The Issue Whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. In or around 2002, Petitioner issued Respondent a restricted medical license that was thereafter converted, on June 19, 2004, to an unrestricted license to practice medicine in the State of Florida (number ME 90680). Instant Allegations On May 22, 2008, Respondent was indicted in the United States District Court for the Southern District of Florida with nine criminal charges, all but one of which were ultimately dismissed. Count Two of the indictment——to which a guilty plea was later entered——alleged that Respondent, in violation of 18 § 1349, conspired with a fellow physician to commit health care fraud, an offense prohibited by 18 U.S.C. § 1347. In relevant part, Count Two provided: COUNT 2 Conspiracy to Commit Health Care Fraud (18 U.S.C. § 1349) Paragraphs 1 through 9 of the General Allegations section of this Indictment are realleged and incorporated by reference as though fully set forth herein. From in or around November 2002, through in or around April 2004. . . the defendants, CARLOS CONTRERAS and RAMON PICHARDO, did knowingly and willfully combine, conspire, confederate and agree with others, known and unknown to the Grand Jury, to violate Title 18, Untied States Code, Section 1347, that is, to execute a scheme and artifice to defraud a health care benefit program . . . by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, said health care benefit program, in connection with the delivery of and payment for health care benefits, items, and services. PURPOSE OF THE CONSPIRACY It was a purpose of the conspiracy for CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators to unlawfully enrich themselves by, among other things, (a) submitting false and fraudulent claims to Medicare; (b) offering and paying cash kickbacks and bribes to Medicare beneficiaries for the purpose of such beneficiaries arranging for the use of their Medicare beneficiary numbers by the conspirators as the bases of claims filed for HIV infusion therapy; (c) concealing the submission of false and fraudulent claims to Medicare, the receipt and transfer of the proceeds from the fraud, the payment of kickbacks; and (d) diverting proceeds of the fraud for the personal use and benefit of the defendants and their co-conspirators. MANNER AND MEANS The allegations in paragraphs 4 through 10 of the Manner and Means Section of Count 1 of this Indictment are incorporated as though fully set forth herein as a description of the Manner and Means of this conspiracy. All in violation of Title 18, United States Code, Section 1349. (emphasis added). As indicated above, Count Two of the indictment incorporated the general allegations contained in paragraphs one through nine of the charging instrument, as well as paragraphs four through ten of the "Manner and Means" section of Count One. Those incorporated paragraphs alleged, in relevant part: General Allegations At all times relevant to this Indictment: The Medicare Program was a federal health care program providing benefits to persons who were over the age of 65 or disabled. Medicare was administered by the Centers for Medicare and Medicaid Services ("CMS") . . . . Medicare was a "health care benefit program," as defined by Title 18, United States Code, Section 24(b). "Part B" of the Medicare program paid Medicare providers and suppliers for covered goods and services, including medically necessary Human Immunodeficiency Virus ("HIV") infusion therapy, that were provided and ordered by physicians, clinics, and other qualified health care providers. . . . Payments under the Medicare program were often made directly to a provider of the goods or services, rather than the beneficiary. This occurred when the provider accepted assignment of the right to payment from the beneficiary. In that case, the provider submitted the claim to Medicare for payment, either directly or through a billing company. Physicians, clinics, and other health care providers that provided services to Medicare beneficiaries were able to apply for and obtain a "provider number." A health care provider who was issued a Medicare provider number was able to file claims . . . to obtain reimbursement for services provided to beneficiaries. . . . C.N.C. Medical Corp. ("CNC Medical") was a Florida corporation, purportedly doing business . . . [in] Miami, Florida. . . . CNC Medical was a medical clinic that purported to specialize in treating patients with HIV by providing infusion therapy. From in or around November 2002 through in or around April 2004, approximately $6.8 million in claims were submitted to the Medicare program for HIV infusion services allegedly rendered at CNC Medical. Defendant Contreras, a resident of Miami-Dade County, was a medical doctor who purported to order and provide HIV infusion services to Medicare beneficiaries at CNC Medical. Contreras was also the president, director, and registered agent of CNC Medical. Defendant RAMON PICHARDO, a resident of Miami-Dade County, was a medical doctor who purported to order and provide HIV infusion services to Medicare beneficiaries at CNC Medical. From in or around November 2002 through April 2004, CNC Medical submitted claims to Medicare under the provider number of [Respondent's co-defendant], which was 03813. * * * MANNER AND MEANS The manner and means by which Carlos Contreras, Ramon Pichardo, and their co- conspirators . . . sought to accomplish the objects and purpose of the conspiracy included, among other things as follows: CARLOS CONTRERAS would cause the establishment and incorporation of CNC Medical in the State of Florida and serve as president, director, and registered agent of CNC Medical. CARLOS CONTRERAS would work as a physician at CNC Medical, and be an authorized signer on the CNC Medical bank accounts. RAMON PICHARDO would work as a physician at CNC Medical. CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators . . . would cause unnecessary tests to be ordered, medical forms to be signed, and treatments to be authorized to make it appear that legitimate services were being provided to Medicare beneficiaries at CNC Medical. CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators . . . would cause the payment of cash kickbacks to Medicare beneficiaries in exchange for the patients signing documents at CNC Medical stating that they had received the treatments that were billed to Medicare, when those treatments were not provided and were not medically necessary. CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators . . . would cause the submission of approximately $6.8 million in claims to the Medicare program under the provider number of CNC Medical, for services that were never provided and services that were not medically necessary. After reimbursements from Medicare were deposited into CNC Medical's bank accounts, CARLOS CONTRERAS and his co-conspirators . . . would cause to transfer approximately $1.7 million to sham management, marketing and investment companies owned and operated by their co-conspirators, and approximately $244,000 to other fraudulent HIV infusion clinics owned and operated by their co- conspirators. On or about September 11, 2008, Respondent entered into a plea bargain whereby he agreed to plead guilty to Count Two of the indictment; in return, the government agreed to dismiss Respondent's 11 remaining charges at the conclusion of the sentencing process. Attached to the written plea agreement is a two-page statement signed by Respondent that, by its terms, was made "knowingly and voluntarily and because [Respondent is] in fact guilty of the crimes charged." Consistent with the allegations contained in the indictment, Respondent admitted credibly in the statement, among other things, that he: willfully conspired to commit health care fraud with Dr. Contreras and other individuals; approved costly and medically unnecessary HIV infusion treatments in furtherance of the conspiracy; signed documents that contained false information about treatments purportedly provided to beneficiaries; and approved, in conjunction with Dr. Contreras, fraudulent medical bills totaling approximately $6.8 million. Finally, Respondent acknowledges in the statement that approximately $4.2 million in fraudulent claims were ultimately paid to CNC Medical by the Medicare Program. Subsequently, on November 20, 2008, was adjudicated guilty of Count Two of the indictment and sentenced to a 48- month prison term, to be followed by three years of supervised release. In addition, Respondent was ordered to pay restitution in the amount of $4.2 million.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Finding that Respondent violated section 458.331(1)(c), Florida Statutes, as charged in Count One of the Complaint; Revoking Respondent's license to practice medicine; and Imposing a fine of $10,000. DONE AND ENTERED this 25th day of January, 2013, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2013.
