The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint issued August 25, 2000, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating insurance licenses and appointments pursuant to Chapter 626, Florida Statutes. At all times material to the allegations in this case, the Respondent has been licensed as a Life Health and Annuity Agent, Life Health and Variable Annuity Agent, and a Health Insurance Agent in this state. On March 7, 1982, the Respondent was celebrating her birthday, she turned 22 that day, and was returning home with her husband when the vehicle they were in was stopped for a minor traffic infraction (expired tag). Believing he had to perform a "pat down" for his safety, the officer felt the Respondent's purse and noticed a bulge in the shape of a small weapon. The small hand gun had been a birthday present to the Respondent. Upon discovering the weapon, the officer charged the Respondent with carrying a concealed firearm. Initially the Respondent entered a written plea of not guilty but subsequently changed the plea in open court to one of nolo contendere. In connection with the plea change, the court entered an Order Granting Probation and Fixing Terms Thereof. The fact that the Respondent was placed on probation is not disputed. Further, as the Court determined the Respondent was not likely to again engage in a criminal course of conduct, adjudication was withheld and probation set for a period of one year. The Respondent successfully completed that year of probation and has had no further incidents of criminal misconduct. The Respondent erroneously believed that the successful completion of the probationary period, and the fact that adjudication had been withheld, resulted in the expungement of the criminal record. As the Respondent later found out, criminal records are not automatically sealed or expunged. On November 2, 1999, the Respondent filed an application for licensure as a life health and variable annuity agent with the Petitioner. That application contained two questions dealing with the applicant's past criminal history. As to both questions, the Respondent erroneously entered "no" responses. Had the Respondent entered accurate answers, both responses would have been "yes" based upon the status of the Respondent's criminal record at the time the application was submitted to the Petitioner. The Respondent has a medical condition that she claims has damaged her long term-memory. According to the Respondent, she answered the questions as she did because she did not remember all the facts surrounding the criminal history at the time the application was completed but that, even if she had, she would have assumed the matter was sealed and fully resolved since adjudication was withheld. The Respondent's account in this regard has been deemed credible. The Respondent did not intend to mislead the Petitioner and acted more in ignorance of the law as to the prior arrest and probation than in willful disregard of her responsibility to disclose it. At the time Respondent completed her application for licensure she read the paragraph that appears at the bottom of the third page of said application in bold typeface that states: IT IS IMPORTANT THAT YOU HAVE READ ALL OF THE FOREGOING QUESTIONS CAREFULLY AND HAVE ANSWERED THEM FULLY. THIS IS ESPECIALLY IMPORTANT AS IT RELATES TO AN APPLICANT'S LAW ENFORCEMENT RECORDS. THE DEPARTMENT DEEMS ALL MATTERS THAT ARE PART OF AN APPLICANT'S LAW ENFORCEMENT RECORDS TO BE A SIGNIFICANT AND MATERIAL ELEMENT OF THE APPLICATION, THE OMISSION OF ANY PART OF THE LAW ENFORCEMENT RECORD IS A MATERIAL MISREPRESENTATION OR MATERIAL MISSTATEMENT IN AND OF ITSELF. YOUR FAILURE TO DIVULGE YOUR COMPLETE LAW ENFORCEMENT RECORD ON THIS APPLICATION CAN RESULT IN YOUR APPLICATION BEING DENIED. In addition to the foregoing, the application submitted by the Respondent provided the following statement: Under penalty of perjury, I declare that I have read the foregoing application for license and the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The answers provided by the Respondent to the two questions (application questions numbered 18 and 19) were incorrect, misleading, and were presumably used to support the issuance of the Respondent's licenses. Although the Respondent is eligible to have her criminal record sealed or expunged, as of the date of the hearing she had not completed that process. During the investigation of this matter, the Respondent fully cooperated with the Petitioner and obtained copies of documents as requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance impose an administrative fine against the Respondent in an amount sufficient to cover the costs of prosecuting this case. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. ________________________________ J. D. PARRISH 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 1st day of May, 2001. COPIES FURNISHED: Richard J. Santurri, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph H. Fernandez, Esquire The Law Offices of Brand & Fernandez, P.A. 2 Northeast 40th Street Suite 403 Miami, Florida 33137 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 MICHAEL M. PARRISH 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 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue Whether Octavio J. Carreno, M.D. ("Respondent" or "Dr. Carreno"), is liable to the Agency for Health Care Administration ("AHCA," "Agency," or "Petitioner") for an overpayment in the amount of $121,641.42 for certain claims for services during the audit period of January 1, 2012, through December 31, 2014, that in whole or in part were not covered by Medicaid. Whether Respondent is liable to Petitioner for a sanction in the amount of $24,328.28 pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). Whether Respondent is liable to Petitioner for Petitioner's incurred investigative, legal, and expert witness costs, which Petitioner contends it is entitled to recover pursuant to section 409.913(23)(a), Florida Statutes (2014).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of material and relevant facts: Agreed Facts in Parties' Amended Joint Prehearing Stipulation Petitioner is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is referred to as the "Medicaid program." See § 409.902, Fla. Stat.; JPS ¶ E12. Petitioner has the responsibility for overseeing and administering the Medicaid program for the state of Florida, pursuant to section 409.913. JPS ¶ E13. The Medicaid provider agreement is a voluntary contract between AHCA and Respondent. An enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid program, including Medicaid provider handbooks incorporated by reference into rule, as well as all federal, state, and local laws pertaining to licensure to receive payment from the Medicaid program. JPS ¶ E14. During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 002993600. JPS ¶ E2; Pet. Ex. 1. AHCA's Bureau of Medicaid Program Integrity ("MPI"), pursuant to its statutory authority, conducted an audit of Respondent for Medicaid claims it paid to him for medical services he provided to Medicaid recipients, occurring during the time period from January 1, 2012, through December 31, 2014. JPS ¶¶ E1 and E4. AHCA issued a FAR dated March 15, 2016, MPI Case ID No. 2015-0003243, alleging that Respondent was overpaid $139,250.66 for certain services that are not covered by Medicaid. In addition, the FAR informed Respondent that AHCA was seeking to impose a fine of $27,850.13 as a sanction for violation of rule 59G-9.070(7)(e) and seeking costs pursuant to section 409.913(23). The amounts of the overpayment and the sanction were revised, after the FAR was issued, to $121,641.42 and $24,328.28, respectively. JPS ¶ E5. The FAR, supported by the Agency work papers, constitutes evidence of the overpayment to Respondent pursuant to section 409.913(22). JPS ¶ E15. In the FAR section entitled "Findings," AHCA set forth the bases for the overpayment determinations. JPS ¶ E6. The claims which make up the overpayment alleged by AHCA were filed by and paid to Respondent prior to the initiation of this action. JPS ¶ E7. There is no dispute from Respondent as to the process of the statistical sampling or the statistical methods utilized to establish the validity of the overpayment calculation utilized by AHCA. JPS ¶ E16. Additional Facts Adduced at the Hearing Ms. Robi Olmstead, an administrator of the Practitioner Unit at AHCA, under the Offices of the Inspector General, MPI, testified regarding her experience and role in the audit of Respondent. MPI is required by federal and Florida law to investigate medical providers for fraud, abuse, or overpayments. Olmstead cited section 409.913 as the authority to investigate Medicaid providers, including Respondent. The instant case against Respondent was opened based on a referral from one of the investigators who noticed "a significant portion of Dr. Carreno's office visits" (evaluation and management or "E&M" codes) were billed at high levels. Olmstead also independently confirmed this in her review of the data. Olmstead opened the audit, set the coverage dates of the audit period, and assigned the matter to an AHCA investigator. The investigator obtained a list of claims for 40 random recipients from the Agency's cluster sample program. After the sample was obtained, Petitioner then requested the medical records of the sample recipients from Respondent. Pet. Ex. 2. Petitioner utilized the services of a peer consultant, Ellen D. Silkes, M.D. Dr. Silkes meets the requirements and qualifications of a "peer" as defined in section 409.9131. JPS ¶ E17. Dr. Silkes practices the same specialty or sub-specialty as Respondent and is licensed under the same chapter. Pet. Ex. 6, p. 147. Both Dr. Silkes and Dr. Carreno are otolaryngologists, commonly referred to as ear, nose, and throat ("ENT") doctors. The medical records received from Respondent were reviewed by the AHCA investigator and by an AHCA registered nurse consultant and then sent to the peer reviewer, Dr. Silkes, along with other relevant documents, including the worksheets generated by the claims sample process. When the medical records were returned to the Agency with the peer's comments, the Agency calculated the amount of the overpayments. The peer reviewer's role is to make determinations of medical necessity and levels of service. Decisions as to the lack of documentation are made by a combination of the peer reviewer and the Agency nurse consultant. After the agency and peer review were completed, a Preliminary Audit Report ("PAR")(Pet. Ex. 4) was sent to Respondent on December 14, 2015. After the receipt of the PAR, Respondent had the opportunity to submit additional medical records to the Agency for consideration. This was done by Respondent. The FAR (Pet. Ex. 5) was then issued on March 15, 2016. The FAR made multiple findings delineating the reasons for the overpayments, including improper "consult" claims, reductions for levels of service, insufficient or no documentation to support claims, improper claims for global procedures, errors in coding, and lack of medical necessity for certain procedures. Pet. Ex. 5, pp. 88-90. Subsequent to the FAR and prior to the final hearing, the review of additional information provided to the Agency by Respondent resulted in a reduction of the alleged overpayment to $121,641.42. JPS ¶ A; Pet. Ex. 19. Rule 59G-9.070(7)(e) addresses sanctions for failure to comply with the provisions of the Medicaid laws. For a first offense, there is a $1,000.00 fine per claim found to be in violation. AHCA initially found 86 violations. Pet. Ex. 6. After the state mandated cap of 20 percent was applied, the initial fine was set by the Agency at $27,850.13. Subsequently, based on the allowance of some claims submitted by Respondent with additional documents or clarification, the fine amount was reduced to $24,328.28. Pet. Ex. 19. The Agency considered all of the statutory factors when assessing the sanction. Olmstead considered the violations in this case to be "typical" and "nothing extraordinary" and did not enhance or reduce the sanctions. The Agency incurred costs in its investigation of this matter. However, costs have not yet been fully determined. Pet. Ex. 5, p. 150B. Based on Olmstead's experience, the audit was conducted in a routine and acceptable manner. Identification of the Disputed Claims Notably, in the JPS and again at hearing, the parties agreed that only the following "Disputed Claims" required factual findings and conclusions of law by the undersigned: Recipient #2 Claims 1, 2 and 3 Recipient #3 Claims 5, 11, 12, 13, 17, 18, 20, 21, 22, 24, 26, 28, 35 Recipient #25 Claim 11 Recipient #29 Claim 6 Recipient #30 Claims 1, 2, 4 None of the other audit determinations made by AHCA were challenged by Respondent at the hearing.1/ The parties agreed at the start of the hearing that the downward adjustments made by AHCA to Recipient #2, Claims 1 and 2, were agreed to and would not be disputed. The worksheets, as revised, now showed the peer's determination of those claims as properly payable at Current Procedural Terminology ("CPT") Code 99213. Pet. Ex. 19. Evaluation and Management Claims Many of the "Disputed Claims" are for E&M services, which are office visits, and specifically in this audit, office visits for established patients of Respondent. In order to properly code and bill the appropriate level of E&M services for an encounter with an established patient, the medical records must establish that two of the three key components (i.e., history, examination, and medical decision- making) meet or exceed the stated requirements of that level of service. In some cases, time spent with the patient is considered a key factor as well. Pet. Ex. 13, p. 271. For encounters with established patients, the CPT Code (2012) provides in pertinent part, as follows: 99212 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A problem focused history;A problem focused examination;A problem focused examination. 99213 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: An expanded problem focused history;An expanded problem focused examination;Medical decision making of low complexity. 99214 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A detailed history;A detailed examination;Medical decision making of moderate complexity. Pet. Ex. 13, p. 273. There was no evidence to suggest that the CPT codes for these procedures changed at any time during the audit period between 2012 and 2014. As a result, the CPT codes admitted were properly relied upon by the parties. Pet. Ex. 13. As mentioned, the key components of coding an E&M encounter are the examination, the history, and the medical decision-making required of the physician. Pet. Ex. 13. The CPT codes from 99211 to 99215 are also referenced as Levels 1 through 5 with the main difference being the complexity and extent of the visit and examination. Counseling and/or coordination of care with the patient and/or family can be a controlling factor in coding the proper level. However, the CPT code notes provide that the "extent of counseling and/or coordination of care must be documented in the medical record." Pet. Ex. 13, p. 271. The Florida Medicaid Provider General Handbook provides that "[m]edical goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical records." Pet. Ex. 9, pp. 169-173.2/ The undersigned undertook a careful and meticulous review of the record. This included reading Transcript testimony, reviewing manuals and handbooks provided, and comparing and cross-referencing the hearing testimony to the worksheets and handwritten medical notes and other records prepared by Respondent. Findings of Fact on Disputed Claims Recipient #2, Claim 3. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-2, p. 376-A. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a foreign body, and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is also supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies). This restriction does not place any time limit when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90- or ten-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion of miscellaneous services or did not otherwise qualify for reimbursement (Pet. Ex. 13, p. 199). The claim was properly denied. Recipient #3, Claim 5. Respondent submitted a claim using CPT Code 31237 for services on January 30, 2012, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 376 (worksheet) and 387 (medical record). Dr. Silkes denied this claim because she could not find documentation to support the procedure. However, there is documentation at Petitioner's Exhibit 15, page 387, included in a contemporaneous office note for January 30, 2012. It indicates on the fifth line that Respondent performed a nasal endoscopy ("nasal endo") and that he did bilateral debridement of the sinuses. He found crusting on the right, and the right sphenoid sinus was narrow. Dr. Silkes testified that she may have misread the nasal endo reference and that Dr. Carreno may be correct on that point. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 11. Respondent submitted a claim using CPT Code 31231 for services on June 13, 2012, nasal endo. Pet. Ex. 15, pp. 377 (worksheet) and 388 (medical record). Dr. Silkes denied this claim because she did not find anything in the medical record to support billing for this service. The supporting medical note documents a nasal endo in the middle of the notes. Respondent wrote in the assessment and plan ("A/P") "looks good but mucocele of right sphenoid." Also, he testified that if he did not do the endoscopy, he could not have seen the right sphenoid. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 12. This claim was adjusted from CPT Code 99214 to 99212 by Dr. Silkes. She concluded that the medical records failed to properly document an examination and the medical decision-making was straightforward. Pet. Ex. 15-3, p. 377. The undersigned credits and finds more persuasive AHCA's evidence and finds that the code should be reduced to CPT Code 99212. Recipient #3, Claim 13. This claim was denied by AHCA on the basis that the examination of July 30, 2012, was included within a global surgical fee package. The surgery was performed on August 13, 2012, after the decision to perform the surgery was made on July 16, 2012. Pet. Ex. 15-3, pp. 378 and 389. The Physicians Services Coverage and Limitations Handbook (Pet. Ex. 11, p. 199) provides as follows: Evaluation and management services, subsequent to a decision for surgery visit, that are limited and focused to determine the health of the individual prior to surgery are included in the global surgery package and may not be billed separately. The primary purpose of the visit on July 30, 2012, was an examination to determine the health of the individual. The patient visit was limited in scope and should be included in the global surgical package. The surgical decision was made prior to this encounter, and the surgery occurred after it. The undersigned credits and finds more persuasive ACHA's evidence and finds that the claim was properly denied. Recipient #3, Claim 17. Respondent submitted a claim for services performed on January 14, 2013, office outpatient visit. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this from CPT Code 99214 to 99212, because "only nasal examination was performed with cultures and he [the patient] was told to return for a full examination." She said the history was problem focused, the exam was problem focused, and the decision-making was straight forward. Both Dr. Carreno and his coding witness, Lorraine Molinari, pointed out that the record says that the visit lasted "30 minutes." This factor justifies a claim under CPT Code 99214. Also, the visit involved a more detailed and extensive examination of the nasal areas by Respondent. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the amount of time devoted to this visit. It was properly coded as CPT Code 99214. Recipient #3, Claim 18. Respondent submitted a claim using CPT Code 99214 for an office outpatient visit on February 13, 2013. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this to CPT Code 99213, opining that Dr. Carreno only performed an expanded problem focused history, expanded problem focused examination, and the decision- making was of low complexity. Dr. Carreno characterized this patient as one of the most complicated medical cases he has handled. The patient had a myriad of medical problems related to his ENT systems. Dr. Carreno and Molinari stated that the visit included an extensive conversation with the patient and his mother, and he also had to review and consider information from Dr. Ramos (immunologist's) notes. Dr. Carreno documented a left maxillary sinus suctioned under endoscopy. The extent of his note and documentation is reflective of a more extensive and complex examination and visit. Molinari opined that it should be CPT Code 99214. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the complexity of the examination. It was properly coded as CPT Code 99214. Recipient #3, Claim 20. This claim was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that the examination was only problem focused ("nasal exam only") and that there were no other records that would support the higher level of services claimed. Pet. Ex. 15-3, pp. 379 and 393. Additionally, there was no documentation to support a higher level claim under CPT Code 99214, nor was the use of an endoscope documented. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and ACHA. The claim was properly reduced to CPT Code 99213. Recipient #3, Claim 21. Respondent submitted this claim using CPT Code 31231, a nasal endo code. Pet. Ex. 15-3, pp. 379 and 393. Dr. Silkes testified she did not find any documentation in the record that would show that an endoscopy was performed on that date, but did allow an office visit for the same date where a nasal exam was performed (Claim 20, adjusted from CPT Code 99214 to 99213). The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily for failure to properly document that an endoscopy was performed. Recipient #3, Claim 22. Respondent submitted a claim using CPT Code 99214 for services on June 17, 2013, office outpatient visit. Pet. Ex. 15, pp. 379 (worksheet) and 393 (medical record). Dr. Silkes testified that she reduced this to CPT Code 99213 because only a nasal examination was done which is a problem focused examination. She concluded that the ear, nose, and throat were not examined. Dr. Carreno testified that it was not only a nasal exam. His contemporaneous notes reference an "endoscopic debridement" on the third line, which means he used an endoscope to see in the nose and clean fungal content out with suction and graspers. Molinari opined that the visit should remain CPT Code 99214 because the medical decision-making reflected in the note was at least moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of an endoscope and performing the debridement procedure were sufficiently documented. The services performed supported coding as CPT Code 99214. Recipient #3, Claim 24. This claim by Respondent was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only a nasal examination was done" and that the examination and history were both either problem focused or expanded problem focused. Pet. Ex. 15-3, pp. 379 and 394. Respondent's witness, Molinari, agreed with Dr. Silkes' adjustment. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily because the visit only involved a less complicated nasal examination. Recipient #3, Claim 26. Respondent submitted a claim using CPT Code 99214 for services on January 8, 2014, office outpatient visit. Pet. Ex. 15, pp. 380 (worksheet) and 395 (medical record). Dr. Silkes down-coded it to CPT Code 99213 because "only the nose was examined." However, Dr. Carreno testified that he performed a fiberoptic laryngoscopy, using an endoscope, to inspect for any fungal debris. This was sufficiently documented in his contemporaneous office notes. He also used the scope to view the nasopharynx. His notes also reflect that a physical exam (PE) was performed. Molinari felt the claim should remain CPT Code 99214 because the medical decision-making was of moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of a scope to inspect the nasal passages and nasopharynx were sufficiently documented. The services performed supported his coding as CPT Code 99214. Recipient #3, Claim 28. The claim submitted was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only the nose was examined" and that there were no other records that would support the higher level. Pet. Ex. 15-3, pp. 380 and 395. Further, there was no documentation that an endoscope was used. The undersigned credits and finds more persuasive the evidence from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213, primarily because the visit involved a less complicated nasal examination. Recipient #3, Claim 35. Respondent submitted a claim under CPT Code 31237 for services on April 30, 2014, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 381 (worksheet) and 395 (medical record). Dr. Silkes denied this claim because she felt that this was included in the global surgery package for the septoplasty that was performed on April 21, 2014. A "septoplasty" is where you move the septum in the nose if it is causing problems with sinuses or breathing. In her view, Claim 35 was a normal post- operative visit, namely, to remove the splint. Dr. Carreno testified and conceded that "yes, I did remove the splints, but I also needed to place the endoscope to assess the sinus surgical site. And not only did I assess it, but I cleaned it and debrided it, and it clearly said cleaned, debrided, endo shows." Dr. Carreno acknowledged that a septoplasty procedure has a 90-day global period, but testified that a global surgery package does not apply to a sinus endoscopy and debridement following the sinus surgery. The undersigned credits and finds more persuasive the evidence presented by Respondent. It was medically prudent and necessary to use an endoscope post-operatively for inspection and debridement, and this was sufficiently documented. The services performed supported coding as CPT Code 31237. Recipient #25, Claim 11. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-25, p. 782. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." This is found under bullet point 6 entitled "Miscellaneous Services and Supplies." This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #29, Claim 6. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-29, p. 830. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains. . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies"). This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #30, Claim 1. This claim was adjusted down from CPT Code 99214 to 99213 by Dr. Silkes. She opined that both the history and examination were problem focused and that the decision-making was straightforward. Pet. Ex. 15-30, pp. 856 and 861. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly adjusted to CPT Code 99213. Recipient #30, Claim 2. This was submitted under CPT Code 69210. Dr. Silkes denied the claim citing a lack of documentation to show that any cerumen or ear wax was actually removed. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of cerumen was not properly documented, and the claim should be denied. Recipient #30, Claim 4. Respondent submitted a claim for services using CPT Code 99214 for services on May 16, 2012, Office/Outpatient Visit. Pet. Ex. 19 (no Bates stamp numbers, as this was a late submission). After reviewing several late-filed documents from Respondent, Dr. Silkes down-coded this to CPT Code 99213 because there was an expanded problem focused history, there was a problem focused examination, and medical decision- making was of low complexity. Dr. Carreno explained that the claim should be allowed as CPT Code 99214 because he examined four separate body systems or areas. He examined the throat due to enlarged tonsils and enlarged adenoids, he examined the ear for infection, he took the patient's temperature and weight in connection with sleep apnea, and he examined the nose. He also rescheduled the patient for surgery and discussed the risks and benefits of surgery with the parents. Molinari testified that it should be allowed as a CPT Code 99214 because the decision-making was, at least, of moderate complexity, including a detailed examination of pallet, tonsils, and sinuses, as well as explaining the risk and benefits of surgery to the parents. The undersigned credits and finds more persuasive the evidence presented by Respondent. This visit involved a more detailed and extensive examination of the patient and justified a claim using CPT Code 99214.
Recommendation Based on the evidence covering the Disputed Claims during the audit period of January 1, 2012, through December 31, 2014, it has been established by a preponderance of the evidence that Respondent was overpaid for certain services not covered by Medicaid. Those overpayments are listed in paragraph 123 in the Conclusions of Law section. The undersigned recommends that the Agency for Health Care Administration enter a final order ordering Respondent to repay the recalculated amount. Considering the facts proven at the hearing, the Agency has established by clear and convincing evidence that Respondent failed to comply with the provisions of the Medicaid law for certain claims. Those overpayments are also listed in paragraph 123 in the Conclusions of Law section. It is recommended that the Agency recalculate and impose a sanction commensurately lower than the previous sanction, pursuant to rule 59G-9.070(7)(e). Pursuant to section 409.913(23)(a), the Agency's request of an award of reasonable investigative, legal, and expert witness costs as the prevailing party is granted, in part, based on a limited number of violations outlined in paragraph 123. If the amount of the costs cannot be agreed to, then the Agency may request a hearing for the establishment of the costs. DONE AND ENTERED this 22nd day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 22nd day of May, 2017.
Findings Of Fact At all times material herein, the Respondent was a licensed Health and Legal Expense Insurance agent in the State of Florida. By criminal indictment filed October 4, 1984, Respondent was charged with the crimes of conspiracy to commit fraud, use of the mails to defraud and the use of a fictitious name or address to defraud. After a jury trial, Respondent was convicted of the offenses of conspiracy to commit fraud, in violation of Title 18, USC, Section 1341, Title 29, USC, Section 501(c), all in violation of Title 18, USC, Section 371, as charged in Count One of the Indictment and mail fraud, all in violation of Title 18, USC, Sections 1341 and 1342, as charged in Counts Two through Five of the Indictment. The American Federation of State, County and Municipal Employees (AFSCME) was at all times material herein a labor union affiliated with the AFL- CIO, a labor organization as defined in Section 402 of Title 29, United States Code. Florida Public Employees Council 79 (Council 79) was at all times material herein a labor union affiliated with AFSCME and the AFL-CIO, a labor organization as defined in Section 402 of Title 29, United States Code. The scheme upon which the Respondent's conviction rests, was directed toward both AFSCME and Council 79. At all times herein, Respondent was employed by either AFSCME or Council 79. Upon Council 79 being chartered, Respondent became its Tallahassee Regional Director. The record does not reflect any persons as victims of the scheme upon which the Respondent's conviction rests other than AFSCME and Council 79. Respondent's participation in the schemes upon which his conviction rests was as follows: (a) at the directions of William Van Zandt, Assistant to Jerry Wurf, President of AFSCME, and Thomas J. Fitzpatrick, President of Council 79, Respondent enrolled David J. Michalski as an employee of Council 79 and met with David J. Michalski in November 1979 to set up an address where payments on expense account vouchers and salaries would be delivered, and assisted David J. Michalski in opening an account at the bank for this purpose, and; (b) contacted George Albert Cuneo, Jr., President and owner of Cuneo Advertising, Inc., and requested that Cuneo mail bills for printing a Council 79 newspaper directly to G.A.D., Inc. G.A.D., Inc. was a corporation used by defendants other than Respondent to funnel inflated bills for advertising and public relations for payment by AFSCME or Council 79. The record is clear that Respondent had no knowledge of the schemes, was following orders of his superiors, and received no money, property, or other consideration for his participation in the schemes. The only evidence in the record concerning the Respondent's participation in the mail fraud is that the Respondent did apparently mail some matters concerning David R. Michalski's expense vouchers. Whether he mailed anything concerning the "kick-back scheme" or the inflated bills for advertising and public relations is not clear from the record. Respondent had never been convicted of a crime before this conviction. Respondent was sentenced to three (3) years on Count One but served only eight (8) months. The sentences in Count Two through Five were suspended and Respondent was placed on probation. Respondent was placed on probation for six (6) months on Counts Two through Four which began immediately and was placed on three (3) years probation on Count Five which was to run consecutively with the sentence imposed in Count One. After serving the eight (8) months of his sentence, Respondent returned to Tallahassee and enrolled in, and completed, a course in insurance at Tallahassee Community College hoping to further expand his existing insurance license. The record is clear that Respondent's reputation for truth and veracity in the community is good despite his conviction, and the Respondent enjoys a good reputation as far as his integrity in dealing with others in concerned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Petitioner, Department of Insurance, enter a Final Order dismissing all counts of the Administrative Complaint filed herein. Respectfully submitted and entered this 31st day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4404 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3 as clarified. Adopted in Finding of Fact 5 with the exception of the phrase "with in excess of ten numbers" which is rejected as immaterial since there was no substantial competent evidence in the record to show that any individual member had been defrauded or that any conspiracy to defraud was directed at any individual member. Rulings on Proposed Findings of Fact Submitted by the Respondent 1. Adopted in Finding of Fact 3. 2-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 9. Adopted in Finding of Fact 7. Adopted in Findings of Fact 9 and 11. Adopted in Findings of Fact 9 and 11. Adopted in Findings of Fact 9 and 11. Adopted in Finding of Fact 9. Adopted in Findings of Facts 9 and 11. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 15. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 13. 19.-20. Adopted in Finding of Fact 16. COPIES FURNISHED: Robert V. Ellias, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Ben R. Patterson, Esquire PATTERSON and TRAYNHAM 1215 Thomasville Road Post Office Box 4289 Tallahassee, Florida 32315 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue in the case is whether Tracy Jean (Petitioner) was the subject of unlawful discrimination by Florida Hospital Medical Group (Respondent)1/ in violation of chapter 760, Florida Statutes (2015).2/
Findings Of Fact The Petitioner is a black female, who is qualified for employment as a Florida-licensed registered nurse (RN). The Respondent is an “employer” as defined by the Florida Civil Rights Act of 1992. At a job fair held on June 9, 2015, the Petitioner met representatives from the Respondent, including Tracy Decker, a manager, and Sarah Emerson, a nurse recruiter, and was interviewed by them in relation to potential employment. Ms. Emerson subsequently called the Petitioner to express an interest in hiring the Petitioner as an RN, and to encourage her to submit an application. On June 23, 2015, the Petitioner submitted an electronic employment application for a position as an RN at Florida Hospital. The Respondent’s online application form included questions calling for disclosure of an applicant’s criminal history. Although the Respondent does not automatically reject an applicant who discloses previous criminal activity, the failure to disclose such activity may be deemed by the Respondent to be a falsification of the information, and may disqualify an applicant from employment. The Respondent’s online application form states as follows: I understand that I will not be automatically disqualified from possible employment if, in response to application questions, I disclose criminal records information. I also understand that any false, misleading, incomplete or omitted information in response to application questions will result in ineligibility for employment or termination of employment as it will be deemed falsification of information. As a result, I hereby confirm that if I failed to disclose any criminal records information, it is because it is not required in response to the application’s questions (e.g., parking tickets) or it is because I am certain that the information has been expunged and thus, will not show up during a background check. Finally, I understand that my mistaken belief about whether the response is required or whether the information has been expunged is not a defense to falsification. Accordingly, if I erroneously omitted information, I will be ineligible for employment or my employment will be terminated for falsification. * * * Employment is subject to completion of pre- employment procedures, including but not limited to; verifying employment/personal references; conducting a background investigation/criminal record check; verifying driving record (if appropriate); and confirmation of licensure or registration. In relevant part, the Respondent’s online application form stated as follows: Have you served any of the following for any criminal offense? (check all that apply): pretrial diversion * * * probation (any type) * * * Any other type of alternative, deferred, suspended, postponed or conditional prosecution, adjudication, disposition, sentence, program or release not listed above, please describe: (if not, type N/A) The Petitioner’s response was “N/A” indicating that she had not served any type of punitive sentence or alternative disposition for a criminal offense. On July 19, 2015, the Respondent extended a written offer of employment to the Petitioner. The letter was issued by Erika Cardona-Geis, a recruiter for the Respondent. The offer was contingent on the completion of various requirements, including a background check. For the Respondent’s purposes, an acceptable background check is one that corresponds with the information disclosed on a potential employee’s application. The Respondent’s focus is on the truthfulness and integrity of potential employees, especially those such as RNs employed to provides services and medications to patients. The Respondent utilized a third-party vendor to perform background checks on potential employees. The Respondent provided the vendor’s website link to the Petitioner so that she could submit her information for the background check, and the Petitioner did so. On July 27, 2015, the Respondent received the results of the Petitioner’s background check from the vendor. The Petitioner’s background check revealed criminal activity that had not been disclosed by the Petitioner in her employment application. According to the background check, the Petitioner was charged with separate counts of Grand Theft, Obstruction of Fire Equipment, and Criminal Mischief on September 7, 2008, in Broward County, Florida (Case No. 08-021191CF10-A). The charges resulted in the Petitioner being placed on probation for 15 months and required to make restitution. Adjudication of guilt was withheld. The background check also revealed that the Petitioner was charged with solicitation to commit prostitution on August 16, 2010, in Miami-Dade County, Florida (Case No. B-10- 042025-B). The Petitioner entered a pre-trial diversion program, and the charge was nolle prossed. The Respondent’s formal policy provided that falsification of background check information in an employment application may result in an applicant being deemed ineligible for employment. Nonetheless, when an applicant’s background check revealed information other than that disclosed on an employment application, the Respondent’s standard procedure was to allow an applicant an opportunity to submit additional information to explain the discrepancy, so that the Respondent could assess the reason for nondisclosure rather than automatically reject the applicant. Because the Petitioner’s background check included information inconsistent with that submitted by the Petitioner in her employment application, Ms. Cardona-Geis contacted the Petitioner and offered her the option to submit a written statement regarding the discrepancies and to provide related court records. In response, the Petitioner submitted a letter of explanation dated July 28, 2015, and related court records, as well as a letter from the Florida Board of Nursing and a letter purportedly written by an attorney. Ms. Cardona-Geis provided the Petitioner’s response and materials to Karla Muniz, the Respondent’s human resources director. Ms. Cardona-Geis also provided the Petitioner’s response and materials to Lorraine Pitre, a lawyer and member in good standing of the Florida Bar, employed by the Respondent as an employee relations consultant. Ms. Pitre was responsible for providing counsel and advice to the management of the Respondent’s Human Relations Department. She was also directly involved in the creation of the Respondent’s human resource policies and practices, including those relevant to the Respondent’s consideration of the Petitioner’s employment application. Ms. Pitre was the Respondent’s employee specifically assigned to review matters involving employment background check discrepancies. Ms. Pitre reviewed the Petitioner’s letter of explanation, wherein the Petitioner stated, in relevant part, as follows: The charges were not disclosed because I sealed & expunged the cases. Under the advice of my attorney, he told me there was no need to disclose this information once I went through the expungement process. Ms. Pitre reviewed the court documents submitted by the Petitioner and publicly-available records accessible through the Broward County Clerk’s Office and determined that the Broward County charges that resulted in the Petitioner’s probationary sentence had not been sealed or expunged. Ms. Pitre also reviewed the letter submitted by the Petitioner and purportedly written by an attorney. The letter, dated August 4, 2015, stated as follows: The set forth individual has retained my services to expunge and seal the mentioned cases. I am not at liberty to disclose the information, but I am aware that my client has revealed her past indiscretions. The client, Tracy Jean, has honestly answered “no” to the set forth employment questions of convictions. Furthermore, my client informed me that she has submitted the appropriate documents and has revealed this information to you, which under Florida Statutes is not necessary. Tracy has honored all of your request [sic], has not knowingly lied on the application, and only wants to be looked at as a professional. The letter contradicted the Petitioner’s assertion that the charges had been expunged or sealed prior to the submission of her application for employment. Although the letter identified the writer as “Eric Volz, ESQ,” the letter was not printed on letterhead and was unsigned. Ms. Pitre, who routinely interacted with attorneys in private practice, was concerned about the authenticity of the letter. Ms. Pitre discussed her findings and concerns with Ms. Muniz and with Ms. Cardona-Geis. Based on the Respondent’s review of the Petitioner’s application, the background check information, and the materials subsequently submitted by the Petitioner, the Respondent determined that the Petitioner had submitted false responses to the criminal background history questions on the application. The Respondent revoked the conditional offer of employment previously extended to the Petitioner. There is no evidence that the Petitioner’s race was a consideration in the Respondent’s decision to revoke the conditional offer of employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 25th day of August, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 August, 2016.
Recommendation Based on the foregoing Finding of Fact and Conclusion of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 28th day of February, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of February, 1990.
The Issue The issue in this proceeding is whether William Jeffery Mishko's application for qualification as general lines agent should be denied for the reasons stated in the letter of denial: nolo contendere plea to a felony failure to reveal that plea on the application, based on the provisions of subsections 626.611(1)(2) and (7) F.S. and subsection 626.621(8) F.S.
Findings Of Fact William Jeffery Mishko, 1649 Algonquin Trace, Maitland, Florida, submitted his application, dated December 26, 1986, to the Department of Insurance, seeking qualification to take the examination for licensure as a general lines agent or solicitor. At the time that he filled out the application he was attending an insurance school, Hilda Tucker School, in Ft. Lauderdale, Florida. It was the first day of class and the students were told to get their applications in for the examination. He hurriedly completed the form and mailed it. A series of questions on the form address criminal history of the applicant. Those questions and Mishko's responses are: 8. Have you ever been charged with a felony? Yes if YES give date(s): 5/23/84 What was the crime? controlled Stubstnce[sic] Where and when were you charged? Winter Springs C.C. Tuskawilla Did you plead guilty or nolo contendere? No Were you convicted? No Was adjudication withheld? x Please provide a brief description of the nature of the offense charged. [writing struck through] controlled substance If there has been more than one such felony charge, provide an explanation to each charge on an attachment. Certified copies of the information or indictment and Final Adjudication for each charge is required. ---No Mishko testified that he started to explain the whole story on 8.(f), but there was insufficient space. He did not attach an additional sheet and did not attach a copy of the court documents as they were not available to him at the time. Later, the agency returned his application to him with the incomplete items circled. The question at 8.(c) was circled, as well as others relating to residence and employment in the past five years. Mishko then went to the Seminole County courthouse, obtained the certified copies and sent them to the agency. The court records reveal that on January 13, 1986, in case no. 85-999 CFC, in circuit Court of Seminole county, William Jeffery Mishko entered a plea of nolo contendere to possession of a controlled substance. Adjudication was withheld and he was placed on probation for three years. Mishko had been arrested on May 23, 1985, with two friends. He said that he was at work at the golf and country club and two friends came to see him with a small amount of cocaine. The police found them in the golf cart shed and arrested them for possession of cocaine and paraphernalia. The information, dated August 12, 1985, alleges a violation of section 893.13 F.S.. Mishko attributes the errors in the answers on the form itself to his haste to get the application filed so he could take the examination as soon as he finished the course in Ft. Lauderdale. When he followed up the application with the certified court records, he did not amend the application form with the accurate date of arrest or with the correct answer to 8.(c).
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Insurance enter a final order denying William Jeffery Mishko's application based upon subsection 626.621(8) F.S. DONE and RECOMMENDED this 20th day of July, 1987 in Tallahassee, Florida. MARY CLARK 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 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1254 The following constitute my specific rulings on the parties proposed findings of fact. Petitioner's Proposed Findings of Fact Adopted in paragraphs #1 and #2. Adopted in paragraph #2. Adopted in paragraphs #3 and #4. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph #3. Adopted in paragraph 4. Rejected as irrelevant. See paragraph 4, Conclusions of Law. 7-8. Adopted in paragraph #5. 9-11. Adopted in substance in paragraph #4. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Gerald Rutberg Esquire Post Office Box 977 Casselberry, Florida 32707 Rainell Y. McDonald, Esquire Richard W. Thornburg, Esquire Department of Insurance Room 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent's request for a hearing to contest a Stop-Work Order and Amended Order of Penalty Assessment (Amended Assessment) issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Division), was timely filed by virtue of the doctrine of equitable tolling.
Findings Of Fact The Division is the state agency responsible for enforcing the various requirements of chapter 440. Respondent is a Florida limited liability company engaged in the construction business. Its offices are located at 1717 West Memorial Drive, Lakeland, Florida. On April 6, 2015, while driving in Spring Hill, Florida, Dale Russell, a Division compliance inspector, observed three individuals reroofing a single-family residence located at 1006 Chastile Drive. The three individuals confirmed that they were employed by Respondent's construction firm. Mr. Russell contacted Mr. Hutchinson, the owner of the corporation, who confirmed that the three individuals were employed by his firm and that the three were not covered by workers' compensation insurance. Because Mr. Hutchinson was in Lakeland that day, a Stop-Work Order was not served. However, the two agreed to meet at a later date in the Division's Tampa District Office. A Stop-Work Order and request for business records was served on Mr. Hutchinson by another investigator on April 8, 2015. The Stop-Work Order contained an Order of Penalty Assessment, which explained how a penalty is calculated, but gave no specific amount pending a review of Respondent's financial records. On May 20, 2015, an Amended Assessment was prepared indicating that Respondent was being assessed a total penalty of $96,364.78 for failing to secure the payment of workers' compensation insurance. The Amended Assessment was personally served on Respondent by Mr. Russell on May 26, 2015, when Mr. Hutchinson visited the Tampa District Office. The standard assessment form contains two important deadlines that must be met by the employer. On the first page, the form states that pursuant to Florida Administrative Code Rule 69L-6.028, "if the Division imputes the employer's payroll, the employer shall have twenty business days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer's payroll for the period requested in the business records request for the calculation of the penalty." It goes on to state that these records may be used to recalculate the employer's penalty "only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect." This means that Respondent had until June 23, 2015, in which to provide business records to the District Office. On the second page of the Amended Assessment is a section entitled Notice of Rights (Notice). Among other things, it states that if the employer requests a hearing, he "must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action." Notably, this timeframe is measured in calendar days, not business days, and means that if Respondent decided to request a hearing rather than providing additional financial records, the request had to be filed with, and received by, the Division no later than June 15, 2015. During his meeting with Mr. Hutchinson, the investigator explained the Amended Assessment, section by section. He specifically told Mr. Hutchinson that he had 20 business days in which to produce additional business records. He also told him that he had 21 calendar days in which to request a hearing. Mr. Russell is an experienced investigator, having worked as a deputy sheriff for 28 years before working as a Division inspector. He has issued numerous notices and is very familiar with the deadlines. Although Mr. Hutchinson testified that he asked Mr. Russell to confirm that he had 21 business days in which to file his business records, and was told that this was correct, which differs from Mr. Russell's version of the conversation, the testimony of the experienced investigator is accepted as being the most credible on this issue. The undersigned finds that Mr. Russell correctly explained the ramifications of the two deadlines and he did not mislead Mr. Hutchinson. The facts here do not demonstrate equitable tolling. Even though he was given accurate information regarding the two deadlines, it is evident that Mr. Hutchinson, a lay person, either misunderstood what he was told or was just plain confused. Obviously, he did not read the instructions on the Amended Assessment before submitting his records. Faced with a potential $96,364.78 assessment, it is somewhat surprising that Mr. Hutchinson did not contact the Tampa District Office after the May 26 meeting to reconfirm the precise date on which the records (or request for a hearing) were due. Even at hearing, he admitted that he did not know the difference between submitting business records and requesting a hearing. Believing that he had 21 business days to provide business records, Mr. Hutchinson carried his records to the Tampa District Office on June 24, 2015, or one day past the deadline established in the Amended Assessment. He was told by a Division supervisor that the submission was untimely and he had waived his right to produce them. Even though it was now too late, she recommended that Mr. Hutchinson prepare a request for a hearing, which would be submitted to Tallahassee for legal counsel to review. Pursuant to her instructions, that same morning, Mr. Hutchinson prepared a handwritten, one-page letter requesting a hearing. According to Respondent, the assessment is based on missing checks that, if produced, would establish that no penalty assessment is warranted. At hearing, over the Division's objection, Respondent was allowed to introduce into evidence bank records and copies of checks. See Resp. Ex. 6-23. Although the Division has not yet reviewed them, it acknowledged that they may substantially reduce the assessment. Throughout this proceeding, Respondent's qualified representative has contended that the Amended Assessment is defective because it does not inform the employer that a qualified representative can represent its interests. The first paragraph of the Notice in both the Amended Assessment and the Stop-Work Order states that "you may be represented by counsel," but it makes no reference to a qualified representative. However, in the second paragraph, which provides information regarding the filing of a petition requesting a hearing, it states that the petition must contain "the name, address, and telephone number, and facsimile number of the attorney or qualified representative of the petitioner (if any) upon whom service of pleadings and other papers shall be made." While more clarity in the first paragraph of the Notice would be appropriate, there is sufficient information in the Notice, if read, to alert the employer that alternative representation is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent's request for a hearing was untimely. However, it is recommended that the business records provided by Respondent at hearing be reviewed and considered to determine the correct amount owed, if any. DONE AND ENTERED this 3rd day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 3rd day of February, 2016. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Trevor Sutor, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Jamison Jessup, Qualified Representative 557 Noremac Avenue Deltona, Florida 32738-7313 (eServed)
The Issue The issue to be determined is whether Petitioner's application for licensure as a resident life, including variable annuity and health insurance agent, should be granted.
Findings Of Fact The Department is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2003). On September 19, 2003, Petitioner filed an online application with the Department seeking licensure as a resident life, including variable annuity and health insurance agent. The online application form filled out by Petitioner included the heading title: Florida Department of Financial Services Bureau of Agent and Agency Licensing Application for New License The first page of the online application includes space for "Licenses Applied for," in which the designation "02-15 – Resident Life Including Variable Annuity & Health Insurance Agent" was inserted. Also referred to on the first page of the application are the "Application Fee," "License Card Fee," and "Exam Fee" that would be due. The final section of the online application, titled "Step 8: Summary," is a two-page document that must be printed and personally signed by an applicant. The second page of the Summary document contained the following language: Applicant Affirmation Statement I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief; that I understand the Laws of Florida and the rules promulgated by the Insurance Commissioner for the class of business for which I hereby request a license. . . . and [] that I have not withheld any information on myself that would in anyway affect my qualifications. * * * Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). (emphasis added) A space for the Petitioner's signature is provided immediately below the "Applicant Affirmation Statement." Petitioner admits that she read the online application, completed it, electronically sent it to the Department, physically signed the disclosure form and mailed it to the Department via U.S. Mail. The online application form filled out by Petitioner for the license at issue in this proceeding included the following question: [h]ave you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered the question in the negative. The criminal history records obtained by the Department during the application process revealed that in 1991, Petitioner was charged with three felony counts related to the sale of a controlled substance. Petitioner ultimately pled guilty to a single felony charge of possession of a controlled substance in State of Nevada v. Michelle Lee Whitman, Case No. C98783B. Petitioner was adjudicated guilty of the charge, given a one-year suspended sentenced, and placed on two years of probation. Petitioner completed her probation, and the state of Nevada restored her civil rights as of July 1, 2003. She was notified that her civil rights had been restored in a letter from the Nevada Department of Public Safety dated November 5, 2003. Neither the letter nor Nevada law contains any language relating to a right not to disclose a conviction to employers. In a letter to the Department following the denial of her application, as well as during her testimony, Petitioner asserted that Nevada law gave her the right to withhold the information concerning her prior conviction.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Petitioner violated Subsection 626.611(2), Florida Statutes (2003), and denying Petitioner's application for licensure, without prejudice for her to reapply as provided in the Department's rules. DONE AND ENTERED this 19th day of July, 2004, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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, 2004. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Michelle L. Lowe 791 Arthurs Court Tarpon Springs, Florida 34689 Honorable Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
