The Issue The issue in this case is whether the Respondent, Agency for Health Care Administration, is liable to Petitioner, Miriam Lara, M.D., for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is the agency of the State of Florida responsible for the administration of the Federal government's Medicaid program in Florida. Section 409.907, Florida Statutes. One of the duties imposed upon states in order to participate in the Medicaid program is the duty to terminate any approved Medicaid provider where the provider has been "convicted" of certain types of crimes. See Social Security Act, Section 1128(a)(1), 42 U.S.C. Section 1230a-7. In particular, 42 U.S.C. Section 1230a-7(a)(1) requires the mandatory exclusion from the Medicaid program of any individual or entity that has been "convicted" of a program- related crime: Any individual or entity that has been convicted of a criminal offense related to the delivery of any item or service under subchapter XVII of this chapter or under any State health care program. For this purpose, the term "convicted" is defined to include "participation in a . . . deferred adjudication, or other agreement or program where judgement of conviction has been withheld." 42 U.S.C. Section 1230a-7(i)(4). Petitioner, Dr. Miriam Lara, is a licensed medical doctor and an approved Medicaid provider in the State of Florida. On January 20, 1998, Dr. Lara was indicted for "Organized Fraud and Medicaid Fraud." A copy of the Arrest Warrant, Respondent's Exhibit 9, was provided to the Agency shortly after Dr. Lara's arrest putting the Agency on notice of the charges against her. On or about November 30, 1998,1 Dr. Lara entered into a "Deferred Prosecution Agreement and Speedy Trial Waiver" (hereinafter referred to as the "DPA") which was filed in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County. Dr. Lara agreed, in part, to the following in the DPA: I, [sic] understand that I have been tentatively accepted as a participant in the Pretrial Diversion Program, and that the charges against me will not be prosecuted so as [sic] long as I am a program participant in good standing and that my case will not come to trail during that time. While it is clear from the DPA that the charges against Dr. Lara were not to be prosecuted so long as she participated in the program, the DPA does not specifically state that the charges would be dropped if she completed the program. Although the DPA is not specific, the Office of the Statewide Prosecution and Dr. Lara intended, when they entered into the DPA that the charges would be completely dropped if Dr. Lara completed the Pretrial Diversion Program. On April 20, 1999, after Dr. Lara successfully completed the pretrial program,2 the Office of Statewide Prosecution nolle prossed all charges pending against her. In early 1999 the Agency became aware that Dr. Lara had entered into and completed some type of "pretrial program." Ellen Williams, a Medicaid/Healthcare Program Analyst for the Agency, was notified that Dr. Lara had completed what Ms. Williams understood to be a "pretrial intervention program." The Agency, through Ms. Williams, also became aware of the disposition of Dr. Lara's case some time during 1999. Ms. Williams was provided with a copy of a disposition record for Dr. Lara's case from the Clerk of the Circuit and County Court of the Eleventh Judicial Circuit of Florida. That disposition record, Respondent's Exhibit 11, states that the charges against Dr. Lara had been "NOLLE PROS . . ." on April 20, 1999. The Agency, through Ms. Williams, believed that all pretrial programs involved a program through which an individual charged with a crime could, by participating in the program, avoid being adjudicated "guilty" of the charged offense. Because the information contained on the disposition record provided to Ms. Williams indicated that the charges had been nolle prossed and, this appeared to be inconsistent with the Agency's belief that all pretrial programs result in adjudication being withheld, Ms. Williams attempted to find out precisely what had happened to the criminal charges against Dr. Lara. Ms. Williams first telephoned and spoke with Assistant Attorney General Hugo Acebo, whom she understood to be an attorney, about the matter. Ms. Williams was told by Mr. Acebo that Dr. Lara had entered into some type of pretrial program and that she had successfully completed the program. Ms. Williams did not recall being told by Mr. Acebo that the charges against Dr. Lara had been dropped. Nor did she recall being told that any plea had been entered by Dr. Lara or adjudication on the charges had been withheld. Consistent with the Agency's belief about the nature of pretrial programs, Ms. Williams assumed that Dr. Lara, by successfully completing the pretrial program, had merely avoided being adjudicated guilty of the offenses for which she had been charged. Ms. Williams did not understand that the charges against Dr. Lara had been dropped. On October 12, 1999, a Case Closing Report on Miriam Lara, M.D. (hereinafter referred to as the "Closing Report"), Case No. 04-96-03-0016, was issued by the Office of the Attorney General, Medicaid Fraud Control Unit, Fort Lauderdale Bureau. In pertinent part, the Closing Report states the following: According to Assistant Attorney General Hugo Acebo, Dr. Lara entered into a pretrial intervention (PTI) program, which she successfully completed in April 1998. The charges against her were then dropped. . . . (Emphasis added). Ms. Williams received a copy of the Closing Report. The Agency, therefore, had actual notice that the charges against Dr. Lara had been dropped, but Ms. Williams continued to incorrectly believe that, because the Closing Report indicated that Dr. Lara had entered into a "pretrial intervention (PTI) program, which she successfully completed . . . " she had been "convicted" of a criminal offense that is Medicaid program- related, consistent with the Agency's incorrect understanding of pretrial programs. Marie del Carmen Calzone, Esquire, who represented Dr. Lara at the time, spoke to Ms. Williams at least three times after the charges against Dr. Lara had been dropped. Ms. Calzone explained to Ms. Williams that the charges had been nolle prossed or dropped, that Dr. Lara had not entered any adverse plea to the charges, that "adjudication had not been withheld," and that Dr. Lara had not, therefore, been "convicted." Ms. Williams, however, incorrectly insisted that, because Dr. Lara had engaged in a pretrial program and successfully completed it, she had been "convicted" as that term is defined for Medicaid purposes. Based upon Ms Williams' understanding of the Agency's interpretation of the pertinent law, Ms. Williams drafted a letter notifying Dr. Lara that her participation in the Florida Medicaid program was being terminated (hereinafter referred to as the "Termination Letter"). The Termination Letter indicates that the decision to terminate Dr. Lara's participation in the Medicaid program was based upon the following: The Agency for Health Care Administration has received information from the Attorney General, Office of Statewide Prosecution that indicates the following: You were indicted on January 20, 1998, for Organized Fraud and Medicaid Fraud. On November 20, 1998, you entered into a pretrial intervention program, which resulted in a nolle prosequi of the charges. The Social Security Act at section 1128(a)(1) provides for the mandatory exclusion from participation in the Medicaid program of any individual or entity convicted of a criminal offense that is program-related. Section 1128(I)(4) defines convicted to include "when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Section 1902(p)(1) of the Social Security Act provides for state authority to take action to exclude providers from the Medicaid program for the reasons cited in section 1128. The Termination Letter was signed on or about April 13, 2001, almost two years after the charges against Dr. Lara had been nolle prossed. The Termination Letter was provided to Dr. Lara. Dr. Lara disputed the Agency's proposed action to terminate her participation in the Medicaid program and filed a Petition for Formal Hearing Pursuant to Section 120.569, Fla. Stat. (2001) and Petition for Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Petition for Formal Hearing"). The Petition for Formal Hearing was filed with the Division of Administrative Hearing on July 13, 2001. The matter was styled Miriam Lara, M.D. vs. Agency for Health Care Administration, and designated DOAH Case No. 01-2789. On September 18, 2001, realizing that Dr. Lara had not been "convicted" of any charges, the Agency filed a Notice of Withdrawal of Final Agency Action in the Underlying Case. Consequently, an Order Closing File was entered the same day, canceling the scheduled final hearing of the Underlying Case and closing the file of the Division of Administrative Hearings. As stipulated to by the parties, the Agency is an "agency" as defined in Section 57.111, Florida Statutes; the Agency initiated an administrative proceeding against Dr. Lara; the Agency was not a nominal party; and Dr. Lara, a "small business party" as defined in Section 57.111, Florida Statutes, was the "prevailing party" in the Underlying Case by virtue of the filing of the Notice of Withdrawal of Final Agency Action. The amount of reasonable attorney's fees incurred by Dr. Lara in the Underlying Case exceed $15,000.00. On November 26, 2001, Dr. Lara filed a Renewed Petition to Determine Amount of Attorney Fees and Costs Pursuant to Section 57.111, Fla. Stat. (2001) and Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Renewed Petition"). An Attorney Fee Affidavit has been attached to the Renewed Petition in which it is represented that attorney's fees in the amount of $18,279.50 were reasonably incurred in the Underlying Case, but also recognizing that fees and costs are capped at $15,000.00 under Section 59.111(4)(d)2., Florida Statutes. The Renewed Petition was designated Case No. 01-4669F. The pertinent information available to the Agency at the time it sent the Termination Letter to Dr. Lara included the following: Dr. Lara had been charged with criminal offenses that are program related in January 1998; Dr. Lara entered into a "Deferred Prosecution Agreement" in November 1998; Dr. Lara successfully completed the pretrial diversion program. At no time did she enter any plea to the charges and, therefore, there was no adjudication on the charges; and As a consequence of having completed the pretrial diversion program, all charges against her were dropped in 1999. All information necessary to determine that Dr. Lara had not been "convicted" of charges related to the Medicaid program was available to the Agency before action was taken to terminate her participation in the Medicaid program.
The Issue Whether Respondent's license to practice chiropractic should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 460, F.S., as set forth in the Administrative Complaint, dated May 11, 1984. This case arises as a result of charges filed by Petitioner in an Amended Administrative Complaint alleging that Respondent violated various provisions of Chapter 460, Florida Statutes, in performing procedures intended to terminate the pregnancy of a female patient in 1984, which resulted in a criminal conviction. At the hearing, Petitioner presented the testimony of Alfred Clum, a Department investigator, Charles E. Robinson, Chief Investigator, Bay County Sheriff's Office, Dr. March A. Wolf, obstetrician and gynecologist, Patty Smith, Deputy Clerk, Bay County Circuit Court, David W. Morrison and Barbara Morrison. Respondent testified in his own behalf. Petitioner submitted 6 exhibits in evidence and Respondent submitted a late-filed exhibit. Although the parties were provided time to file an agreed transcription of tape recordings as a late- filed exhibit, such exhibit has not been filed as of this date. At the commencement of the hearing, Petitioner amended paragraphs 11 and 17 of the Amended Administrative Complaint to correct scrivener's errors, thus changing the alleged violations of Section 460.413(1)(g) to 460.413(1)(q). Similarly, paragraph 15 was corrected from Section 460.1413(1)(u) to 460.413(1)(u). Although the parties were accorded a specified period in which to file post-hearing proposed findings of fact, they failed to do so.
Findings Of Fact Respondent Thomas F. Yancey was licensed to practice chiropractic in the State of Florida in 1966 and was so licensed at all times material to the administrative complaint herein. On May 15, 1984, an Order of Emergency Suspension was issued against Respondent's license by the Secretary of the Department of Professional Regulation which is still in effect. Respondent has never been licensed by the Florida State Board of Medical Examiners or Board of Osteopathic Medical Examiners. (Petitioner's Exhibits 1-4, Testimony of Respondent) In August 1983, Barbara D. Morrison visited Respondent's office in Panama City, Florida, for the purpose of obtaining an abortion. She paid him $150.00, but obtained a refund because, according to her, "it didn't work." Respondent testified that Morrison had come to him at that time for an abortion, but that he had told her "I don't do that," but that he could arrange it for her if she needed it. He admitted that he gave her an examination and told her that he suspected she was pregnant. He further testified that since Morrison had given his receptionist some money, he wrote her a check for $150.00. (Testimony of B. Morrison, Respondent, Respondent's Exhibit 1) During the latter part of March 1984, Morrison again went to Respondent's office and told him she wanted an abortion. He told her it would cost $150.00. She then went into a room in the office where she put on a gown, laid on a table and placed her feet in stirrups. Respondent "mashed" on her stomach to see if she was pregnant and then "gave me some kind of shot in my uterus." Respondent told her that he had used a saline solution. Morrison's ex-husband, David W. Morrison, went to Respondent's office while Barbara Morrison was there to loan her $60.00 for the abortion. He gave the money to Respondent's receptionist. He observed Barbara in a back room of Respondent's office, but no one else was there at the time. He later took her home. (Testimony of B. Morrison, D. Morrison) The injection that Barbara Morrison received from Respondent in March 1984 did not produce any results so she returned to his office about a week later on April 2, 1984. At that time, Respondent followed the same procedures as on the previous occasion and injected a solution into her again. According to Barbara Morrison, "it felt like it went to my heart. It hurt real bad. I asked him what he did and he said nothing. He said to lay down and I would be all right, but my body was swelling up." She was thereafter taken by a companion to the Bay County Medical Center where she received emergency treatment. On the same day, she was transferred to the Gulf Coast Hospital and treated by Dr. Mark A. Wolf, an obstetrician/gynecologist who had treated her for a "spontaneous" abortion in 1983. Upon examination, Dr. Wolf found that Morrison was experiencing lower abdominal pain and was also having some reaction to medication. There was no evidence of infection at the time. Ultrasound studies showed a viable pregnancy in the uterus with some fluid or swelling around the gestational sack. Morrison told him at the time that she had had an abortion attempted to be performed on her and that she believed that is what caused some of her problems. Dr. Wolf believed there was a significant risk of infection and admitted her to the hospital. She thereafter started to develop signs of infection and to spontaneously abort her pregnancy. He therefore completed the abortion by a dilation and evacuation of the uterus. (Testimony of B. Morrison, Wolf) On April 10, 1984, pursuant to an investigation conducted by the Bay County Sheriff's Office, Barbara Morrison returned to Respondent's office with an electronic transmitter concealed on her person that could be monitored by the law enforcement personnel in a nearby vehicle. She told Respondent that she needed another "shot" because the other one hadn't worked. They made an arrangement for her to return on the next day, April 11, for another abortion attempt. Morrison asked Respondent for a receipt for the money that she had paid and he wrote her one. On the following day, she returned, again equipped with a listening device, and went to Respondent's back room, put on a gown, and got on the table. She asked Respondent if he was going to give her a shot like the one he gave her the last time and he said yes. At this point, law enforcement personnel entered the room, observed Morrison sitting on the table with a gown on, and Respondent standing near the foot of the examination table with an instrument tray in his hand. The office was searched pursuant to a search warrant, but no medical records concerning Morrison were found. Respondent was placed under arrest at the time. On April 23, 1984, a departmental investigator, Dwayne Clum, talked to Respondent outside his office and provided him with a release of medical records which had been signed by Barbara Morrison. Respondent informed Clum that he had no medical records on Morrison. Investigator Clum accompanied the Sheriff's personnel when they entered Respondent's office on April 11, and took photographs of the examination table and tray containing various items including a metallic syringe, a vaginal speculum, and a metal cannula. However, there was no fluid in the syringe and the cannula, which can be used as an attachment to a syringe, did not fit the syringe on the tray. (Testimony of B. Morrison, Clum, Robinson, Wolf, Petitioner's Exhibit 5) On October 29, 1984, Respondent was found guilty of criminal abortion, performing an abortion in an unlawful place, and two counts of practicing medicine without a medical license. Imposition of sentence was withheld and he was placed on probation for a period of five years. The conviction was based on Respondent's activities in connection with Barbara Morrison on April 2 and 11, 1984. He was found not guilty of practicing medicine without a license in connection with his alleged performing of an internal examination of and injecting a solution into the reproductive organs of Morrison on or about March 15, 1984. (Petitioner's Composite Exhibit 7) Respondent denied at the hearing that he had seen Morrison in March of 1984. He claimed that she had left numerous calls at his house during the latter part of March, but that he had been at a seminar. He admitted that he saw her either on April 1 or 2, 1984, and performed a pelvic examination. He claimed that he had to wash her vagina prior to the examination and that there was pus oozing therefrom with a strong odor, and that he therefore took a large ear syringe and washed out the area with a saline solution. He told her at this time that he was not sure that she was pregnant. He further testified that she came back about a week later demanding to see him and that he told her that he could see her the next day. However, prior to any action on his part on that day, the police entered his office. He denied ever agreeing with her to perform an abortion or injecting anything into her uterus. He explained that the reason he had no medical records on Morrison was because the exams were strictly of an emergency nature. Respondent denied receiving any money from Morrison on April 2, 1984, but said that she "threw a five dollar bill" on his desk on April 11. Respondent's testimony in the above respects is not deemed credible and is accordingly rejected. (Testimony of Respondent) Although the term "obstetrics" normally deals with the outcome of a live birth, the aborting of a fetus or termination of pregnancy can also be included in the definition. Such an invasive procedure involving the injection of a substance into the uterus also might be encompassed within the term "surgery." Termination of a pregnancy constitutes the practice of medicine that only may be performed by a licensed physician or osteopath. (Testimony of Wolf)
Recommendation That the Board of Chiropractic issue a final order which suspends the license of Thomas F. Yancey to practice chiropractic for a period of two years, as a result of established violations of subsections 460.413(1)(n), (q) and (u), Florida Statutes. DONE and ENTERED this 14th day of January, 1986, in Tallahassee, Florida. THOMAS C. OLDHAM 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 14th day of January, 1986. COPIES FURNISHED: Fred Varn Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Roger D. Patterson, Esquire 17208 W. Hutchinson Road Panama City Beach, Florida 32407
The Issue The question presented is whether Respondent violated Section 456.072(1)(bb), Florida Statutes (2006), or Section 458.331(1)(nn), Florida Statutes (2006), by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a medical doctor licensed by the State of Florida, having been issued license number ME 70981. Respondent is also certified by the American Board of Internal Medicine with a subspecialty in interventional cardiology. No evidence was presented to indicate that Respondent has ever been disciplined by the Florida Board of Medicine. On March 12, 2007, Dr. Elsakr was caring for two patients at Halifax Medical Center (Halifax). Patient M.D. was an 84-year-old Caucasian female born on March 22, 1922. F.E. was an 82-year-old Caucasian female born on February 5, 1925. Both women were scheduled for cardiac procedures to be performed on March 12, 2007, but only F.E. was scheduled for a cardiac catheterization. M.D. and F.E. shared the same semi-private room at Halifax. During the night before the scheduled procedures, one of the patients asked to be moved away from the window, and as a result, the two patients' bed locations were reversed. Halifax had procedures in place related to the transport of patients from one area of the hospital to another. The policy required that a staff member referred to as a transporter was required to check at least two patient identifiers on the patient's arm band to confirm a patient's identity. The arm band contains four identifiers: the patient's name, date of birth, a medical record number and a visit number. While any of the four may be used, the patient's name and date of birth are preferred. Patient M.D. was supposed to be transported for a heart catheterization the morning of March 12. However, the hospital policy regarding patient identification was not followed, and the wrong patient, M.D. as opposed to F.E., was transported to the catheterization lab (cath lab). Apparently, the transporter relied on the room and bed placement of the patient as opposed to following the protocol for affirmatively checking the patient identifiers. Once a patient was transported to the cath lab for a procedure, Halifax had a separate "pause" or "time out" protocol designed to ensure that the correct patient was present and the correct procedure was performed. The procedure was designed to be consistent with standards provided by the Centers for Medicare and Medicaid Services (CMS) and the Joint Commission for Accreditation of Hospitals, and the practices used by other hospitals. After transport and before a sterile field was created, the patient would be prepared for the procedure. As part of that preparation, a nurse was supposed to verify the patient's identity and confirm with another staff member that the patient's chart was the appropriate chart. The chart would then be provided to the person referred to as the recorder located in the adjacent control room outside the sterile field. The control room is separated from the sterile field by a plexi-glass wall, through which the recorder can observe everything taking place in the cath lab. The recorder would create a chronological log of the procedure, documenting the exact time when events took place. The physician performing the procedure would not necessarily be in the cath lab at the time the nurse verified the patient's identity. The chronological log for M.D. does not indicate that the patient's identity was confirmed or if it was confirmed, who confirmed it. Once a patient was prepped and draped, and the sterile field created, the recorder would call out the patient's name, procedure, procedure equipment, site and side of the procedure to be performed. The accuracy of the information was to be confirmed by a staff member saying "yes" or nodding his or her head. This procedure was considered by the hospital to be its "time out" procedure. The physician would be present but not actually participate in the time out, and would observe the time- out taking place. In this case, although the recorder called out F.E.'s name and the procedure she was scheduled to have, M.D. was actually present. Notwithstanding this error, an unidentified staff member either nodded or verbally confirmed that the information recited by the recorder was correct. Dr. Elsakr arrived at the cath lab after the patient was prepped but before the time out called by the recorder. He was present, but did not verbally participate, in the time out process. Before it took place, he met with the recorder in the control room to review the medical chart prior to the procedure. The medical chart reviewed was for F.E. After the time out, Dr. Elsakr approached the patient and stood near her head. By this time, the patient was fully draped, with blankets and surgical drapes covering all of her body except the surgical entry area (in this case her groin) and a portion of her face. Dr. Elsakr spoke to the patient, calling her by the first name of the patient F.E., and telling her, "[F.], this is Dr. Elsakr. I'm going to get started with your heart cath. Okay?" This interaction was consistent with his standard practice before he began a procedure, in order to give patients a level of comfort. M.D. did not initially respond to the name F., but said "yes" in response to Dr. Elsakr's question. He then moved down to the groin area, again called her by name (F.E.'s first name), and told her what she would feel as he started the procedure. She nodded her head and the procedure was begun. A catheterization was completed on the right side of the heart and begun on the left side. At that point, staff reported to Dr. Elsakr that the patient was the wrong patient. The procedure was immediately stopped. Dr. Elsakr immediately informed the patient, the patient's daughter, and the patient's primary care physician. He also noted the mistake on M.D.'s medical chart. Halifax Hospital undertook an investigation of the events leading to the procedure. The purpose of its investigation was to determine whether there was a breach in hospital safety protocols and to prevent any recurrence of the error. Dr. Donald Stoner, Halifax's Chief Medical Officer, testified that the fault lay with hospital staff, and not with Dr. Elsakr, and that if he had been the doctor involved, he likely would have done the same things as Dr. Elsakr. Halifax accepted full responsibility for the incident and independently compensated the patient for the incident. The hospital also determined that it would be inappropriate for Dr. Elsakr to be subject to any discipline for the incident by Halifax with respect to his privileges. Immediately after discovering that the wrong patient had the heart cath, Dr. Elsakr instructed that the patient should not be charged in any way for the procedure. While patient M.D. clearly could have been harmed by having to undergo the procedure, information about her condition was obtained that was actually a benefit to her.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Medicine enter a Final Order finding that Respondent, Ashraf Elsakr, M.D., violated Section 456.072(1)(bb), Florida Statutes, and Section 458.331(nn), Florida Statutes by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b). As a penalty, it is recommended that the Board issue a letter of concern, and impose a $5,000 fine. In addition, Respondent should be required to obtain five hours in continuing medical education in the area of risk management, perform 25 hours of community service, and give a one-hour lecture on performing procedures on the wrong patient. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 30th day of June, 2010.
Findings Of Fact Respondent was originally licensed to practice medicine in Florida on August 15, 1956. Respondent's license was placed on inactive status on December 13, 1979, and currently remains on inactive status. Respondent's last known address is 6201 Riverdale Road, Riverdale, Maryland 20801 (Petitioner's Exhibit No. 1). On May 6, 1983 Respondent, by Indictment No. 18312601, was indicted for six counts of Medicaid fraud, three counts of false pretenses and one count of theft in the Circuit Court for Baltimore City, Maryland (Petitioner's Exhibit No. 2). On March 12, 1984, after Respondent's bench trial, the Circuit Court for Baltimore City ordered a judgment of conviction as to the six counts of Medicaid fraud. Respondent was acquitted of the other four counts of the indictment (Petitioner's Exhibit No. 2, P. 39 of the memorandum opinion). Respondent's conviction resulted from the inclusion of nonallowable costs in applications for Medicaid funds submitted by Magnolia Gardens Nursing Home while Respondent was the administrator and a 50 percent owner of the nursing home. The trial court specifically found that Respondent knew that nonreimbursable costs for construction done to Respondent's personal residences and medical office building were included in applications for Medicaid payments (Petitioner's Exhibit No. 2, p. 39 of memorandum opinion). Use of Medicaid funds for improvements to a private physician's office is a violation of Maryland state law which clearly relates to the practice of medicine. As a result of Respondent's conviction for Medicaid fraud, he was sentenced to concurrent five-year terms of imprisonment on each of the six counts. All but 18 months of the sentence was suspended. Respondent was placed on 18 months of work release and 18 months of community service after work release at the rate of 20 hours per week. Respondent was also fined $60,000 and ordered to pay $50,000 restitution. Additionally, Respondent was placed on two years of unsupervised probation (See docket entry of April 23, 1984, Petitioner's Exhibit No. 2). On April 30, 1984 Respondent appealed his conviction to the Court of Special Appeals of Maryland (See docket entry of April 30, 1984, Petitioner's Exhibit No. 2). On November 6, 1985 the Maryland Court of Special Appeals rendered its opinion in William R. Greco v. State of Maryland, Case No. 171 (Petitioner's Exhibit No. 2). Respondent's conviction was affirmed in all aspects and Respondent's sentence was affirmed as to the order to make restitution which was vacated (See Mandate of the Court of Special Appeals of Maryland, dated December 6, 1985, Petitioner's Exhibit No. 2). On October 3, 1986, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals. Greco v. State, 307 Md. 470, 515 A.2d 220 (1986). On December 4, 1984 Respondent was suspended from participation in the federal Medicare and Medicaid programs for a period of ten years (Petitioner's Exhibit No. 3).
Recommendation It is recommended that Respondent's license to practice medicine be revoked. DONE and ORDERED this 30 day of December, 1986 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William W. Cahill, Jr., Esquire WEINBERG and GREEN 100 South Charles Street Baltimore, Maryland 21201 Dr. William R. Greco 6201 Riverdale Road Riverdale, Maryland 20737 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
