The Issue The basic issue in this case is whether the Petitioner is entitled to a waiver of the limitations in the state group health self insurance plan regarding pre-existing conditions during the first 12 months of coverage under the plan.
Findings Of Fact Based on the stipulations of the parties, on the testimony presented at the hearing, and on the exhibits received in evidence, I make the following findings of fact. The Petitioner was first employed by the Department of Transportation as a Clerk Typist Specialist on October 31, 1986. As a new employee, the Petitioner was entitled to select health insurance under the state group health self insurance plan or with a participating health maintenance organization (HMO). The state group health self insurance plan and the HMO's each have different benefits and premiums. The Petitioner's direct supervisor is Ms. Gwen Molander. On October 30, 1986, the day prior to her first day of employment, the Petitioner met with her supervisor to sign the employment paperwork. On that day Ms. Molander called the Department of Transportation personnel office in Lake City for the purpose of finding out whether the state group health self insurance plan would cover pre-existing allergy conditions of the Petitioner's son. Ms. Molander specifically asked the Lake City personnel office if the plan would cover the Petitioner's son if the son was under the care of an allergist. The words "pre- existing condition" were not used in the conversation Ms. Molander had with the Lake City personnel office. The Lake City personnel office told Ms. Molander that the Petitioner's son would be covered even if it was not an open enrollment period. The Petitioner authorized a "double-up" deduction so the health insurance would be effective as of December 1, 1986. The Petitioner's son has been covered as a dependent under the Petitioner's health insurance since December 1, 1986. Based on the information from the Lake City personnel office, the Petitioner believed that the state group health self insurance plan would provide coverage for all of her son's medical expenses without any limitation regarding pre-existing conditions. The Petitioner's son had a pre-existing allergy condition for which he received medical treatment in December of 1986 and thereafter. Since December of 1986 the Petitioner has incurred medical bills of approximately $2,000.00 for treatment related to her son's pre-existing allergy condition. The state group health self insurance plan has refused to pay any of the medical expenses related to the treatment of the pre-existing allergy condition of the Petitioner's son. The state group health self insurance plan contains a provision to the effect that "no payment shall be made for pre- existing conditions during the first 12 months of coverage under the Plan." Accordingly, the refusal to pay described above is consistent with the provisions of the state group health self insurance plan. At the time the Petitioner chose to enroll in the state group health self insurance plan, she could also have chosen any of three HMO programs available to state employees in he Gainesville area. Petitioner chose the state group health self insurance plan because of her belief that it provided coverage for her son's pre-existing allergy condition. There is no competent substantial evidence in the record in this case regarding the coverage provided by the three available HMO's, the limitations (if any) on the coverage, or the cost to the employee of such coverage. At the time the Petitioner chose to enroll in the state group health self insurance plan, her employing office did not have any written information regarding the health insurance options available to new employees. There is no evidence that the Petitioner attempted to obtain information regarding health insurance options from any source other than her direct supervisor and the Lake City personnel office. On the insurance enrollment form signed by the Petitioner, dated October 31, 1986, the Petitioner was put on notice and acknowledged that coverage and the effective dates of coverage under the state group health self insurance plan were governed by Rule Chapter 22K-1, Parts I and II, Florida Administrative Code, and by the plan benefit document, "regard-less of any statements or representations made to me. " The Petitioner has previously worked in the insurance field and she is familiar with limitations on coverage for pre-existing conditions.
Recommendation On the basis of all of the foregoing, it is recommended that the Department of Administration issue a final order in this case denying the relief requested by the Petitioner and dismissing the petition in this case. DONE AND ENTERED this 29th day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH 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 29th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1485 The following are my specific rulings on the proposed findings of fact submitted by both parties: Proposed findings submitted by Petitioner As noted in the introductory portion of the recommended order in this case, the Petitioner's post-hearing submission consists of a letter dated May 12, 1987. Although the letter does not contain any statements which are identified as proposed findings of fact, in light of the lesson taught by Kinast v. Department of Professional Regulation, 458 So.2d 1159 (Fla. 1st DCA 1984), all factual assertions in the letter of May 12, 1987, have been treated as though they were proposed findings of fact. The references which follow are to the unnumbered paragraphs and sentences of the letter of May 12, 1987. First unnumbered paragraph: This is an introductory comment only. Second unnumbered paragraph: First sentence is rejected as a proposed finding because not supported by evidence in the record. Second sentence is a statement of position rather than a proposed finding. Third sentence is rejected as a proposed finding because not supported by evidence in the record. Fourth sentence is a statement of the relief requested rather than a proposed finding. Fifth sentence is rejected as a proposed finding because it is inconsistent with the greater weight of the evidence. Third unnumbered paragraph: This entire paragraph is rejected as proposed findings because it consists of statement of position and argument rather than proposed facts. Proposed findings submitted by Respondent The Respondent's proposed findings of fact are contained in twelve numbered paragraphs in Respondent's proposed recommended order. The paragraph references which follow are to each of those twelve paragraphs. Paragraph 1: Accepted. Paragraph 2: First sentence accepted. Second sentence is rejected in part and accepted in part; first ten words are rejected as not supported by competent substantial evidence in the record. The remainder of the sentence is accepted. Paragraph 3: Accepted. Paragraph 4: Accepted in substance with correction of confused dates and deletion of irrelevant details. Paragraph 5: Accepted. Paragraph 6: Accepted in substance. Paragraph 7: Accepted in substance. Paragraph 8: Accepted in substance. Paragraph 9: First sentence accepted in substance. Second sentence rejected as not supported by competent substantial evidence. Paragraph 10: Accepted in substance. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as irrelevant due to the fact that no such literature was available at Petitioner's employing office. COPIES FURNISHED: Ms. Juanita L. Resmondo Department of Transportation Maintenance Office Post Office Box 1109 Gainesville, Florida 32602 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondents violated various provisions of the Florida Insurance Code, and, if so, what disciplinary action should be taken against them, if any.
Findings Of Fact At all times material hereto, Respondent The Administrators Corporation (hereinafter "TAC") has been an authorized administrator, and Respondent Charles N. Zalis (hereinafter "Zalis") has been licensed or eligible for licensure as a life insurance agent, a life and health insurance agent, and a legal expense insurance sales representative in the State of Florida. Zalis is the chief executive officer of TAC. TAC is not licensed in Florida as an insurer. An authorized administrator in Florida may engage in the solicitation, negotiation, transaction and/or sale of insurance in Florida if such activity takes place pursuant to an agreement between the authorized administrator and an authorized insurer. Life and Health Insurance Company of America (hereinafter "Life & Health"), which is not a party to this administrative proceeding, is an authorized insurer in Florida. On April 13, 1988, TAC entered into a contract with Life & Health to market and service group health insurance. The term of that contract was for four years and one month. Life & Health attempted to terminate its Administrator Agreement with TAC by letter dated March 16, 1989, effective immediately. The date on which the responsibilities under that Administrator Agreement terminated, if ever, is an issue in dispute between Life & Health and TAC. The Department takes no position on that issue. That issue is the subject of a civil lawsuit filed in Broward County, between Life & Health and TAC, which is currently being litigated. Although Life & Health's original position was that the contract between it and TAC terminated as of March 16, 1989, that position apparently changed because Life & Health continued paying claims up to July 1, 1989. TAC's position was that Life & Health's responsibilities under that contract did not terminate until September 26, 1989, when George Washington, an authorized group health insurance carrier in Florida, agreed to assume the risk for the block of business retroactive to July 1, 1989. TAC could have obtained a replacement carrier earlier than September 26, 1989, if the Department had advised TAC and Zalis as to the procedure involved to allow Summit Homes, an authorized property and casualty insurer, to broaden the scope of its certificate of authority to include group health insurance. The simple procedure could have been accomplished in as little as 24 to 48 hours. A group health insurance carrier remains on the risk to its policyholders until there has been a valid cancellation or termination of that coverage. In the pending Circuit Court litigation between Life & Health and TAC, the validity of the termination or cancellation and the date of same are ultimate issues in that law suit and have not yet been determined by the Court. On March 27, 1989, Life & Health sent a letter to agents informing them of its termination of its relationship with TAC and that it would not accept any new business written after March 16, 1989. The evidence in this cause, however, indicates that Life & Health did continue to accept new business after that date. The Department became aware of the dispute between Life & Health and TAC on June 8, 1989. The Department knew as of July 12, 1989, that TAC was continuing to write business on Life & Health "paper." At some point after the attempted March 16, 1989, termination of the contract by Life & Health, TAC and Life & Health informally agreed to a July 1, 1989, date after which Life & Health would no longer be responsible for any claims and TAC would have a replacement insurer in place to take over the block of business. That agreement was based upon TAC and Life & Health each agreeing to cooperate with each other and to take certain actions to facilitate the transfer of the book of business. Both the Department and the Circuit Court were aware of the informal agreement whereby Life & Health agreed to remain on the risk for the block of business at least through July 1, 1989, and Zalis and TAC would issue no further policies on Life & Health "paper" and would not remain involved in the processing or payment of claims after July 1, 1989. Prior to July 12, 1989, those matters required to take place in connection with the July 1, 1989, "cutoff" date had not been accomplished, and Zalis and TAC continued writing new business on Life & Health "paper" believing that Life & Health was still legally responsible. Zalis informed the Department's investigator on July 12, 1989, that he was writing and that he intended to continue to write new business on Life & Health "paper." No evidence was presented to show that the Department notified Zalis or TAC that they could not do so, and the Department took no action to stop that activity. Additionally, Life & Health took no action to enjoin TAC or Zalis from writing new business on Life & Health "paper." The evidence does suggest that Life & Health may have continued to accept the benefits and liabilities. The premiums for policies written by TAC on Life & Health "paper" after July 1, 1989, were not forwarded to Life & Health; rather, they were retained by TAC in a trust account. Zalis and TAC offered to deposit those monies with the Circuit Court in which the litigation between TAC and Life & Health was pending or to transmit those monies to the Department to insure that the monies would be available for the payment of claims. Pursuant to an agreement with the Department, the monies representing those premium payments were transmitted to the Department On September 26, 1989, George Washington Insurance Company, an authorized health insurance company in the State of Florida, agreed to take over the block of business from Life & Health, retroactive to July 1, 1989. Life & Health, however, had not yet signed the assumption agreement to transfer its responsibility to George Washington Insurance Company as of the time of the final hearing in this cause. TAC and Zalis did not place any Florida insurance business with any companies not authorized to do business in Florida. Respondent Zalis has been in the insurance business for 26 years and enjoys a good reputation for honesty and integrity. Zalis and TAC have never had prior administrative action taken against them. As of the date of the final hearing in this matter, there had been no Circuit Court determination of the effectiveness or ineffectiveness of Life & Health's termination of the Administrators Agreement nor of the date of that termination, if any.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty of the allegations contained in the Order to Show Cause and dismissing the Order to Show Cause filed against them. DONE and ENTERED this 9th day of July, 1990, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-5981 Petitioner's proposed findings of fact numbered 1-3, 6-9, 14-17, 20, 21, and 25-27 have been adopted either in substance or verbatim in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Petitioner's proposed findings of fact numbered 10, 11, 13, and 22 have been rejected as being unnecessary for determination of the issues in this cause. Petitioner's proposed findings of fact numbered 12 and 19 have been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed findings of fact numbered 18, 23, and 24 have been rejected as not being supported by the weight of the evidence in this cause. Respondents' proposed findings of fact numbered 1-17 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Peter D. Ostreich, Esquire Office of Treasurer and Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Jerome H. Shevin, Esquire Wallace, Engels, Pertnoy, Martin, & Solowsky, P.A. CenTrust Financial Center 21st Floor 100 Southeast 2nd Street Miami, Florida 33131 William M. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue An administrative complaint dated April 4, 1994, alleges in a single count that Respondent, Edward Aloysius Garvey, violated various provisions of Chapter 626, F.S. by failing to reveal a proposed insured's pre-existing medical condition on an application for group health insurance. The issue in this proceeding is whether the violations occurred and if so, what license discipline is appropriate.
Findings Of Fact At all times relevant to these proceedings, Respondent, Edward Aloysius Garvey, was licensed as a life insurance agent, a life and health insurance agent, health insurance agent and dental care contract salesman. On or about May 2, 1993, Mr. Garvey wrote an insurance application for group health insurance coverage for Patrica Foutt, of Palm Bay, Florida. Ms. Foutt was a new employee of Florida Diagnostic Imagery. The coverage was to have been provided by Fidelity Security Life Insurance Company. Because Florida Diagnostic Imagery changed group insurers several times, May 2, 1993, was one of several visits Mr. Garvey made to assist with enrollment of the employees. The enrollment and completion of applications took place in a small kitchen-like break room. Employees were in and out of the room. The enrollment forms were mostly completed by Mr. Garvey. He asked the questions and filled in the blanks with responses given by the employees. There is a section of the application form involving a series of medical conditions. The form requires a yes or no check mark, and an explanation for any "yes" response. One of the medical conditions in the series is disease or disorder of the heart or circulatory system; there also is a question of whether the applicant received any treatment, surgery, consultation or advice (including prescriptions) for any conditions within the last 10 years. Patrica Foutt's application form reflects a "yes" answer only for the latter question. On the space provided for explanation is this language: "1988 - Last check-up. Dr. Thomas Rose [and his address]. Excellent health-no problems". Mrs. Foutt signed the application beneath this language: I represent that the above statement and answers are true and complete. Also, I under- stand that no Agent, Broker or Representative has authority to bind coverage and no insurance will become effective unless approved in writing by the Company. I understand that no agent, broker or representative is allowed to permit me to answer any question inaccurately or untruthfully and I represent that such did not occur. I further understand that any material omission or medical information or material misrepresentation can result in rescission of coverage. I understand that any condition which was diagnosed or treated within the twelve (12) month period to the effective date of insurance will not be covered until the insurance has been in effect for twenty-four (24) months. Ms. Foutt has and, at the time the application was completed, had mitral valve prolapse. She claims she told Mr. Garvey that she had seen a cardiologist for this condition, but that Mr. Garvey said it was not significant enough to put on the form. Mr. Garvey denies that he was told about the condition. After the application was taken, the company issued a policy to Ms. Foutt. She later went to see Dr. Rose again with some chest pain and a little palpitations. After she filed a claim on her policy, the policy was rescinded. Sondra Henry was also employed at Florida Diagnostic Imagery in 1991. She was in the small room filling out her own application when she overheard Mr. Garvey's and Ms. Foutt's exchanges. She "believe[s] Ms. Foutt told Mr. Garvey that she suffered from micro valve prolapse and asked if it mattered". According to Ms. Henry, he replied "no, because it [was] a benign condition". (transcript pp 22-23) No evidence whatsoever was presented on micro valve prolapse, also referred to as "MVP". Nor was any competent evidence presented on why Ms. Foutt's claim was denied and her policy cancelled. Both Ms. Foutt and Mr. Garvey were earnest, credible witnesses. Ms. Foutt claims she told Mr. Garvey about her micro valve prolapse; he does not remember that she told him and feels that if she had, he would have either noted it or checked with the underwriter. At the hearing, Ms. Foutt insisted that she gave correct responses to all of the questions on the application, and that she is in "excellent health" as noted on the form and has "no problems". (transcript p. 14) It is impossible to find that one person or the other is untruthful; it is more likely that there was a misunderstanding by one person or another. Without evidence of the nature and seriousness of micro valve prolapse, it is impossible to weigh Ms. Foutt's claim of "no problems" or to assess how that response should have affected Mr. Garvey's completion of her application. No evidence was presented of prior misdeeds by Mr. Garvey. Two business owners for whose employees he has acted as agent for eight to ten years have never had any problems with Mr. Garvey's insurance representation.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Insurance enter a final order dismissing the complaint against Respondent, Edward Aloysius Garvey. DONE AND RECOMMENDED this 13th day of January, 1995, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1995. APPENDIX The following constitute my specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Rejected as unsupported by clear and convincing evidence. Adopted in substance in paragraph 9; however, Ms. Henry's testimony was equivocal as she says she "believes" she overheard the question and response. Rejected as unsupported by competent evidence. Rejected as argument and unnecessary; while the first sentence is accurate, it is immaterial here since Petitioner failed to prove that the misrepresentation occurred. Respondent's Proposed Findings Respondent's proposed findings are substantially adopted here, except for paragraphs 5 through 7. While it was not clearly established that Ms. Foutt did not properly inform Mr. Garvey, it was not his burden to prove that she did not. If she did tell him of her condition, there was likely misunderstanding. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner, Esquire Acting General Counsel Department of Insurance The Capitol, PL 11 Tallahassee, FL 32399-0300 Lisa S. Santucci, Esquire Dept. of Insurance & Treasurer 612 Larson Building Tallahassee, FL 32399-0333 J. C. Murphy, Esquire 1901 S. Harbor City Blvd., Ste. 805 Melbourne, FL 32901
Findings Of Fact Respondent has been licensed by Petitioner as a physician in the State of Florida and has, at all times pertinent to this proceeding, held license number ME0030090. Andy Moya, a law enforcement investigator with the Division of Insurance Fraud of the Florida Department of Insurance, conducted an investigation of Respondent's billings to insurance companies. As a result of this investigation, Mr. Moya executed a probable cause affidavit that led to Respondent's arrest on multiple counts, including four counts of grand theft. Grand theft is a third degree felony. On June 12, 1991, Respondent was arrested pursuant to the arrest warrant that had been obtained by Mr. Moya. On October 8, 1991, Respondent freely and voluntarily entered a plea of nolo contendre to four counts of grand theft. The presiding circuit judge accepted Respondent's plea of nolo contendre, withheld adjudication of guilt, placed the Respondent on probation for a period of five years, and ordered Respondent to pay the Department of Insurance the sum of $1,000.00 and the State Attorney's office the sum of $750.00. A condition of Respondent's probation was that under no circumstances could he bill insurance companies for services he performed. All billings to insurance companies would have to be done by someone over whom Respondent had no control. A plea of nolo contendre to four counts of grand theft for billing insurance carriers for services not rendered is directly related to the practice of medicine. The following facts underlie the criminal charges to which Respondent entered a plea of nolo contendre. PATIENT #1 AND PATIENT #2 Patient #1 and #2 were in a car accident in Hialeah, Florida, and subsequently were referred to Respondent by attorney Richard H. Reynolds. Respondent billed U.S. Security Insurance Company, Inc., a total of $1,995.00 for treating Patient #1 on 41 different dates from January 17, 1990, through May 2, 1990. Patient #1 later testified that she had been treated by Respondent on no more than ten different dates. Respondent assigned to Patient #1 a disability rating of five to six percent permanent/partial impairment. Patient #1 later denied under oath that any disability resulted because of the accident. Respondent billed U.S. Security Insurance Company, Inc., a total of $2,195.00 for treating Patient #2 on 46 different dates from January 17, 1990, through May 7, 1990. Patient #2 later testified that she had been treated by Respondent on no more than ten different dates. Respondent assigned to Patient #2 a disability rating of five to six percent permanent/partial impairment. Patient #2 later denied under oath that any disability resulted because of the accident. On October 25, 1990, Respondent authenticated his medical records and billings on Patient #1 and Patient #2 and affirmed to Mr. Moya that these documents were correct. Respondent's medical records and billings for Patient #1 and Patient #2 were fraudulent. PATIENT #3 On July 13, 1990, Patient #3 was in a car accident. On July 27, 1990, an attorney referred Patient #3 to Respondent. Several days after July 27, 1990, Patient #3 visited Respondent (or any other doctor following the accident) for the first time. Respondent subsequently billed U.S. Security Insurance, Inc., for services rendered to Patient #3 on July 20, 23, 25, and 27, 1990. These billings, in the approximate amount of $300.00, were fraudulent in that they were for services purportedly rendered on dates before Respondent first saw this patient. PATIENT #4 Respondent billed Allstate Insurance Company for services that Respondent purportedly rendered to Patient #4 as follows: office visit on June 26, 1990, and physiotherapy treatments on June 26, 28, and 29, and July 3, 5, 6, and 9, 1990. These billings were fraudulent in that Patient #4 was hospitalized at Coral Gables Hospital from June 26, 1990, to July 11, 1990. Respondent did not provide the services for which he billed Allstate Insurance Company during June and July 1990. On February 6, 1991, Respondent signed an affidavit that provided, in pertinent part, as follows: I have read the attached medical report and bill for services rendered to [Patient #4]. I declare that the treatments indication on the attached medical report and bill for services were provided by me on the dates listed and that the treatment and services rendered were reasonable and necessary with respect to the bodily injury sustained. Respondent's billings for Patient #4, in the approximate amount of $300.00, were fraudulent and the affidavit he signed on February 6, 1991, was untrue. Respondent was born in Cuba and graduated from the University of Havana School of Medicine in 1962. Respondent testified at the formal hearing that he was born on May 26, 1919, but the application for licensure submitted by Respondent reflects that Respondent was born May 26, 1924. There was no explanation for this discrepancy. Respondent has been licensed as a physician in the State of Florida since 1977. There was no evidence that Respondent has been previously disciplined by Petitioner. At the time of the formal hearing, Respondent was practicing medicine with Dr. Antonio Ramirez, M.D. Dr. Ramirez is a physician licensed to practice medicine in the State of Florida. Dr. Ramirez was also educated in Cuba, and had known Respondent since the 1970s. Dr. Ramirez is of the opinion that the services rendered by Respondent have been satisfactory. Respondent has no responsibility for submitting bills to patients or to insurance companies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent committed the acts alleged in the Administrative Complaint and which revokes Respondent's license to practice medicine in the State of Florida. DONE AND ORDERED this 7th day of February, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1994. COPIES FURNISHED: Carlos J. Ramos, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Manuel F. Fente, Esquire 1835 West Flagler Street, Suite 201 Miami, Florida 33135 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Department of Management Services properly denied medical insurance reimbursement to Petitioner, a covered dependent of a state employee insured by the State Employees' Preferred Provider Organization health plan, for Genotropin recombinant growth hormone prescribed for the treatment of long- term growth failure associated with idiopathic short stature.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The state group insurance program is a package of insurance plans offered to, among others, state employees and their dependents. § 110.123(2)(k), Fla. Stat.1/ Petitioner Arturo Puerto is insured as a dependent of a state employee, and is a participant in the state's group self- insured plan, known as the State Employees' Preferred Provider Organization health plan ("PPO plan" or "state plan"). The state plan includes a state employees' prescription drug program. § 110.12315, Fla. Stat. Pursuant to Section 110.123(3)(c), Florida Statutes, the Department is responsible for contract management and day- to-day management of the state employee health insurance program. Section 110.123(5)(c), Florida Statutes, authorizes the Department to contract with an insurance carrier or professional administrator to administer the state plan. The current contract provider of the state plan's pharmacy program is CareMark Inc. ("CareMark"). However, the Department makes all final decisions concerning the existence of coverage or covered benefits under the state plan. The Department's authority in this regard may not be delegated to a contract provider. § 110.123(5), Fla. Stat. Petitioner was born on February 12, 1992. On or about February 3, 2009, Petitioner's physician prescribed Genotropin, a recombinant growth hormone ("GH")2/ approved by the United States Food and Drug Administration ("FDA") as therapy for short stature, including idiopathic short stature ("ISS"). ISS is short stature that does not have a diagnostic explanation, in an otherwise healthy child. ISS is also called "non-GH-deficient short stature." The Group Health Insurance Plan Booklet and Benefits Document, effective January 1, 2007, as modified on January 1, 2009, includes the terms and conditions of participation in the PPO plan and the benefits provided by the PPO plan. The booklet and benefits document contains a section describing the prescription drug program. Participants in the PPO plan are automatically enrolled in the prescription drug program, which features a network of retail pharmacies and a mail order program. The participant makes a co-payment for covered prescriptions. The booklet and benefits document sets forth a list of drugs that are covered, and a list of drugs that are not covered under the prescription drug program. Under the heading "Important Information about the Prescription Drug Program," the document states the following concerning specialty medications:3/ 5. Certain medications, including most biotech drugs, are only available through Caremark Specialty Pharmacy Services. Generally, these drugs are for chronic or genetic disorders including, but not limited to, multiple sclerosis, growth deficiency and rheumatoid arthritis and may require special delivery options, (i.e. temperature control). Caremark Specialty Pharmacy provides 24/7 access and can be contacted at 1-800-237-2767. * * * 12. As part of the Caremark Specialty Services, Caremark will administer the Advanced Guideline Management program for the State Employees' PPO Plan. Advanced Guideline Management is intended to optimize outcomes and promote the safe, clinically appropriate and cost-effective use of specialty medications supported by evidence based medical guidelines. Failure to meet the criteria for Advanced Guideline Management during the respective use review will result in denial of medication coverage for the Plan participant and discontinuation of medication coverage for the Plan participant in the case of concurrent use review. The Advanced Guideline Management Program is a process by which authorization for a specialty medication is obtained based on the application of currently acceptable medical guidelines and consensus statements for appropriate use of the medication in a specific disease state. Therapies reviewed under the Specialty Guideline Management Program include, but are not limited to, the following: multiple sclerosis, oncology, allergic asthma, human growth hormone, hepatitis C, psoriasis, rheumatoid arthritis, and respiratory syncytial virus. Additional therapies may be added from time to time.... CareMark's current guideline covering Genotropin and similar GH medications is set forth in a 2008 CareMark document titled, "Specialty Pharmacy Program for Growth Hormone and Endocrine-Metabolic Disorders." The document contains flow charts describing the criteria employed by CareMark to determine coverage for specific conditions. Among the criteria set forth in the flow chart for prescribing GH to children with ISS is the following question: "Does pre-treatment growth velocity and height meet the AACE (American Association of Clinical Endocrinologists) criteria for short stature?" (See Appendix N). If the answer to the question is "no," then the criteria direct that coverage for the prescription of GH should be denied. Appendix N sets forth the following "AACE criteria for short stature": < -2.25 standard deviations below the mean for age and sex based on patient's growth rate, adult height prediction of less than 5'3" for boys and less than 4'11" for girls. Appendix N is based on the AACE's "Medical Guidelines for Clinical Practice for Growth Hormone Use in Adults and Children-- 2003 Update" and a December 2003 AACE Position Statement on growth hormone usage in short children.4/ The CareMark document is not explicit as to whether the quoted elements of the AACE criteria for short stature are to be considered in the disjunctive. However, the AACE Position Statement expressly states that GH use is indicated for ISS only for children whose height is "< - 2.25 standard deviations below the mean and have an adult height prediction of less than 5'3" for boys and less than 4'11" for girls." (Emphasis added.) The height standard deviation criterion used by CareMark to determine the appropriateness of Genotropin therapy as a treatment for ISS was shown to be consistent with FDA criteria and the specifications established by Pfizer, the manufacturer of Genotropin. The medical records submitted on behalf of Petitioner show that at the time Genotropin therapy was prescribed in February 2009, Petitioner's height was 162.5 cm (5'4"). This was 1.66 standard deviations below the mean for his age and sex. Untreated, his predicted final height was 164 cm (5'4 1/2"). At the time Genotropin therapy was prescribed, Petitioner did not meet the height standard deviation requirement. His height standard deviation was 1.66 standard deviations below the mean. The deviation required by the CareMark criteria was greater than 2.25 standard deviations below the mean. At the time Genotropin therapy was prescribed, Petitioner did not meet the adult height prediction requirement. Petitioner was already 5'4" tall and was projected to reach a height of 5'4 1/2" without treatment. The CareMark criteria required a projected adult height without treatment of 5'3" or below. The PPO plan denied payment for the Genotropin therapy because Petitioner did not meet criteria established by CareMark through its Specialty Pharmacy Program guidelines. The booklet and benefits document makes no provision for exceptions to strict conformity to the CareMark criteria. At the hearing, Petitioner's representative acknowledged that Petitioner does not meet the criteria for Genotropin therapy, but requested that the Department order such coverage as an exception to the criteria.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Management Services, Division of State Group Insurance enter a final order denying coverage for Petitioner's prescription for Genotropin therapy. DONE AND ENTERED this 10th day of March, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 10th day of March, 2010.
The Issue The issue is whether Brian T. Kidd is entitled to additional reimbursement of medical care expenses under the State of Florida Employees' Group Insurance Plan.
Findings Of Fact Mr. Kidd is a state employee and has been diagnosed as having Amyotrophic Lateral Sclerosis (ALS), commonly known as Lou Gehrig's Disease. When the disease was diagnosed, Mr. Kidd was covered by Capital Health Plan (CHP). CHP refused to cover the expenses of testing and treatment at the ALS clinic in Houston, Texas. During the October, 1989, open enrollment period, Mr. Kidd opted to change his medical insurance coverage to the State of Florida Employees' Group Insurance Plan (the State Plan). He made the change hoping to get coverage for the testing and treatment at the ALS clinic in Texas. The effective date of his coverage under the State Plan was January 1, 1990. Prior to leaving for the ALS clinic, Mr. Kidd talked to Lee Peacock and William Seaton in the Department's Division of State Employee Insurance. Mr. Kidd was told that the only way to determine the extent of coverage for the testing and treatment was to get prior approval from the Department's prior approval program. Mr. Kidd did not file a claim under the prior approval program. Instead, on January 29, 1990, Mr. Kidd sent a letter to William Seaton, together with a copy of a letter from Bernard. M. Patten, M.D., a doctor with the Baylor College of Medicine in Houston, Texas. Mr. Kidd's letter advises that he wants a predetermination regarding tests he is having from January 31 to February 8, 1990. Knowing that his letter requesting a predetermination could not have even been received by the Department, Mr. Kidd left for Texas and the scheduled tests and treatment. Mr. Peacock responded to the January 29, 1990, letter on February 13, 1990, advising that prior approval could not be given because the letter contained inadequate information and a prior approval claim had not been filed. Mr. Kidd did receive medical testing and treatment from January 31 to February 8, 1990. The State Plan paid approximately $8,400 of the total bills. Mr. Kidd believes that the State Plan should have paid more. Mr. Kidd offered no credible evidence to show entitlement to greater payment of benefits. While he did place numerous benefit payment schedule forms into evidence, he did not identify a single unpaid charge and show that it should have been paid. Further, his testimony in this regard is not entitled to great weight because some of his statements are plainly inaccurate. For example, Mr. Kidd identified a benefit payment schedule bearing a number of 00731581300 in which payment for $85.00 was excluded. He claimed that this charge should have been paid. On cross-examination, Mr. Kidd had to acknowledge that this charge was in fact paid on benefit payment schedule number 01271871300 except for $20.00 which was an ineligible expense. Mr. Kidd was unclear on and unable to identify those charges which had not been paid and the reasons he believed he was entitled to the benefits. The State Benefit Document limits payments for hospital services for non-PPC services at 80% of the hospital's average rate, not to exceed $152.00 per day. The Plan also requires a deductible of $200.00 per hospital admission. For example in this case Mr. Kidd had 9 days of hospitalization and was charged $230.00 per day. The eligible expenses were only $190.00 per day or $1710 leaving a total of $360 of ineligible expenses. Further, The Plan pays only 80% of eligible expenses (.80 x 1710=1368), leaving $342 or 20% as the patient's responsibility. Adding the ineligible expenses and the patient's responsibility leaves a total of $702 of the hospital room and board not paid under the Plan. The amount paid was correct. While there are other examples such as this where the Plan clearly paid the proper amount, there is no evidence to show one single example where the Plan did not pay all that was owed. All of Mr. Kidd's claims were properly paid under the Plan in accordance with the Benefit Document.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Brian T. Kidd's request for additional reimbursement and dismissing Mr. Kidd's petition for relief. DONE and ENTERED this 19th day of October, 1990, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Brian T. Kidd The proposed findings of fact submitted by Petitioner are in a format which combines findings of fact, conclusions of law and argument. The proposed findings of fact cannot be separated in such a way as to allow specific rulings on each proposed finding of fact. Hence the only ruling that can be made is that the proposed findings of fact are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Administration Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-7) and 9(12). Proposed finding of fact 6 is subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 7 and 8 are unnecessary. COPIES FURNISHED: Brian T. Kidd Route 3, Box 4381 Quincy, Florida 32351 Augustus D. Aikens General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner timely notified Respondent, Division of State Group Insurance of a "qualifying status change" (QSC) event, so as to allow Petitioner to cancel her participation in the State Group Health Insurance Program during the Plan Year- 2006. Petitioner seeks a refund of amounts deducted/paid because her insurance was continued.
Findings Of Fact Petitioner has been a covered participant in the Program, authorized by Section 110.123, Florida Statutes, at all times material. As provided in Section 110.123(3)(c), Florida Statutes, Respondent DMS, through its administrative entity, DSGI, is responsible for contract management and day-to-day administration of the Program. DMS has contracted with Convergys, Inc., to provide human resources management services including assisting in the administration of the Program. Convergys performs these tasks in part through an on-line system known as "People First." However, as provided in Section 110.123(5), Florida Statutes, final decisions concerning the existence of coverage or covered benefits under the Program are not delegated, or deemed to have been delegated, by DMS. Section 110.161, Florida Statutes, requires DSGI, as the responsible administrative entity, to administer the Program consistent with Section 125 of the Internal Revenue Code, so that participants will obtain the pre-tax advantages provided by Section 125. One of the federal requirements to maintain the pre-tax status is that the plan's sponsor (e.g., the State of Florida) administer the plans and apply each plan's rules in a manner that does not discriminate and that treats all participants equally. In this case, Petitioner was enrolled in the Health Program Plan Year 2006, i.e. from January 1, 2006, through December 31, 2006. Allowing a Plan member to retroactively cancel her participation during a Plan Year without having properly reported a QSC could put the entire pre-tax program in jeopardy. A QSC is a change in status as listed in the Plan which would allow an employee to cancel or otherwise change participation in the Plan during the Plan Year if requested by the employee within 31 days of the change in status. Converting from full-time to part-time state employment is a QSC event. On April 21, 2006, Petitioner converted from full-time employee status to part-time employee status. Therefore, the QSC event in this case occurred on April 21, 2006, when Petitioner went from being a full-time to a part-time employee. However, in order to effect a change in health insurance coverage, Petitioner was required to request a change in health insurance coverage no later than May 22, 2006. To request a change in health insurance coverage, Petitioner would have needed to contact Convergys in a timely manner, i.e. within 31 days of April 21, 2006. For People First, Convergys maintains a tracking system known as "Siebel," which tracks written correspondence to or from state employees and notes telephone calls between state employees and Convergys associates. Standard business procedure for Convergys is that the telephone logs are not verbatim notations of the conversations, but are a summary of those conversations, including a description of the reason for the call and the action taken by any Convergys associate that took the call. The Convergys policy is that all calls are to be notated. All service associates are trained to note all calls. Convergys employees are trained to make the call notes during the telephone conversation or soon thereafter. A notation is to be made by the Convergys employee in the Siebel system, and a case is opened when the service representative cannot assist the caller or when further action is required. The case notes are also to be recorded in the system. None of the People First, DGS/DGSI, or Convergys records reflect any contact by Petitioner within the 31 days following April 21, 2006, although they reflect several later contacts concerning her complaint that her coverage was not timely cancelled. Petitioner testified that she used her sister's cell phone to telephone People First "after two or three weeks" and that she discussed cancellation of her participation in the state insurance program and flirted with the Black male who answered the phone, but who seemed not to have much experience in the cancellation process. Petitioner was not able to provide the name or position of the person with whom she allegedly spoke or the date or time of her telephone call. The fact that Petitioner testified that she knew that she "had to around the middle or so" of the month to request her change of coverage, illustrates Petitioner's rather loose interpretation of when this alleged call occurred. Petitioner presented no witness or documentation to corroborate her testimony that she had received oral assurances during that phone call to the effect that the change she requested had been completed through People First. Petitioner's representation that the telephone company could not get the phone records of this telephone call due to the passage of time is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order ratifying its October 13, 2006, denial of Petitioner's requested retroactive cancellation of enrollment in the State Group Health Insurance Plan. DONE AND ENTERED this 19th day of July, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 19th day of July, 2007. COPIES FURNISHED: Ericka L. Ledbetter 739 South Shelfer Stree Quincy, Florida 32351 Sonja P. Matthews, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 John J. Matthews, Director Department of Management Services Division of State Group Insurance 4050 Esplanade Way Tallahassee, Florida 32399-0949
The Issue The issue at the hearing was whether Petitioner is entitled to a premium refund of her health insurance premium.
Findings Of Fact The Petitioner, Mildred Daw, is a retired State employee. She is enrolled in the State of Florida, State Employees Group Health Self Insurance Plan (the Plan). Prior to retiring, Petitioner amended her coverage in the Plan, changing from single coverage to family coverage. Petitioner modified her coverage so that her husband would be covered under the Plan. Petitioner's husband was under age 65 and qualified for Medicare Parts A and B. Petitioner was not qualified for Medicare coverage. The premium for family coverage was $178.44 per month. Petitioner began paying this amount shortly before she retired in December 1984. By letter dated, July 8, 1985, the Division of State Employees' Insurance notified retirees that: If you are under age 65 and eligible for Medicare Part A and B because of disability, you may now be eligible for Medicare Coordination coverage at the reduced rate. Please notify our office if you are eligible and send a copy of your Medicare card. Your premium will be reduced the month following our receipt of your notice and the copy of your Medicare card. The letter was sent to retirees and made no mention of surviving spouses or that a current spouse, who fit within the Medicare category, could qualify the insured for Medicare Coordination coverage. The Medicare Coordination coverage is the only program that the State offers in which it is the spouse of the insured/retiree who can qualify the insured for new benefits or different coverage. In this case, the different coverage or new benefit was solely a reduction in premium. Otherwise, the benefits under the family coverage and the Medicare Coordination coverage were the same. An ordinary person reading the letter would not have been placed on notice and would not have assumed that anyone other than the retiree was covered by the letter. If Petitioner had immediately elected the Medicare Coordination coverage, her premium would have been reduced by $42.76 a month, beginning with the August 1985, payment. The July 8, 1985, letter was mailed by first class mail to all retired State employees in the Plan. The business practice of the Division is to mail any such letters to the address of the retiree listed with the Division of Retirement and given to the Division of State Employees' Insurance or to the most current address the Division of Employees Insurance has for that particular retiree. In this case, the address which the Division of Retirement would have had on Petitioner in 1985 was her old address in Jacksonville. However, by July 1985, Petitioner had mailed the Division of State Employees' Insurance a change of address card with her new Pensacola address. She did not mail the Division of Retirement a change of address. There is no evidence as to which address the Respondent mailed the July 8, 1985, letter. Without such evidence Respondent is not entitled to a presumption of proper notice when a letter is mailed to a party with the correct address. Petitioner does not remember receiving the July 8, 1985, letter. She would have elected the Medicare Coordination coverage had she been aware of its availability. Petitioner became aware of her eligibility for reduced premiums in October 1987, when she received an informational bulletin from the Division of State Employees' Insurance. The bulletin stated the premium rates for various types of insurance coverage, including the reduced premiums for family coverage with members of the family who are qualified for Medicare benefits. Petitioner telephoned the Division and was instructed by Division personnel to send in a copy of her husband's Medicare card in order to establish her eligibility for the reduced premium. Petitioner sent a copy of her husband's Medicare card to the Division in October 1987. On November 6, 1987, Petitioner requested a refund of excess insurance premiums paid from July 1985, through November 1987. On December 28, 1987, Petitioner was informed by the Respondent that the earliest date a change in coverage could become effective was October 1987, because Petitioner had not applied for a change of coverage prior to that time. Petitioner was awarded an excess premium refund for the premium paid for November coverage. The Rules governing the Plan are found in Chapter 22I-1, Florida Administrative Code. This Chapter generally requires that an employee or retiree perform an affirmative act, by completing an informational form and sending it to the Department, before any change in coverage can be effectuated. The reason for such a requirement is that the Department has no way of knowing the number of eligible employees or retirees, without being supplied that information from the insureds, so that the Plan's administrator can better manage the Plan's funds to provide an adequate amount for the payment of claims. However, competing with this Rule is the Respondent's policy that a retiree who is otherwise eligible for certain benefits, but did not receive any notice of such eligibility is entitled to retroactive benefits. This policy is based on the Division's duty to administer the State's health plan, including notifying retirees of the availability of new types of coverage or benefits. The evidence showed that this policy takes precedence over the Rule when the Division has failed to notify an eligible retiree. In this case the Division failed to notify Petitioner of her eligibility for Medicare Coordination coverage due to her spouse's qualifications. Petitioner is therefore entitled to retroactive benefits beginning July 1985. Since the benefit of the Medicare Coordination coverage is a reduced premium, Petitioner is entitled to a refund of the excess premium of $42.76 a month from July 1985, through October 1987. The refund for that time period totals $1,154.52.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order refunding to Petitioner excess premiums paid to the Department in the amount of $1,154.52. DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-301 The facts contained in paragraphs a, b, c, d, e, f, g, h, i, j and k of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs l, m, and n of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraph p of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraph o of Petitioner's Proposed Findings of Fact are rejected. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 13 and 14 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 7 of Respondent's Proposed Findings of Fact were not shown by the evidence except for the fact relating to the letter being mailed first class mail. COPIES FURNISHED: Karren Lessard 15 West La Rua Street Pensacola, Florida 32521 Larry D. Scott Senior Attorney Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Andrew McMullian III Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Petitioner, Riquel Gonzalez-Salcerio ("Dr. Gonzalez"), has disqualifying offenses under section 435.04(4), Florida Statutes; if so, whether Dr. Gonzalez has demonstrated rehabilitation by clear and convincing evidence; and, if so, whether Respondent, Agency for Health Care Administration's ("AHCA"), intended action to deny Dr. Gonzalez's request for an exemption from disqualification constitutes an abuse of discretion.
Findings Of Fact Dr. Gonzalez is a 53-year-old licensed podiatric physician seeking to qualify, pursuant to section 435.07, to re- enroll as a Medicaid provider, which requires compliance with background screening standards set out in section 435.04(4).1/ AHCA is the state agency responsible for administration of the Medicaid program in Florida, including the issuance of a Medicaid provider number for which Dr. Gonzalez seeks to qualify. In 1990, Dr. Gonzalez, who is of Cuban descent, received a medical degree from Central University in Las Villas, Cuba. Following graduation, Dr. Gonzalez entered a three-year residency program in invasive cardiology at the Cardiac Institute in Havana, Cuba. Upon completion of the residency program, Dr. Gonzalez practiced cardiology at the Central Institute of Cardiology in Las Villas. In 1997, Dr. Gonzalez traveled from Cuba to Uruguay and worked at Sanatorio Americano Hospital as the Chief of Cardiology. While in Uruguay, Dr. Gonzalez became the chief of Cardiology for the entire country of Uruguay, and he obtained a doctorate in diagnostic radiology. In 1999, Dr. Gonzalez decided to leave Uruguay, defect from Cuba, and live in the United States. In order for Dr. Gonzalez to be permitted to leave Uruguay and travel directly to the United States, it was necessary for him to conceal his Cuban descent. In order to conceal his Cuban descent, Dr. Gonzalez obtained a fake Florida driver's license in a fictitious name. In 1999, Dr. Gonzalez traveled from Uruguay to the United States by airline and entered the United States at Miami International Airport. Once he arrived in Miami, Dr. Gonzalez did not use the fake driver's license at the airport. Dr. Gonzalez presented to immigration in his own name and announced his intent to defect to the United States. Dr. Gonzalez was immediately accepted as a Cuban refugee, paroled into the United States, and he is now a permanent resident of the United States. Following his receipt of a work permit, Dr. Gonzalez remained in Miami and obtained a job as a medical assistant at Gables Medical Center, a clinic owned by one of his cousins. As a foreign doctor, Dr. Gonzalez was able to obtain certification authorizing him to work as a medical assistant. Dr. Gonzalez worked at the clinic as a medical assistant from 1999 to 2001. In 2001, Dr. Gonzalez began working at Echofet Diagnostic Center as an ultrasound technician, which was within the scope of his medical assistance certification. On October 14, 2003, while working as an ultrasound technician, Dr. Gonzalez used his fake driver's license in an attempt to cash a check as a favor for Dr. Guillermo Achon, who also worked at the facility. Dr. Achon wrote a check made payable to the fictitious name on the driver's license and gave the check to Dr. Gonzalez to cash for him. Dr. Gonzalez took the check and went to a bank. Dr. Gonzalez presented the check and fake driver's license to the bank teller in an effort to obtain cash. Upon presentment of the check and the fake driver's license to the bank teller on October 14, 2003, Dr. Gonzalez was immediately arrested for one count of violating section 831.01, Florida Statutes (2003)(forgery); one count of violating section 812.014, Florida Statutes (2003)(grand theft); and one count of violating section 322.212(1)(a), Florida Statutes (2003)(possession of a counterfeit driver's license). Dr. Gonzalez was ultimately charged with only a single count of violating section 322.212(1)(a), possession of a counterfeit driver's license, a third-degree felony. Dr. Gonzalez pled guilty to the charge. Adjudication was withheld and he was sentenced to two years of probation and was required to complete community service and an anti-theft course. Dr. Gonzalez completed his probation early, and he completed the community service and anti-theft course requirements.2/ In 2006, Dr. Gonzalez left Echofet Diagnostic Center and decided to enroll in podiatry school. In 2007, Dr. Gonzalez was accepted to podiatry school at Barry University. During this time period, Dr. Gonzalez was also working for Dr. Roberto Rivera, a radiologist in Miami. While working for Dr. Rivera, Dr. Gonzalez read and interpreted radiological scans, such as X-rays and CT scans. At that time, Dr. Gonzalez was not legally authorized to read and interpret radiological scans because he was not licensed by the State of Florida as a physician. As a result of his conduct, on June 13, 2007, Dr. Gonzalez was arrested for 36 counts of violating section 817.234, Florida Statutes (2006) (false/fraudulent insurance claims); three counts of violating section 812.014 (2006)(grand theft, third degree); and 36 counts of violating section 456.065(2)(d)1., Florida Statutes (2006)(unlicensed practice of health care). Dr. Gonzalez was ultimately charged with only a single count of violating section 456.065(2)(d)1. (unlicensed practice of health care), a third-degree felony. Dr. Gonzalez pled guilty. Adjudication was withheld and he was sentenced to five years of probation, required to complete community service, and ordered to pay restitution of $6,875.00 and costs of $1,557.60. Dr. Gonzalez also agreed to cooperate with the investigation and prosecution of two other defendants. Dr. Gonzalez completed his probation early, and he completed the community service and restitution requirements. Dr. Gonzalez contends that the October 14, 2003, criminal offense of possession of a counterfeit driver's license and June 13, 2007, criminal offense of unlicensed practice of health care are not disqualifying criminal offenses. As discussed in more detail below in the Conclusions of Law, the October 14, 2003, criminal offense of possession of a counterfeit driver's license, in violation of section 322.212(1)(a), and the June 13, 2007, criminal offense of unlicensed practice of health care, in violation of section 456.065(2)(d), are not disqualifying criminal offenses. However, even if these two offenses are disqualifying, Dr. Gonzalez has demonstrated rehabilitation by clear and convincing evidence. At hearing, Dr. Gonzalez accepted full responsibility for the two criminal offenses that AHCA considered disqualifying. Dr. Gonzalez has had no arrests or other criminal history since his arrest on June 13, 2007, and the resulting offense of unlicensed practice of health care. In 2011, Dr. Gonzalez completed the podiatry program at Barry University that he began in 2007 and obtained a medical degree in podiatric medicine. After graduation, Dr. Gonzalez entered a residency program in foot and ankle reconstructive surgery at Mercy Hospital in Miami, which he completed in 2014. In 2014, Dr. Gonzalez applied for his medical license with the State of Florida, Department of Health, Board of Medicine. During the application process, Dr. Gonzalez disclosed all of his criminal history. The Board of Medicine initially denied the license. However, Dr. Gonzalez appeared before the Board of Medicine, and following a hearing, he was granted a license. Since that time, Dr. Gonzalez has continuously maintained his license to practice podiatric medicine in Florida. Since becoming licensed in 2014, Dr. Gonzalez has specialized in foot and ankle surgeries. He is well-known and an active and respected member of the Miami and south Florida communities. Dr. Gonzalez has privileges at Mercy Hospital and Larkin Community Hospital, Palm Springs campus. Dr. Gonzalez is only one of three podiatric physicians in Miami who perform total ankle replacements. Dr. Gonzalez's office practice, Dr. Riquel Gonzalez DPM, PA, is located at 1435 West 49th Place, Suite 604, Hialeah, Florida 33012. In his practice, he has approximately 6,000 patients, seeing 40 to 50 patients a day. More than 70 percent of his practice is surgical and 30 percent of his patients are covered under the Medicaid program. In addition to his medical practice, Dr. Gonzalez is a professor at Barry University, teaching podiatric surgery, foot and ankle surgery, and radiology. While at Barry University, Dr. Gonzalez has received the honor of Professor of the Year. Dr. Gonzalez has also received a national award from the Foot and Ankle Society as one of the top ten podiatrists in the United States. Dr. Gonzalez is also the current director of the residency program at Larkin Community Hospital, Palm Springs campus. As director, Dr. Gonzalez supervises nine residents, who also train in his office and assist in surgeries under his supervision. Dr. Gonzalez also spends substantial time as a volunteer in his local community and elsewhere on behalf of various charitable causes. He treats the homeless at Camillus House, a homeless shelter in the Miami area. Dr. Gonzalez brings his residents to the shelter, and they perform basic podiatric care, such as cleaning feet and clipping nails. Dr. Gonzalez travels to Mexico with other physicians and residents for medical missions, providing podiatric surgical services for patients, particularly children, who have no medical insurance or ability to pay. Since 2011, Dr. Gonzalez has travelled annually to different locations where he provides free podiatric services. Presently, Dr. Gonzalez is planning a trip to Columbia to conduct similar medical mission work. In addition, Dr. Gonzalez donates podiatric medical equipment to new podiatric school graduates. From 2014 until April 2019, Dr. Gonzalez treated Medicaid patients under a Medicaid provider number issued by AHCA. In April 2019, AHCA terminated Dr. Gonzalez's Medicaid provider number and agreement. As a result of not having a Medicaid provider number, insurance companies providing Medicaid coverage have also terminated Dr. Gonzalez as a Medicaid provider. Nevertheless, Dr. Gonzalez continues to treat Medicaid patients in his office free of charge. However, Dr. Gonzalez is not permitted to perform surgery on Medicaid patients at a hospital because he is no longer a Medicaid provider. Since 2014, Dr. Gonzalez has never had an issue with Medicaid billing for services performed. He has never received an overpayment notice, none of his billings have been questioned, and he has complied with the Medicaid provider requirements. At hearing, Dr. Gonzalez presented the testimony of Dr. Mario Cala, a fellow podiatric surgeon in Miami. In 2008, Dr. Cala received his degree in podiatric medicine from Barry University, and he has practiced in Miami for the past eight years. He has known Dr. Gonzalez for approximately 15 years. Until recently, Dr. Cala was the chief of Podiatry at Jackson Memorial Hospital in Miami. When Dr. Cala was a fellow at Mercy Hospital, Dr. Gonzalez was a first-year resident. Dr. Cala testified that Dr. Gonzalez is one of the best podiatric surgeons in Miami. Dr. Cala regularly consults with Dr. Gonzalez and refers patients to Dr. Gonzalez for total ankle replacement surgery. Dr. Cala and Dr. Gonzalez have traveled together on medical mission trips. Dr. Cala is aware of Dr. Gonzalez's prior legal problems. Dr. Cala credibly and persuasively attested to Dr. Gonzalez's good character and great reputation in the community. He described Dr. Gonzalez as compassionate, kind, thoughtful, and humble. There was no cross-examination of Dr. Cala by AHCA. Dr. Gonzalez also presented the testimony of Paula Camacho. For the past ten years, Ms. Camacho has been a medical sales distributor for Generation X Technologies, a company which sells medical devices to assist physicians who treat patients with lymphedema. She has known Dr. Gonzalez for the past five years, having met him at his office when she was scheduling a training session on the use of lymphedema pumps. Dr. Gonzalez is a client of Ms. Camacho and she has observed him interacting with patients. Ms. Camacho is also a member of the Miami-Dade Podiatric Medical Association, where Dr. Gonzalez has lectured at association meetings on trends and developments involving podiatric medicine. Ms. Camacho described Dr. Gonzalez as a "pillar of the medical community, very well-respected" throughout Miami-Dade County. Ms. Camacho credibly and persuasively attested to Dr. Gonzalez's good character and great reputation in the community. She described Dr. Gonzalez as trustworthy, compassionate, kind, thoughtful, and humble. There was no cross-examination of Ms. Camacho by AHCA. Dr. Gonzalez also presented the testimony of Anthony Kirchner, a sales representative for Generation X Technologies. Mr. Kirchner has known Dr. Gonzalez for almost seven years. As a sales representative, Mr. Kirchner has been present during surgeries performed by Dr. Gonzalez and other podiatrists. He also observes Dr. Gonzalez interacting with residents. Mr. Kirchner described Dr. Gonzalez as "[p]robably one of the best surgeons I've ever seen in the whole City of Miami. Hands down." Mr. Kirchner further testified that Dr. Gonzlaez "puts the patient first" and that he is "professional" and "hands-on" with residents. Mr. Kirchner credibly and persuasively attested to Dr. Gonzalez's good character, great reputation in the community, and how he is trustworthy, compassionate, kind, thoughtful, and humble. There was no cross-examination of Mr. Kirchner by AHCA. Dr. Gonzalez also presented the testimony of his step- daughter, Estefany Garcia. Ms. Garcia has known Dr. Gonzalez for the past 15 years. She has also worked at Dr. Gonzalez's medical office for the past two years as an office manager. As office manager, Ms. Garcia has had the opportunity to observe Dr. Gonzalez interact with patients. She described Dr. Gonzalez as a "great person," and her "second father," and she testified that patients are very fond of him. Ms. Garcia credibly and persuasively attested to Dr. Gonzalez's trustworthiness and great reputation in the community. There was no cross- examination of Ms. Camacho by AHCA. After the presentation of Dr. Gonzalez's witnesses, AHCA recalled Ms. Risch as a witness. Ms. Risch, an AHCA operations management consultant manager for the past year, testified that there was information presented for the first time at the hearing bearing on Dr. Gonzalez's rehabilitation, such as his involvement in the community, mission work, and provision of podiatric treatment to patients free of charge. Ms. Risch acknowledged that this additional information presented at hearing could have affected AHCA's decision to deny the exemption. In addition to the live testimony presented by Dr. Gonzalez, he provided letters of support from other friends and colleagues. These letters explain or supplement the substantial testimony at hearing regarding Dr. Gonzalez's good character. In one of the letters dated September 5, 2018, Ramon Hechavarria, M.D., stated that he has known Dr. Gonzalez as both a close friend and colleague. Dr. Hechavarria first met Dr. Gonzalez in 1999. Dr. Hechavarria described Dr. Gonzalez as "one of the most disciplined, intelligent, and dedicated people I've ever known." According to Dr. Hechavarria, Dr. Gonzalez's ability to work efficiently under stressful conditions and nerve-wracking deadlines speaks volumes about his hard work, determination, and composed demeanor. During all this time he has demonstrated excellent leadership skills and morale. I would also like to add that, Riquel is a compassionate human being with praiseworthy perseverance and ambition. I believe that he is an indispensable asset for the Podiatric profession and he has all my support and admiration. In another letter dated September 6, 2018, Iris Berges, who is the chief executive officer of Larkin Community Hospital, Palm Beach campus, stated that she has known Dr. Gonzalez for over three years. Ms. Berges stated that her relationship with Dr. Gonzalez "has been one of mutual professional respect along with friendship." Ms. Berges further stated that Dr. Gonzalez "is a highly respected and skilled Foot and Ankle Surgeon. He is admired and relied upon by our physicians. His patients trust and rely on him." It is abundantly clear, from the credible and heartfelt testimony of Dr. Gonzalez, Dr. Cala, Ms. Camacho, Mr. Kirchner, and Ms. Garcia, that Dr. Gonzalez is a responsible individual and rehabilitated from the two offenses in 2003 and 2007. The incidents in question occurred over a decade ago. Since 2007, Dr. Gonzalez has lived as a model law-abiding citizen. Dr. Gonzalez has operated a successful podiatric medicine practice providing medical treatment to underserved and underprivileged persons within his community. He has provided pro bono medical services to patients within his medical practice and in other communities and other countries on medical mission trips. Dr. Gonzalez has been an upstanding, well- respected physician and member of his community who has contributed greatly to his profession, the development of those aspiring to join his profession, and the underserved in need of his highly skilled professional services. Under the particular circumstances of this case, there is no evidence that would indicate that Dr. Gonzalez would present a danger if granted a Medicaid provider number. To the contrary, the evidence presented at hearing demonstrates that patients and persons within Dr. Gonzalez's community and elsewhere have benefited, and will continue to benefit, from Dr. Gonzalez's podiatric services through Medicaid. The only danger evident here would be that the Medicaid population would not be able to obtain medical surgical services if Dr. Gonzalez were not granted a Medicaid provider number. Based on the clear and convincing evidence presented at hearing, the undersigned finds that Dr. Gonzalez is rehabilitated from the two disqualifying criminal offenses in 2003 and 2007, and that he presents no danger if approved to re- enroll as a Medicaid provider and issued a Medicaid provider number.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Dr. Gonzalez's renewal application as a Medicaid provider because of a lack of disqualifying criminal offenses or, in the alternative, an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 5th day of August, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 5th day of August, 2019.
