug Mart, Inc., of Lake Wales, is not directly responsible for the maintenance of said records. The Respondent Gettel notified the Drug Enforcement Administration of the destruction of the subject prescriptions. (See Exhibits C and D attached hereto.) At a hearing, Gettel would have stated that he also notified the Board of Pharmacy and would have introduced a letter and certified mail receipt relating to this notice to the Board. (See Exhibit E attached hereto.) If called to testify, the custodian of records of the Board of Pharmacy would state that the Board does not have a copy of the above-referenced letter (Exhibit E) in Respondent Gettel's file or in the Board's records of correspondence relating to lost or destroyed drugs or records. At a hearing, the Petitioner would offer no testimony contrary to the tendered testimony of Respondent Gettel and the referenced exhibits regarding the destruction of the subject records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondents be dismissed. DONE AND ENTERED this 3rd day of May, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Gerald W. Gettel 168 Poe Drive Winter Haven, Florida 33880 Drug Mart, Inc., of Lake Wales 608 Lake Wales Plaza Lake Wales, Florida 33853 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are whether Petitioner is liable to Respondent for Medicaid reimbursement overpayments, and if so, in what amount.
Findings Of Fact Respondent is the agency charged with administration of the Medicaid program in Florida pursuant to Section 409.907, Florida Statutes. Petitioner provides services to Medicaid beneficiaries under provider No. 1000098-00 pursuant to a contract with Respondent. Under the provider agreement dated March 31, 1997, Petitioner agreed to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks, and statements of policy. The contract also sets forth Petitioner's responsibilities to keep and maintain in a systematic and orderly manner all medical and Medicaid-related records, and to make them available for state and federal audits for five years. Heritage Information Systems, Inc. (Heritage) is and has been a pharmacy audit company since 1980. In 1999, Respondent contracted with Heritage to perform audits of pharmacies enrolled in the Florida Medicaid program. Respondent and Heritage subsequently created a list of violations to be investigated during an audit. The list is based upon provisions in the Florida Statutes and federal Medicaid policies and regulations. The purpose of the list is to guide Heritage in performing its duty during an audit. Heritage conducts its audits based on a standard methodology and protocol. During the course of an audit, Heritage examines a provider's records to determine whether a pharmacy is compliant with all rules and regulations that apply to the pharmacy. Heritage uses an established set of neutral criteria to select pharmacies for participation in an audit. Using these criteria, Heritage selected Petitioner as a candidate for audit. By letter dated January 17, 2000, Heritage advised Petitioner that it would be audited on January 26, 2000. The letter stated as follows in relevant part: The auditor(s) will require access to original hard-copy prescription records, third party signature logs, and, in some cases, pharmacy computer screens relating to a sample of prescription claims billed by your pharmacy between 12/25/1998 and 12/24/1999. Please note that the sample claim may actually be a refill of a prescription originally dispensed prior to the audit period. Because of this, we recommend that you also have the prior twelve months of prescription records available the day of the audit. For your reference, the audit terms are defined in your participating provider agreement and the prescribed drug services handbook. If you have any additional questions prior to the audit, please call Heritage Information Systems, Inc. . . . Between December 25, 1998, and December 24, 1999, Petitioner submitted claims and received payments from the Medicaid program for 7,065 claims. Using an industry standard software application, Heritage selected a random sample of 101 of Petitioner's claims to be analyzed during the audit. In performing the audit, Heritage utilized a methodology similar to that used by auditing agencies who examined Medicaid providers in previous years. During the audit, Heritage identified four areas of noncompliance for Petitioner. First, Heritage requested Petitioner's staff to produce hard-copy prescription records for the 101 sampled claims. Hard-copy prescriptions include those ordered and signed by a physician on a handwritten form and the records created by the pharmacists immediately after receiving verbal authorization from a physician by telephone. In this case, Petitioner could not produce hard-copy prescriptions for five claims. The second area of noncompliance involved unauthorized refills. In seven instances, Petitioner refilled prescriptions more times than the number authorized on the documented prescription. There were no notations on the hard-copy prescriptions or in the pharmacy computer to indicate that the doctors or someone from their office called to increase the number of authorized refills. The third area of noncompliance involved one instance in which Petitioner claimed payment for a "days supply value" that was inconsistent with the quantity and directions on the prescription. The prescription at issue was for sixty tablets with directions for the patient to take the drug once a day, constituting a sixty-day supply of medicine. Petitioner filled this prescription as a thirty-day supply and claimed Medicaid payment accordingly. Respondent did not include this violation in the calculation of overpayment. The fourth area of noncompliance involved a prescription that was refilled 30 days earlier than appropriate with respect to the quantity and directions for use that appeared on the prescription. This was the same prescription referenced above in paragraph twelve. After completing the audit, Heritage completed a final audit report. Said report documents the following: (a) 7,310 claims submitted by Petitioner; (b) $350,639.95 paid by Respondent for all claims; (c) 101 claims in total random sample; (d) $3,839.33 paid by Respondent for claims in total random sample; (e) 13 discrepant claims in random sample; $778.09 paid by Respondent for discrepant claims; 13 documented sanctions in random sample; (h) $724.91 paid by Respondent for documented sanctions in random sample; (i) $52,466.25 as the total calculated overpayment; and (j) $13,798.70 as the amount of the overpayment based on a 95 percent one-sided lower confidence limit. The final audit report also contained a listing of the violations discovered during the audit. The final audit report contained the following comments/notes in relevant part: Five prescriptions could not be found by auditors and could not be found by pharmacist Geiger and technician Daniels either. Many unauthorized refills were noticed. Pharmacy staff stated some information may be on the old computer system that was not functioning because of Y2K problems. Any authorization or documentation that was found on the computer system was accepted. Under cover of a letter dated March 2, 2000, Petitioner furnished Respondent with statements relative to the discrepant claims/documented sanctions signed by several physicians. All of the statements included the following: (a) statements that the doctors had prescribed the medication(s) for their patients; (b) the patient name; (c) the prescription number; (d) a print-out of a computer screen; and (e) opinions that Petitioner would not fill or refill prescriptions without authority and approval. None of these physicians testified at the hearing. By letter dated August 16, 2000, Respondent notified Petitioner of the determination of a Medicaid overpayment in the amount of $13,798.70. The greater weight of the evidence indicates that Petitioner received an overpayment in that amount or more.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner must timely pay Respondent $13,798.70 for Medicaid reimbursement overpayments from December 25, 1998, through December 24, 1999. DONE AND ENTERED this 30th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 30th day of January, 2001. COPIES FURNISHED: Melvin H. Fletcher, R.Ph. Corporate Representative Mayhugh Drugs, Inc. 200 South Orange Avenue Green Cove Springs, Florida 32043 L. William Porter, II, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact The Respondent, Walker L. Whaley, is a licensed physician in the State of Florida, having been issued license number ME 0025950. On February 7, 1984, Respondent was convicted, in the United States District Court for the Middle District of Florida, of conspiracy, to wit: Between at least on or about June 1982, and on or about April 7, 1983, Respondent did unlawfully, willfully, willingly, and intentionally combine, conspire, confederate and agree together with persons known or unknown to manufacture cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) Initially, Dr. Whaley was indicted on three counts. He was acquitted of two of the three counts appearing in the indictment against him. There was a mistrial because of the jury's inability to reach a verdict on the remaining count. He was ultimately convicted on the remaining count after a second trial. Respondent's criminal conviction is currently on direct appeal. The matters alleged in the indictment against Dr. Whaley pertain to alleged personal activities and were not alleged to have occurred as part of the conduct of his medical practice.
Recommendation Based upon the foregoing findings of fact and conclusions of law, and upon consideration of the exhibits presented by the parties, it is RECOMMENDED that the Board of Medical Examiners enter a final order finding Dr. Whaley guilty of the act set forth in Section 458.331(1)(c) and imposing the following penalty: suspension of Dr. Whaley's license for one year, followed by five years of probation subject to such conditions as the board may specify. It is further recommended, in accordance with the parties' stipulation, that the imposition of the penalty be stayed until the direct appeal of the criminal conviction has been decided and that, if the criminal conviction is reversed, this case be dismissed. DONE and ENTERED this 16th day of December, 1985, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of December, 1985. APPENDIX Petitioner's and Respondent's
The Issue The issues to be determined here concern disciplinary action to be taken against Respondent for those administrative offenses pertaining to the controlled substances Talwin, Dilaudid and Paregoric dispensed by Scottie Drug Store in Duval County, Florida, during the period April 2, 1981, to March 23, 1982, in violation of various provisions of Chapter 465, Florida Statutes. These contentions made by the State of Florida, Department of Professional Regulation, are more particularly described in the Administrative Complaint, DPR Case No. 0022147.
Findings Of Fact Howard E. Staats is a pharmacist who has been issued a license by the State of Florida, Department of Professional Regulation, Board of Pharmacy. The license number is 0007704. At times relevant to this proceeding, Staats practiced pharmacy in Jacksonville, Florida. At all times pertinent to the Administrative Complaint, which is the focus of this action, Staats was the managing pharmacist at American Apothecaries, Inc., which does business as Scottie Drug Store at 41 Arlington Road South, Jacksonville, Florida. A copy of Respondent's most recent license may be found as Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, admitted into evidence, is a copy of the permit for American Apothecaries. Sometime within the period March 23, 1982, through March 29, 1982, an audit was conducted at the Scottie Drug Store. The audit revealed that in the period April 2, 1981, through March 23, 1982, the drug store had purchased 66,900 tablets of Talwin, 50 mg., had sold 29,373 tablets of that drug, had lost by robbery or theft, 1,000 tablets of the drug, leaving 36,527 tablets of Talwin unaccounted for. During that same audit period, the pharmacy purchased 4,000 tablets of Dilaudid, 4 mg., selling 3,025 tablets of that drug, losing by robbery or theft, 200 tablets of the drug and failing to account for 775 tablets of the drug. Finally, during the audit period, 2,064 ounces of Paregoric had been purchased and 699 ounces sold, with the remaining amount of 1,285 ounces being unaccounted for. See Petitioner's Exhibit No. 4. Talwin is a Schedule IV controlled substance within the meaning of Chapter 893, Florida Statutes. Dilaudid is a Schedule II controlled substance within the meaning of Chapter 893, Florida Statutes. Paregoric is a Schedule III controlled substance within the meaning of Chapter 893, Florida Statutes. The audit which was conducted at the Scottie Drug Store revealed numerous prescriptions for the controlled substance Talwin, 50 mg., written on prescription blanks of Drs. W. W. Shell, Jr., and L. T. McCarthy, Jr., which had allegedly been signed by those physicians, when in fact the patients for whom the prescriptions were written were unknown to the physicians and the signatures of the physicians were forgeries. Those prescriptions are depicted in Petitioner's Exhibit No. 5, admitted into evidence. During the period covered by the audit, it was shown that Staats filled a number of prescriptions for various patients for the controlled substance Talwin, which had been written on prescription pads of Methodist Hospital and Baptist Medical Center in Jacksonville, Florida, and signed by individuals who are not physicians having hospital privileges at those medical centers nor practicing as physicians in the Duval County area. Copies of those prescriptions may be found as Petitioner's Exhibit No. 6, admitted into evidence. In the course of the time sequence related to the audit review process, it was discovered that Staats had refilled numerous prescriptions for controlled substances on more occasions than had been authorized by physicians, namely prescription No. 51632 was refilled twice although the physician indicated there were to be no refills; prescription No. 51579 was refilled once although the prescription indicated there should be no refills; prescription No. 51639 was refilled twice although the prescription indicated there should be no refills; prescription No. 51217 was refilled once although the prescription indicated there should be no refills; prescription No. 51238 was refilled once although the prescription indicated that there should be no refills; prescription No. 53010 was refilled once although the prescription indicated that there should be no refills; prescription No. 53597 was refilled four (4) times although the prescription indicated that it should only be refilled once; prescription No. 53537 was refilled once although the prescription indicated that it should not be refilled; and prescription No. 53592 was refilled twice although the prescription indicated that there should be no refills. Petitioner's Exhibit No. 7, admitted into evidence, is copies of prescriptions spoken to in this paragraph. Respondent Staats had operated the Scottie store under a lease arrangement during 1979 and 1980, and in January of 1981, took a position as an active pharmacist in that store. After becoming the principal operating pharmacist in the Scottie store, Staats began to receive prescriptions from doctors Shell and McCarthy for the substance Talwin and when a prescription purportedly written by those physicians was in question, Staats would call the office of the physicians for confirmation, which at times would be given over the phone and at other times an indication was made that a call back from the physician's office to Staats would be necessary. Some of the indications of physicians' prescription authority of the substances in question would be placed on a separate log and not on the back of the prescription and on other occasions, the note of the prescription information would be placed on the back of the prescription form and not in the log. Normally, this information would be reflected both in the log and on the back of the prescription. There were occasional circumstances in which the authority was not stated in either place. At approximately the same time as was covered by the audit, Staats began to ask for identification from customers who were seeking prescriptions for Talwin and noted that the demand for that substance declined with the advent of the request for identification. Staats posted a notice in the window of the pharmacy to the effect that state law imposed a fine of $5,000.00 or might cause incarceration for five (5) years for presenting forged prescriptions or conspiring or agreeing with another to have a forged prescription filled. On two (2) occasions Staats called law enforcement officials on a circumstance involving suspect prescriptions and those persons were apprehended. (Poor record keeping and mistakes in estimating the amount of losses due to a robbery and a larceny which occurred in the period covered by the audit contributed to the unaccounted for controlled substances, but those matters of record keeping and theft reports would cause only a slight differential in the disparity, as opposed to explaining the whereabouts of a substantial portion of the missing controlled substances.) Beginning on March 25, 1982, Staats began to keep a daily inventory log on the substance Talwin and a number of other controlled substances. A copy of that log may be found as Respondent's Exhibit No. 9, admitted into evidence. In addition, certain out-of-date and otherwise undesirable controlled substances, Schedules II, III and IV, have been removed from inventory and turned over to appropriate authorities for destruction.
