Findings Of Fact The allegations against Petitioner in the underlying proceeding were all connected with his use of Grenz Ray therapy, a safe, rapid, and painless procedure for the patient. It has been used for the treatment of benign skin diseases for more than sixty years. The National Academy of Sciences in 1980 affirmed the safety factor inherent in the use of Grenz Rays and strongly endorsed the concept that it remained the prerogative of the physician to use any form of therapy in which the benefits accruing to the patient from its use are considered to outweigh the risks inherent in its use. The American Academy of Dermatology at its 1991 annual meeting offered lectures and a symposium on the beneficial use of Grenz Ray therapy. Medical schools have taught dermatologists the beneficial use of Grenz Ray therapy for many decades. Many doctors use Grenz Ray therapy as a modality of treatment. Until the underlying proceeding arose, Dr. Altman's use of Grenz Ray therapy had never been questioned by any federal or state regulatory agency. Until the underlying proceeding arose, no claim for Grenz Ray therapy rendered by Dr. Altman had ever been declined by any third-party payor, and all claims submitted by him to the Department for Grenz Ray therapy had been paid for the two years that Dr. Altman had been participating as a provider in the Florida Medicaid Program prior to the Department's Emergency Termination Order. There is no statute or rule on either the federal or the state level which prohibits the use of Grenz Ray therapy. Moreover, the Department has no policy against the use of Grenz Ray therapy. Grenz Ray therapy as utilized by Dr. Altman is conservative. The Department offered no evidence in the underlying proceeding that Grenz Ray therapy as utilized by Dr. Altman is similar to utilizing the drug Thalidomide or causing exposure to asbestos, as alleged in the Department's Administrative Complaint. No patient has complained regarding the treatment provided to that patient by Dr. Altman. The investigation into Dr. Altman's use of Grenz Ray therapy was triggered by a computer search. The matter was then assigned to an investigator who had been employed by the Department for approximately one year who held herself out to have special training in radiation therapy as a certified oncology nurse. She based her investigation upon experts that began with the use of an expert personally known to her--her own dermatologist who also uses Grenz Ray therapy. Thereafter, one expert recommended another. At about the same time, she was investigating the use of Grenz Ray therapy by another dermatologist in the Broward County area, the same area in which Petitioner practices. Related to that investigation, the investigator was presented with articles strongly advocating the use of Grenz Ray therapy authored by yet another dermatologist utilizing Grenz Ray therapy in the Broward County area. At the same time, the investigator was also provided with information showing that training in Grenz Ray therapy was a requirement for completing a medical residency in dermatology. The investigator ignored those articles presented to her and failed to even speak to the author of the articles. On the other hand, the scientific studies, medical textbook chapters, and other medical articles relied upon by the investigator to show that Dr. Altman's use of Grenz Ray therapy was excessive, inferior, or inappropriate did not support that conclusion, but rather supported the opposite conclusion. The investigator did not understand that some of the articles she was reading related to higher levels of ionizing radiation than the ultra-soft Grenz Rays. Prior to initiating the Emergency Termination Order and the Administrative Complaint, the investigator never spoke to Dr. Altman concerning the services that he was providing. Instead, she went to Dr. Altman's office, advised him that Grenz Ray therapy was an outdated and antiquated modality, and picked up his medical records for the patients in question so that she could make copies of them to have them reviewed by her experts. Although she had no preconceived list of experts when she started her investigation, the investigator spoke to no practitioner who used Grenz Ray therapy on children and contacted no professional dermatologist associations regarding the use of Grenz Ray therapy by their members. Similarly, although her own dermatologist uses Grenz Ray therapy, the investigator "built a case" which alleged, essentially, that when Dr. Altman utilized Grenz Ray therapy, it was inappropriate. The investigator specifically made no attempt to contact any expert who would be favorable to Petitioner's use of Grenz Ray therapy. The investigator formed a mental impression that Petitioner's use of Grenz Ray therapy was inappropriate for children and excessive for adults when she reviewed the computer report of Dr. Altman's claims which had, up to that moment, been paid by the Department without question. Her investigation was thereafter dictated by her personal beliefs, and she ignored all evidence to the contrary. Based upon her investigation, the Department determined that it would take action. Although it could have simply terminated its contract with Petitioner without cause, it did not do so. Similarly, the Department did not request that Petitioner reimburse the Department for claims already paid by the Department. Rather, the Department issued an Emergency Termination Order followed by an Administrative Complaint seeking to terminate Dr. Altman from the Medicaid Program for five years and seeking to fine him the amount of $20,000. Although the Department was justified in conducting its investigation, it was not substantially justified at the time that the underlying action was initiated by the issuance of its Emergency Termination Order and Administrative Complaint.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Second Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Since 1999, Respondent has been licensed in the State of Florida as a health insurance agent. Pursuant to chapter 626, Florida Statutes, Petitioner Department of Financial Services has regulatory jurisdiction over licensed health insurance agents. The Events On or about December 12, 2006, Respondent was appointed as an agent with SunCoast Physicians Health Plan, Inc. ("SunCoast"), an insurer that offered Medicare Advantage HMO plans. Although Respondent was one of its appointed agents, he did not receive a salary from SunCoast, nor was he provided an office.1 In or around January 2007, Respondent was contacted by telephone by an individual——previously unknown to Respondent and whose name Respondent no longer recalls——who claimed that a local physician was interested in converting a number of consumers from other coverage to SunCoast. As the conversation progressed, it appeared to Respondent that the individual was presenting a legitimate business opportunity, as he mentioned the names of several of Respondent's acquaintances. At the conclusion of the call, Respondent agreed to meet the individual (and the individual's associate, whose name Respondent likewise does not remember) later that day at an office building at the intersection of Flagler Street and Fontainbleau Boulevard in Miami. Respondent proceeded to the agreed upon location and met with the two individuals, both of whom demonstrated substantial knowledge regarding SunCoast and its benefits. During the meeting, the two individuals advised that Dr. Abreau, a physician familiar to Respondent, desired to perform a membership conversion. As the discussion progressed, the individuals presented Respondent with approximately 30 enrollment applications for the SunCoast plan, all of which were blank with the exception of the pre-printed material. As a purported sign of "good faith,"2 the two individuals insisted that Respondent sign each of the forms on the signature line reserved for persons (e.g., agents or brokers) who assisted consumers in completing the application. Respondent ultimately agreed to do so——and to allow the unknown individuals, at their insistence, to temporarily retain the blank applications bearing his signature——with the understanding that he would return to the office the next morning, at which point Respondent would speak personally with Dr. Abreau and make arrangements to meet with the potential enrollees.3 On the following day, Respondent returned to the office building to continue with the transaction. Unable to find any trace of the two individuals, Respondent eventually located a custodian within the building, who advised that the office had been vacant for "a while." After repeated attempts over the next several days, Respondent was able to reach one of the unknown individuals by telephone, at which time Respondent was informed that the "deal was off" and that the enrollment forms would be mailed to him. Although Respondent never received the enrollment application as promised, he believed——based upon his prior experience in the industry that enrollment forms could only be submitted to an insurance company by the agent, i.e., Respondent——that the forms could not be misused and therefore no further action on his part was necessary. As such, Respondent never notified SunCoast that third parties were in possession of blank enrollment forms that bore his signature. Later during the month of January 2007, one or more unknown persons submitted approximately 30 enrollment forms (the same applications signed by Respondent) to SunCoast for processing. There is no record of who delivered the applications or by what means. Although SunCoast should have utilized the Centers for Medicare and Medicaid Services (CMS) computer database to confirm the accuracy of the personal information of each applicant that appeared on the forms, SunCoast did not do so. Had SunCoast performed such a verification, it would have discovered that the residential addresses for all of the applicants were incorrect——a clear sign that the applications were fraudulent. SunCoast processed the applications shortly thereafter, which resulted in unauthorized changes in health coverage for approximately 30 persons. In February 2007, Gabrial San Quintin was hired by SunCoast as its Director of Enrollment and Member Administration. Shortly thereafter, Mr. San Quintin discovered that an unusual number of SunCoast's mailings to its enrollees were being returned due to incorrect address information. Mr. San Quintin investigated the matter and ultimately determined that the January 2007 enrollment forms bearing Respondent's signature had not been authorized by the persons whose names appeared on the applications. However, neither Mr. San Quintin nor any other SunCoast employee notified Respondent of this information.4 In fact, Respondent credibly testified that he did not learn of the improperly submitted applications until approximately one year after his meeting with the unknown individuals. Although the approximately 30 applications processed by SunCoast in January 2007 had not been authorized by the enrollees, SunCoast continued to provide full insurance coverage until such time that the enrollees were switched back to their original coverage. During the final hearing, Petitioner presented the testimony of two of the individuals whose insurance coverage was improperly switched to SunCoast pursuant to applications bearing Respondent's signature: Digna Blanzaco and Rafael Alpizar. From the testimony of Ms. Blanzaco, it is apparent that she suffered no financial harm due to the unauthorized switch, nor was she denied any medical services. Likewise, there is no evidence that Mr. Alpizar suffered any physical harm or financial loss as a result of the improper change in coverage.5 In August 2007, SunCoast became insolvent and was subsequently liquidated. The undersigned credits Respondent's testimony that: he was not the person who submitted the applications to SunCoast in January 2007 and has no knowledge of who did so; he had no knowledge that the applications bearing his signature were going to be misused in any manner whatsoever, nor did he intend or desire for the applications to be misused; the reason he signed the forms and left them with the unknown individuals was because he believed it was necessary to do so in order to preserve what reasonably appeared to be a legitimate business opportunity; the January 2007 incident was the only occasion in which he left blank applications bearing his signature with third parties; and he received no remuneration as a result of the fraudulently submitted applications. The undersigned also finds, based upon the evidence adduced during the final hearing, that Respondent acted in good faith at all times in connection with the SunCoast applications. Ultimate Findings of Fact Petitioner has failed to prove by clear and convincing evidence that Respondent has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance. Petitioner has failed to adduce clear and convincing evidence that Respondent has demonstrated the lack of reasonably adequate knowledge and technical competence to engage in insurance transactions. Petitioner failed to present clear and convincing evidence that Respondent engaged in unfair or deceptive acts or practices, as defined and prohibited by Part IX of Chapter 626, Florida Statutes, or has otherwise shown himself to be a source of injury or loss to the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter an order dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 2nd day of September, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 2nd day of September, 2011.
Findings Of Fact Respondent, Stella Mae Browning Brumley, has been a registered nurse in Florida since 1954 and worked at the Sunland Development Center in Ft. Myers for approximately 10 years before she was dismissed in June, 1975 by the hospital authorities. During the period March-May, 1975 Mrs. Brumley entered on the clinic log that she had administered tannic acid, 20 percent solution, to approximately 14 "clients of the center who had suffered minor cuts, abrasions etc. At the time this medication was administered the standing orders did not provide for use of this medication and there was no doctor's order for this treatment to be given to any of the "clients" so treated. Tannic acid was supplied to the medicine cabinets in each of the cottages where the clients reside and was available for use by the "parents" although all of the Petitioner's witnesses testified that a doctor's order was required before thee use of tannic acid was authorized. Dr. Murray, present Medical Director at Sunland, introduced the use of tannic acid at Sunland but never put it on the standing orders. He considers tannic acid to be an effective medication for minor abrasions. There are standing orders for treating minor skin irritations and rash but there is nothing in the standing orders providing specifically for treatment of abrasions (TR p 44, 47). Webster's New Collegiate Dictionary shows another sense of the word, abrasion, to be irritation. Cottage parents generally considered that medications made available in the medicine cabinets and not kept locked, such as tannic acid, were there for use in first aid treatment, and frequently used same assuming it was authorized by standing orders. On or about February 27, 1975, Manuel Horton, a client at Sunland received ant bites which resulted in his being taken to the clinic. The doctor ordered treatment with furacil and entered same on clinic chart. No copy of the orders or the medication was sent to the cottage. Later that evening Respondent was called to the cottage to administer to Horton. He had scratched himself in several places deeply enough to draw blood. After ascertaining that no record of treatment ordered was in the cottage Mrs. Brumley called the nurse'supervisor on duty in the clinic to discuss treatment but she did not go across the road to the clinic to look at the clinic chart. Mrs. Miller, the supervisor on duty in the clinic, was partially supervisor of the cottage nurses and Mrs. Brumley testified she considered Mrs. Miller to be so because she was a grade higher. Mrs. Miller advised that she had caladryl available if someone could come for it. Mrs. Brumley testified that calomine was received and Horton was treated with calomine. She entered on his chart that he was treated with caladryl. Furasin, which was ordered by the doctor, is an antibiotic while caladryl, a combination of benedryl and calamine, is an antihistimatic. During a period when pin worms were prevalent Povan was ordered administered to all employees as well as the clients. In the initial planning stages Mrs. Brumley was asked to administer the treatment in the cottages in the evening but she demurred. Later it was decided that the treatment would be given only during the day hours. Mrs. Brumley understood the time limitation on treatment during day hours applied only to the children and on the evening of April 15, 16, and 17 she administered Povan to employees in the cottages. On February 14, 1975 Kenneth Skogland and Linda Sallak, clients at Sunland, were administered Visteril by Respondent Brumley. At the time Thorozine was the authorized sedative when a child became unruly. No doctor's orders for substitution of Visteril for Thorozine was entered. Respondent contends that during a conversation with Dr. Murray he suggested the substitution of Visteril for Thorozine and she considered that to be authorization for the substitution. Visteril is both an antihistamine and a sedative. Dr. Miller denied he ever said that Visteril could be substituted for Thorozine. In March, 1972 Respondent entered on the medical records that bread, butter, and cotton was administered to a patient who had swallowed pins. At the hearing Mrs. Brumley acknowledged that she had administered the cotton sandwich but its use had been authorized by a doctor at Sunland who is now deceased. No record of such an order was found. Mrs. Brumley's testimony that she and the prescribing doctor had discussed the cotton sandwich with the Medical Director at the time gas disputed by the Medical Director at the hearing. He had no recollection of such conversation although he recalled the incident where the patient was so treated. No adverse effects resulted from this treatment and the pins were eliminated by the patient without surgery being required.
