The Issue By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits (including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A. The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months). Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations. Respondent graduated from CETEC and was granted a diploma in December, 1980. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 Divisionf Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401 The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows: Petitioner's PFOF A. 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5-6. Covered in FOF 5. 7-8. Covered in FOF 11. B. 1-2. Covered in FOF 5. 3-4. Covered in FOF 19. 5. Covered in FOF 9. 6-8. Covered in FOF 10. 9. Rejected as not supported by the record, taken in context. SeeTR 35-36. 10-11. Accepted but unnecessary. Accepted but out of context and not dispositive of any issue at bar. Accepted but unnecessary and not dispositive of any issue at bar. Unnecessary. Unnecessary and not dispositive of any issue at bar. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22. Covered in FOF 4. Respondent's PFOF 1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23. 4. Covered in FOF 3-4. 5-6. Covered in FOF 6. Covered in FOF 6-7. Covered in FOF 6-8. Covered in FOF 9. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC. 11-12. Covered in FOF 10. Covered in FOF 11. Covered in FOF 13. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. 18. Covered in FOF 17. 19. Covered in FOF 18. 22-23. Covered in FOF 19. 24. Covered in substance in FOF 19. 25-27. Cumulative. 28-29. Covered in FOF 19. 30. Covered in Substance in FOF 19. 31. Except as cumulative or subordinate, covered in FOF 19. 32. Covered as a conclusion of law. 33. Covered in FOF 19. 34. Unnecessary and not dispositive of the single count of the Administrative Complaint remaining at issue. 35. Rejected as argument of counsel. 36-39. Covered in FOF 20. 40. Covered in substance in FOF 20. 41-46. Except as subordinate, covered in FOF 21. 47-49. Unnecessary, but see FOF 21. 50-51. Except as subordinate, covered in FOF 21. 52. Unnecessary. 53-56. Covered in FOF 22. 57-58. Unnecessary and subordinate. 59 . Covered in FOF 22. 60. Covered in substance in FOF 19. 61-69. Unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert S. Turk, Esquire Suite 3400, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Background. Petitioner, George T. Lloyd, Jr., has been employed by the State of Florida, Department of Revenue, for over 14 years, and was, at all times material hereto, a participant in the State of Florida Employees Group Health Self Insurance Plan (Plan), with family coverage. On March 25, 1986, petitioner's son, George T. Lloyd, III (George), then 17 years of age and an eligible dependent under the Plan, was admitted through the emergency room to Broward General Medical Center (Hospital), Fort Lauderdale, Florida. George was placed in the Hospital's Intensive Care Unit, and remained there until his recovery and transfer to the Hospital's psychiatric floor on April 4, 1986. Upon admission, George was comatose and diagnosed as having suffered a severe barbiturate drug overdose. Blood tests performed at the time demonstrated a serum barbiturate level of 145.6 UG (milligrams per milliliter) and a serum Dilantin level of 23.3 UG. At such levels, or even one-half such levels, George would have died of respiratory depression absent medical intervention. On or about August 9, 1986, Blue Cross and Blue Shield of Florida, Inc., the State's administrator of the Plan, notified petitioner that the Hospital's statement for services and supplies rendered during the course of his son's admission of March 25, 1986 to April 4, 1986, totalling $17,402.95, was ineligible for payment based upon the Plan's exclusion of benefits for intentional self-inflicted injuries, to wit: attempted suicide. Pertinent to this case, the Plan provides: VII. EXCLUSIONS The following exclusions shall apply under the Plan: * * * E. Any services and supplies received due to the following circumstances: * * * 2. Resulting from an intentional self- inflicted injury. Over the course of the next two years petitioner's claim for such expenses was reevaluated by the Plan administrator, as well as respondent, Department of Administration (Department). At the conclusion of that review, the Plan administrator concluded that the documentation available to it demonstrated that such expenses were incurred as a consequence of George's attempt to take his own life and were therefore excluded from coverage. By letter of August 19, 1988, the Department notified petitioner that his claim for benefits arising from his son's hospital admission of March 25, 1986 to April 4, 1986, was denied because such expenses resulted from his son's attempt at suicide. Petitioner filed a timely protest of the Department's decision, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. An Intentional Self-Inflicted Injury? Petitioner's son has a history of alcohol and drug (marijuana and cocaine) abuse and emotional problems accompanied by periods of depression that predate the incident in question by a number of years. His mother and father (petitioner) were divorced in 1971 when George was approximately three years of age. Thereafter, George resided in Florida with his mother until his fifth birthday, at which time he was sent out-of-state to reside with his father. George resided with his father until he was eleven years old, and then returned to live with his mother in Florida. In the summer of 1984, George was abusing alcohol and drugs, and experiencing difficulties in school. At that time, his mother again sent George to live with his father in the apparent hope that he could assist George in addressing these problems. The petitioner secured group counseling for George in an attempt to assist him. George continued, however, to use alcohol and drugs, and within four months, dropped out of school and ran away. Approximately four or five months later, George reappeared and returned to Fort Lauderdale to live with his mother and stepfather. Following his return, George did little of a constructive nature, and what jobs he was able to secure as a tenth grade dropout were menial in nature and of a minimal wage. Variously he worked as a bag boy, mowed lawns, and washed cars. On March 25, 1986, George was unemployed, and had just concluded an argument with his stepfather concerning his unemployment and failure to follow any constructive pursuit. Depressed at his circumstances, George ingested phenobarbital and Dilantin, drugs that had been prescribed for his stepfather, with the intention of taking his own life. But for the medical intervention previously discussed, George's attempt would have proven successful. At the time he ingested the drugs, George was not under the influence of alcohol or any other drug, and was of sufficient age and maturity to appreciate the consequences of his actions. Both the nature of the drugs he took and the vast quantity he ingested indicate an intentional attempt to take his own life rather than an accidental overdose during "recreational" use. Here, the drugs he took were not "recreational" drugs, they produce no "high," and the dosage, as heretofore noted, was massive. Considering these factors, George's admission that he attempted suicide, and the totality of the circumstances, compels the conclusion that he did consciously attempt to take his own life, and that what depression he suffered did not deprive him of the ability to appreciate the consequences of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing, with prejudice, the petition for administrative review. DONE and ENTERED this 16th day of May 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 16th day of May, 1989.
The Issue Whether Respondent should refuse to renew Petitioner's medical license on the ground that Petitioner has been terminated for cause from the Florida Medicaid program, as Respondent has indicated it intends to do.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a Florida-licensed medical doctor seeking the renewal of her license. She used to participate as a provider in the Florida Medicaid program. On May 12, 2003, the Agency for Health Care Administration (AHCA) issued a Final Order in Audit No. CI 01- 1713-000, finding that Petitioner received Medicaid overpayments in the amount of $203,059.61, and ordering that she "refund forthwith [that sum] together with such statutory interest as is set forth in § 409.913(24)(b), Florida Statutes." On June 13, 2003, Petitioner filed a motion requesting that ACHA's May 8, 2003, Final Order, be set aside. AHCA denied the motion by Order dated November 18, 2003. Not having received from Petitioner the monies she was ordered to pay, AHCA sent Petitioner a letter, dated May 30, 2008, advising her that it intended to fine her $5,000.00 for having failed to pay her "outstanding debt that [was] owed to [ACHA], related to a Medicaid overpayment"; that "[i]f payment [was] not received or arranged for, within 30 days of receipt of this letter, [AHCA] [might] withhold Medicaid payment"; and that "failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by [AHCA] [might] result in additional sanctions, which [could] include, but [would] not [necessarily be] limited to, fines, suspension, and termination from the Medicaid Program." AHCA's May 30, 2008, letter also contained a Notice of Administrative Hearing and Mediation Rights. By letter dated August 13, 2008, AHCA advised Petitioner that it was "suspending [her] participation in the Medicaid program" due to her still having an "outstanding debt . . . owed to [AHCA]" and that "continued non-compliance [would] result in this suspension converting to termination from participation in the Medicaid program in accordance with Rule 59G-9.070, F.A.C." AHCA's August 13, 2008, letter also contained a Notice of Administrative Hearing and Mediation Rights. On June 11, 2009, Horace Dozier, the Field Office Manager in AHCA's Office of the Inspector General, Medicaid Program Integrity, sent Petitioner a letter, which read as follows: Our records indicate that on August 13, 2008 the Agency for Health Care Administration (Agency) issued a final agency action letter imposing a sanction for an outstanding debt that is owed to the Agency. The letter further informed you that, in accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), continued non- compliance would result in termination from the Medicaid program. As such, the Agency is hereby terminating your participation in the Medicaid program. This includes any action that results in a claim for payment to the Medicaid program as a result of furnishing, supervising a person who is furnishing, or causing a person to furnish goods or services. This will take effect immediately. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. If a request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that if a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: Horace Dozier, Field Office Manager, Agency for Health Care Administration, Medicaid Program Integrity . . . . The last paragraph of the "attached Notice of Administrative Hearing and Mediation Rights" to which Mr. Dozier referred in his letter read as follows: If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR [sic] shall be conclusive and final. Notwithstanding the assertion made in the last sentence of the first paragraph of the body of Mr. Dozier's June 11, 2009, letter that "[t]his will take effect immediately," the determination to terminate Petitioner from the Medicaid program for nonpayment of an "outstanding debt . . . owed to [AHCA]" was treated by AHCA (appropriately, and consistent with the last paragraph of the "attached Notice of Administrative Hearing and Mediation Rights") as merely "intended action" that had not yet ripened into final agency action. Petitioner requested an administrative hearing on this "intended action," but she subsequently, on or about November 12, 2009, withdrew her request by filing with ACHA a Withdrawal of Motion for Formal Hearing and Mediation. On February 16, 2010, ACHA (through its Secretary) issued its Final Order terminating Petitioner from the Florida Medicaid program. The body of AHCA's Final Order provided as follows: THIS CAUSE is before me for issuance of a Final Order on a Final Agency Action Letter dated June 11, 2009 (C.I. # 087796000). By . . . Letter, the Agency for Health Care Administration ("AHCA" or "Agency") informed the Petitioner, Trinidad Rojas, M.D., (hereinafter "PROVIDER"), that the Agency was terminating the PROVIDER from the Medicaid Program pursuant to Section 409.913 and Rule 59G-9.070 for non-compliance of payment [of] an outstanding debt owed to the Agency for overpayments (Final Order Rendered May 12, 2003 and Final Order Rendered June 15, 2007) and a fine sanction of $5000.00.[2] The Letter provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest termination. The PROVIDER filed a petition with the Agency requesting an administrative hearing on July 13, 2009. This petition was dismissed without prejudice on July 16, 2009. On August 1, 2009, PROVIDER filed an amended petition, which was forwarded to the Division of Administrative Hearings ("DOAH") by the Agency on August 12, 2009. On November 12, 2009, PROVIDER filed a Withdrawal of Motion for Formal Hearing and Mediation with the Division of Administrative Hearings. Based on Petitioner's Withdrawal of Motion for Formal Hearing and Mediation, the ALJ issued an Order Closing File, cancelled the hearing scheduled for November 17, 2009, and relinquished jurisdiction to the Agency on November 13, 2009.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued refusing to renew Petitioner's medical license. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 31st day of May, 2011.
The Issue The issue in this case is whether Petitioner, John Harris, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, John Harris, was employed at the Florida State Hospital in Chattahoochee, Florida, from October 1977 to January 15, 1998. The Florida State Hospital is a residential facility for mentally ill adults. Mr. Harris was employed as a Unit Treatment and Rehabilitation Specialist. Mr. Harris was involved in the provision of direct care to residents of Florida State Hospital. During 1997 the Department of Children and Family Services (hereinafter referred to as the "Department") pursuant to Chapter 435, Florida Statutes, conducted background screening of employees involved in the provision of direct care to residents of Florida State Hospital. As a result of a background screening check of Mr. Harris, it was determined that Mr. Harris had pled nolo contendere to possession of cocaine, a felony pursuant to Chapter 893, Florida Statutes, in 1989. As a result of the determination that Mr. Harris had pled nolo contendere to a felony under Chapter 893, Florida Statutes, Mr. Harris was notified by the Department that he was disqualified from employment in his position with Florida State Hospital. The following are the pertinent facts concerning the 1989 nolo contendere plea: During the afternoon of September 11, 1989, Mr. Harris was traveling by automobile from Tallahassee, Florida, where he had picked up the automobile from his wife, to Quincy, Florida, where he lived; Mr. Harris was traveling at a speed of 100mph while being chased by law enforcement. He was stopped by other law enforcement personnel waiting for him just outside Quincy; The automobile that Mr. Harris was driving was searched and cocaine was discovered; Mr. Harris was charged with possession of a controlled substance in violation of Chapter 893, Florida Statutes, and reckless driving in violation of Chapter 316, Florida Statutes; Mr. Harris pled nolo contendere to the charge of possession of cocaine, a felony, and was adjudicated guilty of the offense on or about February 21, 1990; and Mr. Harris was sentenced to probation for a period of one year. Although not listed in the letter informing Mr. Harris of the results of his background screening, Mr. Harris also was charged and pled nolo contendere to the offense of possession of cocaine with intent to sell in 1981 and driving under the influence of alcohol and possession of cannabis in 1995. The following are the only pertinent facts concerning the 1981 offense offered at hearing: On or about May 24, 1982, Mr. Harris pled nolo contendere to possession with intent to sell cocaine in violation of Chapter 893, Florida Statutes, a second degree felony, as a result of an incident that took place in 1981; and Mr. Harris was adjudicated guilty and was sentenced to probation for a period of eight years. The following are the pertinent facts concerning the 1995 offenses for driving under the influence of alcohol and possession of cannabis: Mr. Harris was driving an automobile in or near Bainbridge, Georgia, when he was stopped by law enforcement; Mr. Harris was charged with driving under the influence of alcohol and possession of cannabis that was found in the glove compartment of the automobile; Mr. Harris was adjudicated guilty of both offenses; and Mr. Harris was sentenced to probation for a period of one year and a number of week-ends in jail. At the time of the formal hearing Mr. Harris was 44 years of age. Mr. Harris' immediate supervisor, Rollean Lloyd (Ms. Lloyd indicated at the hearing that her first name is spelled "Rollean") testified at the formal hearing in support of Mr. Harris' continued employment at Florida State Hospital. Ms. Lloyd also signed a letter (Ms. Lloyd's first name is spelled "Rollene" on the letter) supporting his continued employment at Florida State Hospital. Ms. Lloyd's supervisor also testified at the formal hearing and signed a letter supporting his continued employment at Florida State Hospital: I have known John Harris for approximately eight years as an employee of Unit 4, Florida State Hospital. I have observed Mr. Harris over this time and he had become a concientious [sic] worker who relates well to the residents and to the staff in Unit 4. His recent attendance record has been good and Mr. Harris performs his job to the best of his ability. Mr. Harris is cooperative with his supervisors and supportive of his co-workers. For the past eleven years Mr. Harris has been, and was at the time of the formal hearing, married to Ollie Harris. Mr. Harris has two sons, one twenty years of age and the other eighteen years of age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services denying John Harris' request for an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 John Perry, Esquire District 2 Legal Office Department of Children and Family Services 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue May the Department of Children and Family Services properly terminate Respondent as a Medicaid provider pursuant to its letters of March 6, 1996, and the same letter bearing the date, April 12, 1996? If the Department's termination was unlawful, may Respondent be awarded reinstatement and back "wages?" If the Department's termination was unlawful, may Respondent be awarded attorney's fees?
Findings Of Fact The Motion to Dismiss On March 6, 1996, the Agency served a termination letter upon Respondent Charest. Because that letter was not sent certified mail, the same letter was re-dated April 12, 1996, and served by certified mail. Respondent Charest timely requested formal hearing, pursuant to Chapter 120, Florida Statutes, but there was no request that a formal hearing be conducted within 90 days pursuant to Section 409.335, Florida Statutes. The Preliminary Statement, above, sets out the procedural history of this case before the Division of Administrative Hearings and is incorporated here by reference. The 1996 termination letter(s) provided, in pertinent part, as follows: This letter is to notify you of your termination as a Medicaid provider for a term of three (3) years. This termination also applies to your company, Family Choice Support Services. Since you were suspended effective May 1, 1995, the suspension of three years will run from that date, making you eligible to reapply for certification as of May 1, 1998. This termination is pursuant to §409.913(9)(b), Florida Statutes. Termination is authorized by the fact that you have violated the provisions of §409.13(8) by: Failing to provide Medicaid-related records on a timely basis as required under §409.913(8)(g). Failing to abide by the requirements of state law as required by §409.913(8)(h), in that you violated §409.919(2)(e) by offering Jackie Fagan compensation in return for referring clients to you. Also by submitting false or misleading information in connection with your application to qualify as a support coordinator eligible for Medicaid reimbursement in violation of §409.919(2)(g). Submitting applications and requests for reimbursement containing materially false or incorrect information in violation of §409.913(8)(j) and (k). (emphasis supplied) Paragraph 3 of the termination letters, alleging that Respondent had submitted requests for reimbursement containing materially false or incorrect information in violation of Section 409.913(8)(j) and (k), was orally dismissed by the Agency at the commencement of formal hearing. Respondent Charest previously had requested formal hearing in DOAH Case No. 95-3469. Charges in that case arose from April 24, 1995, and May 23, 1995, suspension letters similar to the March 6, 1996, and April 12, 1996, termination letters in the instant case. At the commencement of that formal hearing, Mr. Charest had moved to dismiss DOAH Case No. 95-3469 because the administrative complaint (the 1995 suspension letters) were based on an unadopted Agency rule. The DOAH Hearing Officer entered a December 15, 1995, Recommended Order which recommended that the Agency grant the Motion to Dismiss. The August 7, 1996, Agency Final Order read, in pertinent part, The department's certification termination letter cites only violation of certain unadopted rules. No other authority . . . is provided . . . . I must, therefore, concur . . . that the termination letter is facially deficient. Accordingly, it is ORDERED that the administrative action against petitioner's provider certification is dismissed. (emphasis supplied) At formal hearing in the instant case, Respondent moved to dismiss the 1996 termination letters. In part, he asserted that the formal hearing of June 11, 1997, was not timely, pursuant to Section 409.335, Florida Statutes.4 Respondent further asserted that the 1996 termination letters were vague because, pursuant to Section 409.913(9)(a), a suspension cannot be for more than one year, and the current charging documents were insufficient to advise him if he were subject to suspension or termination.5 The remaining thrust of Respondent's oral Motion to Dismiss was that due process had not been afforded to him because he had been given inadequate notice of the charges in the March 6, 1996, and April 12, 1996, termination letters because Sections 409.13(8), 409.919(2)(e), and 409.919(2)(g) do not exist. The Agency conceded that its citation to Section 409.13(8) in the second sentence of the 1996 termination letters was in error because the correct citation should have been to Section 409.913(8) Florida Statutes. The Agency also conceded that the termination letters' citation to Section 409.919(2)(e) and 409.919(2)(g) also should have been to 409.920(2)(e) and 409.920(2)(g), respectively. The undersigned orally denied Respondent's motion to dismiss and specifically found that there was clear and adequate pleading within the 1996 termination letters at least as to the statutory citations within numbered paragraphs 1 (Section 409.913(8)(g), Florida Statutes) and numbered paragraph 2 (Section 409.913(8)(h), Florida Statutes), and that under the circumstances of this case, the letter as a whole otherwise gave adequate notice of the charges Respondent would be called upon to defend against. However, the parties were also instructed that the issue of the statutory discrepancy in the 1996 termination letters could be re-visited in the parties' post-hearing proposals. The Merits Respondent began working as a Medicaid provider and support coordinator during February 1993. On June 20, 1993, Respondent signed a Florida Medicaid Provider Enrollment Application for certification as a Medicaid provider and was certified. On this application, Respondent answered "yes" to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pretrial intervention program?" Respondent was certified, despite his affirmative answer, which related to a pre-1993 assault charge based on a dispute with a neighbor. No further Agency action ensued. Annual re-applications and re-certifications of provider status were anticipated, but due to creation of the Agency's new Geographic Service District 13, in order to comply with increased screening by the abuse-prevention registry, and because of missing paperwork for 1994, the Agency asked Respondent to apply for re-certification in December 1994. On December 13, 1994, Respondent signed a new Florida Medicaid Provider Enrollment Application for recertification. At that time, he answered "No," to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pre-trial intervention program?" The Agency did not pursue the discrepancy between Respondent's June 20, 1993, and December 13, 1994, applications. However, a 1995 "screening," pursuant to Chapter 415, Florida Statutes, alerted Agency Medicaid personnel to the problem. When requested, Respondent provided the Agency with a 1993 "Disposition of Charges" on a domestic violence charge against him. That document is not in evidence, but apparently, it did not show that any pre-trial intervention had taken place and suggested that the case was dismissed. The Agency did not pursue the matter. At formal hearing, official recognition was taken of an "Announcement Of No Information" entered December 8, 1993, in State of Florida v. Charest, Marion County Court Case No. 93- 9765MM. Therein, the State Attorney in and for Marion County announced that the case would not be prosecuted on the basis that the defendant, (the Respondent herein) participated in, and successfully completed the Salvation Army Probation Pre-Trial Intervention Deferred Prosecution Domestic Violence Program. Respondent maintained that he had never received a copy of the Announcement of No Information and that no one had adequately informed him that the December 1993 domestic violence charges against him were not simply dismissed. However, he also admitted that he had been required to go to at least one session of counseling as a result of a 1993 domestic violence case and that this had occurred since he had filled out his original June 20, 1993, application. Considering Respondent's testimony concerning his work experience with the Department of Corrections and his 20 years as a mental health counselor, the undersigned does not find credible Respondent's protestations that he did not know that he had been involved in December 1993 in a pre-trial intervention program for domestic violence. Therefore, it is found that Respondent knowingly submitted false or misleading information on an application to the Medicaid Program for the purpose of being accepted as a Medicaid provider. Due to the vulnerability of the mentally challenged clients served by support coordinators, a charge of domestic violence and entry into a pre-trial intervention program are material to Respondent's fitness as a provider of services for the Agency's clients and should have been disclosed. Support plans are necessary to determine what services are appropriately reimbursable by Medicaid. The Agency experienced an ongoing problem in that most of its providers filed their "support plans" late, pursuant to Section 409.313(8)(g), Florida Statutes. Respondent's company submitted untimely reports in a greater degree than any other similar provider. Respondent was only one of two principals in his company. The Agency requested a Corrective Action Plan from Respondent, due April 1, 1994. Respondent's company continued to have chronically late plans after April 1, 1994. Respondent was cautioned on several occasions about the importance of timely submission of support plans, more particularly in a January 31, 1995, letter. Despite Respondent's hiring someone to assist him, five of eight reports attributable to him were still late just prior to his termination. Jackie Fagan is a staff member of the Key Learning Center operated by the Citrus County Association for Retarded Citizens. She was employed in that capacity in 1994 and 1995. Over several months in the latter part of 1994, Respondent negotiated with Ms. Fagan, trying to hire her for his company as a support coordinator. Ultimately, Respondent's increased salary offers did not entice Ms. Fagan to leave her 20- year employment with Key Learning Center. Part of the negotiations seem to have included Respondent's offer of a "bounty" to Ms. Fagan for each client who transferred to Respondent's company, when and if Ms. Fagan changed employments. There is no concensus on whether this would have been ethical. Even after she finally turned down Respondent, Ms. Fagan also understood Respondent to be offering her a bounty for any client she was able to sway to change to his company. Ms. Fagan clearly remembered that Respondent told her he would have to pay her off the premises of Key Training Center for this type of service. Susan Jaynes, who was Ms. Fagan's secretary, overheard Respondent say that if Ms. Fagan recommended clients to him, he "would make it worth her while." Originally, the Agency had required Respondent to bill Medicaid in quarter-hour increments, but at the time of Respondent's "bounty" conversations with Ms. Fagan after she had turned down his offer of employment, Medicaid paid support coordinators $147.00 per month for each client signed up with the support coordinator. Each support coordinator would have 30 to 35 clients at any one time. There was not a complete overlap of services between the type of services provided by Key Learning Center and Family Choice Support Services. However, where there was an overlap, the effect of Ms. Fagan proselytizing for Respondent would have been to persuade vulnerable mentally challenged clients and/or their supportive family members to change support coordinators for purely economic gain to Ms. Fagan and Respondent. It was contrary to Key Learning Center's ethical policy. Ms. Fagan also considered this type of persuasion ethically wrong. She reported it. Respondent established that if Key Learning Center employees simply handed out his advertising flyers, there would be no legal or ethical offense, although it was also shown that it was more common for him to mail his flyers directly to potential clients living in family homes. Respondent testified, without refutation or corroboration, that upon learning of his attempts to hire Ms. Fagan, the director of Key Learning Center had not permitted him to come on its premises to pick up and deliver mutual clients and had threatened Respondent that if he hired Ms. Fagan away, the director would see that Respondent lost all his own clients. Assuming, but not finding, that such a threat was actually made, it was never demonstrated that the director of Key Learning Center could carry out this alleged threat or that he ever approached or influenced the Agency to file charges against Respondent. The Agency suspended Respondent's certification on May 1, 1995, and the prosecution of DOAH Case No. 95-3469 then took the route described above in Finding of Fact 6. The Agency never restored Respondent's certification pending resolution of Respondent's first request for formal hearing in DOAH Case No. 95-3469. Respondent has been effectively decertified since May 1, 1995. He has been unable to draw on Medicaid funds pursuant to his certification since May 1, 1995. The 1996 termination letters in the instant case preceded exhaustion of any one year suspension under the 1995 suspension letters and also preceded the August 7, 1996, Final Order in the prior case. Even if de-certification had been frozen pending Section 120.57(1) proceedings, any certification existing on May 1, 1995, would have expired at the latest one year from its grant, pursuant to Respondent's December 13, 1994 application.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order ratifying its termination of Respondent's certification as a Medicaid individual support coordinator provider, retroactive to May 1, 1995. DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997.
The Issue The issues are those promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent, Charles McArthur. In particular, it is alleged that the Respondent practiced pharmacy in the state of Florida with an expired license, in violation of Subsection 465.015(2)(b), Florida Statutes (1981).
Findings Of Fact Respondent, Charles McArthur, is a pharmacist licensed by the State of Florida. His license number is 0012091. On June 20, 1983, Respondent attempted to renew his pharmacy license issued by the state of Florida on a bi-annual basis. He attempted this renewal by appearing in person before officials with the State of Florida, Board of Pharmacy, entitled to grant renewal. That renewal was denied based upon the fact that the Respondent was unable to provide verification of the requisite continuing education credits necessary for relicensure. As a consequence, on June 21, 1983 Respondent's active pharmacy license expired, leaving the Respondent with an inactive pharmacy license. For the period June 21, 1983 through July 20, 1983 Respondent practiced pharmacy with an inactive license. During that time frame, Thomas Hannah, an investigator with the State of Florida, Department of Professional Regulation, visited the Respondent in the pharmacy in which Respondent was practicing in Tallahassee, Florida. He observed the Respondent practice pharmacy and noted the presence of the expired active Florida pharmacy license. On that occasion, Hannah told the Respondent that he was operating without a current license. On the following day, July 20, 1953, Respondent paid the appropriate fees and made proof of the requisite continuing education credits and his active pharmacy license was re-issued. Subsequent to that date Respondent has held an active pharmacy license issued by the State of Florida. In view of the Respondent's practice of pharmacy with an inactive license from the period of June 21, 1983 through July 20, 1983, Respondent was charged with the present offense and requested, and was granted, a formal Subsection 120.57(1), Florida Statutes, hearing. In dealing with other recalcitrant licensees who have not renewed their licenses in the time allotted, the Board of Pharmacy, prior to February, 1980 sent a list to Board inspectors within one or two weeks following the due date of renewal and those inspectors contacted the licensees to ascertain whether the licensees had renewed their pharmacy licenses. If they found that the individual pharmacist did not renew his license that person was given an opportunity to fill out an application, to pay the fee, and to present his continuing education credits to the investigator. Persons who were not entitled to renew due to problems with the continuing education credits were told that they were delinquent, and practicing with a delinquent license was a violation of law. Those persons were given the opportunity to take leave of absence from their active pharmacy practice. Around February, 1980 due to the re- organization of the State of Florida, Department of Professional Regulation, insufficient work force was available to carry out this process of checking on the topic of the delinquent license renewals, and this sequence of inactivity continued until approximately December, 1981. During this period actions were not brought against pharmacists for failure to timely renew a license to practice pharmacy, within the meaning of Section 465.015(2)(b), Florida Statutes, provided they renewed licenses within one year of the appropriate renewal date. In December, 1981 the practice changed and the pharmacists would be prosecuted for failure to timely renew a license to practice pharmacy and continuing to practice with an expired license. This change in policy position which occurred in December, 1981 was not shown in the course of the hearing to be a matter noticed for the benefit of the practicing pharmacists in the State of Florida.
The Issue Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987), prescribes for instituting challenges to proposed administrative rules?
Conclusions The time limit Section 120.54(4)(b), Florida Statutes (1987) sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-3821R (DOAH; Sept. 14, 1988); City of Gainesville vs. Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(13)(b), Florida Statutes (1987) requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they are parties to the rulemaking, and take timely stems to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew, 324 So.2d 655 (Fla. 1st DCA). Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988), while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed. This makes the petition untimely under Section 120.54, Florida Statutes (1987) It is, accordingly, ORDERED: The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987). DONE and ENTERED this 15th November, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, FL 33704 David A. Crowley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399 Janet E. Bowman, Esquire P.O. Box 1876 Tallahassee, FL 32302 James S. Alves, Esquire Thomas T. M. DeRose, Esquire P.O. Box 6526 420 First Florida Bank Building Tallahassee, FL 32314 Lawrence E. Sellers, Jr., Esquire P.O. Drawer 810 Tallahassee, FL 32302 Cindy L. Bartin, Esquire P. O. Box 271 Tallahassee, FL 32302
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November 1993.
Findings Of Fact At all times material hereto, Respondent Alberto Calil was the owner of Farmacia La Familia, the holder of a permit to operate a pharmacy under the laws of the State of Florida, having been issued permit number 0007056. At all times material hereto, Respondent Hildelisa M. Hernandez has been licensed as a pharmacist under the laws of the State of Florida, having been issued license number 0016352. At all times material hereto, Hernandez has been the managing pharmacist at Farmacia La Familia and, specifically, has been the only pharmacist employed there. Prior to the events alleged in the Administrative Complaints filed herein, Respondent Nelson Torres had an ownership interest in Farmacia La Familia. In February 1982, he transferred his interest in the business, and his shares of stock in the corporation owning the business, to Respondent Calil. At the time of the formal hearing in this cause, Torres did not own or operate a pharmacy. The Miami office of the Department of Professional Regulation received an anonymous letter advising, essentially, that a number of pharmacies were being operated other than in compliance with the law. Georgina Auspitz, an investigator with the Department of Professional Regulation, was instructed by her supervisor to visit each of the pharmacies named in that letter to investigate the allegation. On Friday, March 26, 1982, Auspitz entered the Farmacia La Familia. After a brief conversation with Respondent Hernandez and a customer of the pharmacy, Auspitz asked Hernandez for three dollars' worth of Tranxene 3.75 mg. Hernandez went into the dispensary part of the pharmacy and returned with a manila envelope containing 15 capsules. At no time during this transaction did Auspitz present Hernandez with a prescription. On Monday, March 29, 1982, Auspitz took the envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene. On April 6, 1982, Auspitz returned to the Farmacia La Familia. She asked Manuel J. Diaz Garcia1 an employee of the pharmacy, for three dollars' worth of Tranxene 7.5 mg. Diaz went into the dispensary part of the pharmacy, had a discussion with an unidentified female, and returned to the main part of the pharmacy to wait on customers. After being advised that the order was ready, Diaz gave Auspitz a manila envelope containing 11 capsules. Auspitz paid Diaz, Diaz placed the money in the cash register, and Auspitz left the pharmacy. At no time during this transaction did Auspitz present to Diaz a prescription. Auspitz took the manila envelope and its contents to the Dade County Public Safety Department. A subsequent chemical analysis of the capsules revealed the presence of the controlled substance known as clorazepate, the active ingredient in Tranxene. After she had made her second "buy" at Farmacia La Familia, Auspitz contacted the City of Miami Police Department to ascertain if one of its narcotics detectives would accompany her on subsequent "buys." As a result of her request, Detective Noel Rojas was assigned to accompany her. On April 8, 1982, Auspitz and Rojas went to the Farmacia La Familia. Crus Caballero, an employee of the pharmacy, approached them. Auspitz told Caballero she wanted three dollars' worth of Ativan, and Rojas told Caballero he wanted five dollars' worth of Valium 5 mg. Caballero wrote something on a scrap piece of paper and went into the dispensary portion of the pharmacy, left the piece of paper, and returned to wait on other customers. Respondent Hernandez came to the door of the dispensary area, "looked over" Auspitz and Rojas, and returned to the dispensary. A few moments later, Caballero brought two manila envelopes to where Auspitz and Rojas were waiting. Although Auspitz had ordered three dollars' worth of Ativan, Caballero only brought her two dollars' worth. After Auspitz agreed to take the smaller quantity, Caballero placed both manila envelopes into one bag, and Auspitz and Rojas paid for their purchases and left the pharmacy. At no time during this transaction did Auspitz or Rojas present Caballero with a prescription. Upon leaving the pharmacy, Auspitz and Rojas separated their purchases. Auspitz took hers to the Dade County Public Safety Department, and Rojas took his to the City of Miami Police Department. The chemical analysis performed on the six tablets purchased by Auspitz revealed the presence of the controlled substance lorazepam, the active ingredient in Ativan. The chemical analysis performed on the 23 tablets purchased by Rojas revealed the presence of the controlled substance diazepam, the active ingredient in Valium. Neither Manuel J. Diaz Garcia nor Crus Caballero is licensed as a pharmacist or registered as a pharmacy intern in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against Respondent Nelson Torres with prejudice; finding Respondents Farmacia La Familia, Alberto Calil and Hildelisa M. Hernandez guilty of each and every count in the Administrative Complaints filed against them; and revoking pharmacy permit number 0007056 issued to Respondents Farmacia La Familia and Alberto Calil, and further revoking pharmacist license number 0016352 issued to Respondent Hildelisa M. Hernandez DONE and RECOMMENDED this 5th day of April, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 5th day of April, 1983. COPIES FURNISHED: W. Douglas Moody, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Raul A. Cossio, Esquire 1900 Coral Way, Suite 404 Miami, Florida 33145 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hinton F. Bevis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 3230123
