The Issue The issue to be decided is the amount payable to Respondent in satisfaction of the Agency’s Medicaid lien from a settlement received by Petitioners from a third party, pursuant to section 409.910(17), Florida Statutes.1/
Findings Of Fact Nazyrah Jones was born May 13, 2008, at North Florida Regional Hospital. The attending physician was Dr. Anthony Agrios.2/ During her birth, Nazyrah suffered an anoxic brain injury, a deprivation of oxygen to her brain. As a result, Nazyrah is totally disabled, unable to sit up, stand, crawl, walk, speak, or feed herself. Nazyrah is unable to swallow and requires frequent suctioning of her airway to remove substances which are, or may become, aspirated. Nazyrah’s condition is permanent. Nazyrah’s mother, Callena Jones, lives alone with Nazyrah and is Nazyrah’s primary care-giver. Ms. Jones relies upon a home-health care agency, to assist with Nazyrah’s daily care. Ms. Jones currently attends Webster University where she is working toward a master’s degree in mental health counseling. No evidence was introduced upon which to base a finding that Ms. Jones is employed. Claims for compensation for birth-related neurological injuries alleging medical malpractice are governed by Florida’s Neurological Injury Compensation Plan administered by the Florida Birth-Related Neurological Injury Compensation Association (NICA), pursuant to sections 766.301 through 766.316, Florida Statutes. NICA is the exclusive remedy for such medical malpractice claims, except that a civil action “shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property[.]” § 766.303(2), Fla. Stat. Ms. Jones filed a civil medical malpractice lawsuit on her behalf and on behalf of Nazyrah, against both North Florida Regional Hospital and Dr. Agrios, alleging “willful and wanton misconduct” on behalf of the medical providers. Petitioners obtained a settlement of $825,000.003/ from the medical providers related to Nazyrah’s injuries. Petitioners presented no evidence as to what portion of the $825,000.00 total settlement was designated by the parties as compensation to Petitioners for medical expenses, or conversely, for various other types of damages either Nazyrah or her mother may have suffered, such as pain and suffering, loss of enjoyment of life, or loss of future earnings. Neither the settlement agreement itself, nor any documents prepared in connection therewith, was introduced into evidence. No witness offered any testimony on this issue. Based upon the evidence presented at hearing, all of the settlement might have been apportioned to medical care, or none of it might have been. Petitioners offered the testimony of Richard Kolodinsky, a civil trial lawyer who has practiced since 1978, has been board certified in civil trial law for approximately 20 years, and is a member of the American Board of Trial Advocates, among other professional distinctions. Mr. Kolodinsky was retained by Petitioners to review the case and offer his opinion on the full value, or total damages, of the underlying medical malpractice claim. In preparation for his testimony, Mr. Kolodinsky reviewed Petitioners’ medical records, the Life Care Plan for Nazyrah Jones, the pleadings filed in the underlying medical malpractice lawsuit, a list of payments by Medicaid on behalf of Nazyrah Jones, the NICA statute, the settlement in the underlying medical malpractice lawsuit, the Guardian ad Litem report to the court evaluating the settlement, the court order approving the settlement, and a “tender” from Dr. Agrios. Mr. Kolodinsky testified that, in his opinion, the full value of the underlying medical malpractice claim was at least $25 million. Mr. Kolodinsky testified that his opinion was “based primarily on the Life Care Plan . . . in summary . . . that provided for costs of about $11 million over the child’s lifetime[.]”4/ Further, he testified that it’s my understanding that Ms. Jones is a college graduate and may have a master’s degree, if I’m remembering correctly, and so I looked at the potential for lost earnings that was also mentioned in the Life Care Plan. And for a college graduate, lifetime earnings are in the range of 2.1 million.5/ The Life Care Plan was not introduced into evidence. Mr. Kolodinsky testified, generally, that a Life Care Plan is usually prepared as evidence in a personal-injury case by a life care planner who evaluates the cost of services, as determined by a physician after examination of the injured party, to be needed by the injured party over his or her lifetime. Mr. Kolodinsky testified that, together, the expenses for Nazyrah’s ongoing care plus Ms. Jones’ potential lost earnings “brings us to a special damages number of about $13 million.”6/ Mr. Kolodinsky next testified as to his opinion of the full value of non-economic damages in the underlying case. His explanation was as follows: And so on top of that, you know, you have of course the noneconomic damages component . . . for a profoundly injured, profoundly handicapped child, that is a life of constant care and deprivation that this child suffers minute to minute and the mother deals with minute to minute and will deal with for the rest of their lives. So, you know, these are big numbers. You know, the valuation on personal injury and medical malpractice claims, you know, there was sort of a rule of thumb that people talk about three times the specials, but that really is a rule of thumb that almost never is accurately applied, and as we all know that is very difficult to predict what a jury would do in any particular cases but you have to think that when you have special damages in the $13 million range that the damages for the child could easily be another $10 million on top of that and for the mom somewhere in the couple million to 5 million range. So, that brings us up to in the 25 million plus range, and if there were no damage caps, if there were no limitations on insurance, if there was no NICA, if there were no problems with the case, and you were looking at, okay, what are the full damages for this case absence of any of those other issues, that’s what I would think that that would be worth.7/ On cross-examination, when questioned whether he had tried cases similar to Nazyrah’s, Mr. Kolodinsky testified, “I don’t do NICA cases and in part because of the limitations on damages,”8/ and that he has never tried a case involving an anoxic injury at birth “because of NICA.”9/ Mr. Kolodinsky has tried cases in which a child was a victim of medical malpractice, and has tried cases which involve Medicaid and Medicare liens. Mr. Kolodinsky conducted no jury verdict research and did not compare this case to any case tried to verdict. Mr. Kolodinsky’s testimony regarding Petitioners’ economic damages was imprecise, utilizing hedging language such as costs “of about $11 million” and earnings “in the range of $2.1 million.” Mr. Kolodinsky provided no basis for his opinions other than the Life Care Plan, which was not introduced into evidence and the genesis and role of which was explained only in the most general terms. Mr. Kolodinsky’s testimony regarding Petitioners’ non- economic damages was lacking in detail, failed to establish the basis for his opinion, and was unpersuasive. No other evidence was introduced as to the basis for Mr. Kolodinsky’s opinion on the full value of the non-economic damages in the underlying medical malpractice claim. Mr. Kolodinsky’s opinion was the only evidence introduced on the issue of valuing the total damages in the underlying medical malpractice claim. Respondent, Agency for Health Care Administration (AHCA), is the Florida state agency authorized to administer Florida’s Medicaid program. § 409.902, Fla. Stat. The Florida Statutes provide that Medicaid shall be reimbursed for medical assistance that it has provided if resources of a liable third party become available. § 409.910(1), Fla. Stat. Florida Medicaid, through AHCA, paid $172,890.44 for Nazyrah’s medical expenses. Thus, Respondent has asserted a Medicaid lien in the amount of $172,890.44 against any proceeds received from a third party. The amount to be recovered for Medicaid medical expenses from a judgment, award, or settlement from a third party is determined by the formula in section 409.910(11)(f), which establishes the amount at one-half of the total recovery, after deducting attorney’s fees of 25% of the recovery and all taxable costs, up to the total amount actually paid by Medicaid on the recipient’s behalf. The parties stipulated that application of the formula in section 409.910(11)(f) to the entire proceeds of the settlement yields $172,890.44.10/ Petitioners argued that the Agency should be reimbursed a lesser amount than the lien of $172,890.44. Petitioners offered two theories for calculating the correct amount to be reimbursed to the Agency. The first theory, and the one advanced by Petitioners’ expert, is that the Agency should recover from its lien in the same proportion that Petitioners’ recovered from the full value of the damages in the underlying case. Petitioners again relied upon Mr. Kolodinsky to establish the proportion of the Medicaid lien which the Agency should be reimbursed under this theory. In this regard, Mr. Kolodinsky testified as follows: So then you look at what proportion the settlement is to the 25 million and you get I think it’s like 3 or 4 percent. We can do the math and determine correctly. Then you apply the percentage, the 3 or 4 percent, to the $172,000 that Medicaid is seeking and that’s the net that Medicaid gets; 4 percent, 3 percent of 172,000, because that is the proportion that the settlement was of the total value of the case.11/ Mr. Kolodinky’s testimony, again, was imprecise and unpersuasive. Assuming the full value of the damages at $25 million, Petitioners recovered 3.3% of the full value of their claim in the $825,000 settlement. Under Petitioners’ first theory, the Agency should be reimbursed 3.3% of its lien for medical expenses, or $5,705.38.12/ Under an alternate theory, advanced for the first time in Petitioners’ Proposed Final Order, Petitioners maintain the Agency should recover in the same proportion that past medical expenses are to the full value of the damages in the underlying case. Under this theory, Petitioners designate the amount paid by Medicaid, $172,890.44, as Petitioners’ past medical expenses. Petitioners introduced no direct evidence to establish the amount to be recovered by the Agency under this theory. Petitioners posit, correctly, that $172,890.44 is .69% of $25 million. Applying that percentage to the settlement amount returns a figure of $5,692.50, which Petitioners claim is due to the Agency in satisfaction of its lien.13/ Both theories rely upon establishing the full value of damages in the underlying medical malpractice claim at $25 million. Petitioners did not prove the value of the damages in underlying medical malpractice by clear and convincing evidence. Petitioners failed to prove by clear and convincing evidence that the statutory lien amount of $172,890.44 exceeds the amount actually recovered in the settlement for medical expenses.
The Issue The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.
Findings Of Fact A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 2l, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4) (a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989. At the time Dr. Veloso entered his guilty plea, he was represented by counsel. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way: A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400 U.S. 25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c) the existence of a record, at the time of the plea which contains overwhelming evidence against the accused. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section 458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be suspended for a period of six months, and that he be fined $1,500. DONE and ENTERED this 26th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 26th day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5481 Rulings on findings proposed by the Respondent: Findings 1 and 2 have been accepted. Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact. COPIES FURNISHED: Richard Grumberg, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Andrea Newman, Esquire Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor Miami, FL 33145 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent was overpaid for Medicaid claims submitted during the audit period January 1, 2004, through December 31, 2004, and, if so, what amount Respondent is obligated to reimburse Petitioner; and whether sanctions and costs should be assessed against Respondent.
Findings Of Fact This case involves a Medicaid audit of claims paid by AHCA to Respondent for dates of service from January 1, 2004, through December 31, 2004. The audit in this case evaluated 2,631 paid claims on behalf of 17 Medicaid recipients. During the audit period, Respondent was an enrolled Medicaid waiver provider and had a valid Medicaid Provider Agreement with AHCA. Respondent was authorized to provide home and community-based services to Medicaid waiver recipients. Paragraph 3 of the Medicaid Provider Agreement states that "the provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks, and Statements of Policy as they may be amended from time to time."1/ Among other duties, Petitioner investigates and audits Medicaid providers in an effort to identify and recoup overpayments made to providers for services rendered to Medicaid recipients. Petitioner is also empowered to impose sanctions and fines against offending providers. Petitioner, when it identifies overpayment, fraud, or abuse, is charged with taking affirmative steps to recoup any overpayments and can, as appropriate, impose fines, sanctions, and corrective actions plans on the offending provider. Pursuant to what is commonly referred to as the "pay- and-chase" system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner determines that the provider was paid for services rendered which were not in compliance with Medicaid requirements, then Petitioner seeks reimbursement from the provider. By correspondence dated December 8 and December 29, 2006, Petitioner contacted Respondent and requested records related to claims billed to Medicaid by Respondent. Respondent provided documents in response to Petitioner's requests. After considering the information provided by Respondent, Petitioner, on February 27, 2007, issued a Preliminary Audit Report and advised therein that it was believed that Petitioner had overpaid Respondent in the amount of $364,973.45. In response to the Preliminary Audit Report, Respondent submitted additional documentation that it desired for Petitioner to consider. On May 17, 2007, Petitioner, after having reviewed the additional documentation submitted by Respondent, issued a FAR and noted therein that Petitioner had determined that Respondent was overpaid by Medicaid in the amount of $259,033.49. In this same correspondence Petitioner notified Respondent that Petitioner was seeking to impose a $2,000.00 fine against Respondent; would be requiring Respondent to adhere to a corrective action plan in the form of a Provider Acknowledgment Statement; and would be assessing investigative, legal, and expert witness costs against Respondent. In response to Petitioner's correspondence of May 17, 2007, Respondent submitted to Petitioner additional documentation which resulted in the overpayment amount being adjusted downward to $212,683.06. The FAR is supported by Petitioner's staff files, testimonial evidence, spreadsheets related to overpayment determinations, and documentation submitted by Respondent. Collectively, this supporting documentation constitutes Petitioner's "work papers" within the meaning of section 409.913(22), Florida Statutes (2003).2/ Petitioner's work papers establish that Respondent was overpaid $212,683.06. Petitioner's work papers show the following with respect to the 17 Medicaid recipients whose paid claims were audited: For Medicaid recipient no. 1, Petitioner audited 9 claims. For each claim, Petitioner determined that Respondent billed and erroneously received payment for services provided to the recipient that were not authorized by Medicaid; For Medicaid recipient no. 2, Petitioner audited 388 claims. Of the claims reviewed, six were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to produce sufficient supporting documentation related to staff eligibility to provide the services for which Medicaid was billed. For other claims, there were unexplained alterations made by Respondent to certain time entries contained in the Medicaid services log book; For Medicaid recipient no. 3, Petitioner audited 110 claims. Of the claims reviewed, only one claim resulted in overpayment due to Respondent's failure to provide sufficient supporting documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 4, Petitioner audited 51 claims. Of the claims reviewed, 23 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because there was insufficient documentation related to the eligibility of Respondent's staff to provide the services for which Medicaid was billed; For Medicaid recipient no. 5, Petitioner audited five claims. Of the claims reviewed, two were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 6, Petitioner audited 32 claims. Each of the 32 claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 7, Petitioner audited 279 claims. Of the claims reviewed, 94 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 8, Petitioner audited 155 claims. Of the claims reviewed, 95 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 9, Petitioner audited 239 claims. Of the claims reviewed, 82 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 10, Petitioner audited 82 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. Respondent was overpaid for these claims because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 11, Petitioner audited five claims. None of the claims reviewed were found to be in compliance with Medicaid standards. This Medicaid recipient was authorized to receive services through December 31, 2003. For each claim, Respondent billed, and was paid for, services that were provided after December 31, 2003. This resulted in an overpayment to Respondent; For Medicaid recipient no. 12, Petitioner audited 113 claims. Of the claims reviewed, 79 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 13, Petitioner audited 20 claims. Of the claims reviewed, 15 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to follow the recipient's support plan goals and double-billed Medicaid for services that were provided to the recipient; For Medicaid recipient no. 14, Petitioner audited 343 claims. Of the claims reviewed, 275 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 15, Petitioner audited 258 claims. Each of the 258 claims was found to be in compliance with Medicaid standards. For Medicaid recipient no. 16, Petitioner reviewed 222 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. The reviewed claims showed overpayment to Respondent because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, the services were provided to the Medicaid recipient by an unqualified individual, and Respondent overbilled for certain services provided to this Medicaid recipient; and For Medicaid recipient no. 17, Petitioner reviewed 320 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. Respondent was overpaid for these claims because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient. On November 30, 2011, Petitioner rested its case-in- chief in the instant matter. At Respondent's request, a third day was authorized for the presentation of evidence so that Respondent could issue subpoenas and offer evidence to rebut Petitioner's claim as appropriate. So as to allow Respondent, who appeared in this matter pro-se, adequate time to prepare its defense, the third day of final hearing was noticed for 9:30 a.m., on February 20, 2012. At 9:51 a.m., on February 20, 2012, the final hearing was announced as being in session. Respondent did not attend the final hearing on February 20, 2012, and has offered no explanation for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order finding that Respondent, ARC Consulting Home Health Agency, Inc., by and through Jasmine J. Allison, Administrator, owes $212,683.06 to Petitioner as an overpayment, plus interest. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of April, 2012.
The Issue The issues in this case are whether Respondent, Edgar Zamora, M.D., committed a violation of Chapter 458, Florida Statutes (2005), as alleged in an Amended Administrative Complaint issued by Petitioner, the Department of Health and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Edgar Zamora, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68598. The Indictment and Conviction. On or about January 27, 2004, Dr. Zamora was indicted in the United States District Court, Southern District of Florida, Case No. 06-20059CR-JORDAN, United States of America v. Heldy Artiles, et al., on one count of Conspiracy to commit offenses against the United States, in violation of Section 18 U.S.C. § 731 (Count 1), and one count of Health Care Fraud, in violation of Section 18 U.S.C. § 1367 (Count 7)(hereinafter referred to as the "Indictment"). The Indictment provides the following identification of Dr. Zamora: Defendant EDGAR ZAMORA was a medical doctor licensed to practice medicine in the State of Florida. He was employed by Miami Health as the clinic's doctor from in or around March 2000 through in or around June 2000. In Count 1 of Indictment, it is alleged that Dr. Zamora and the other named defendants committed Health Care Fraud Conspiracy against "Medicare and Private Insurance Companies, in connection with the delivery of and payment for health care benefits, items, and services” in order to "enrich themselves" in the following manner: submitting false and fraudulent claims to health care benefit programs; (b) paying kickbacks and bribes to Medicare beneficiaries and PIP-insured individuals so that they would serve as fictitious patients, thereby furthering the billing fraud scheme; (c) concealing the submission of fraudulent claims to health care benefit programs, the receipt and transfer of fraud proceeds, and the payment of kickbacks; and (d) diverting fraud proceeds for the defendants' personal use and benefit. Page 11 of the Indictment. The Indictment alleges the following facts concerning the Medicare Program: The Medicare Program ("Medicare") was a federal program that provided free or below-cost health care benefits to certain individuals, primarily the elderly, blind and disabled. The benefits available under Medicare are prescribed by statute and by federal regulations under auspices of the United States Department of Health and Human Services, through its agency, the Centers for Medicare and Medicaid Services ("CMS"). Individuals who receive benefits are referred to as beneficiaries. Medicare was a "health care benefit program," as defined by Title 18, United States Code, Section 24(b). Part B of the Medicare Program was a medical insurance program that covered, among other things, certain physician services, medical testing, medications, and durable medical equipment. Durable medical equipment, or "DME," is equipment that is designed for repeated use and for a medical purpose, such as a knee or back brace, nebulizer, or oxygen concentrator. The Medicare Part B Program was administered in the State of Florida by two entities, Palmetto Government Benefits Administrators ("PGBA") and Blue Cross/Blue Shield of Florida ("BC/BS"), both of which were private health insurance carriers that contracted with HCFA to receive, adjudicate, and pay Medicare Part B claims. PGBA processed and paid claims for DME and related supplies, including the associated medications. BC/BS processed and paid claims for physician and medical clinic services and diagnostic tests. Pages 5 and 6 of the Indictment. In part, the Indictment describes the following Medicare billing procedures: Qualified DME or pharmaceutical companies who supplied medical equipment or medications in connection with the Medicare program applied for and were given a "supplier number." The supplier number allowed DME suppliers and pharmaceutical companies to seek reimbursement for medical equipment and medications that they had supplied to Medicare beneficiaries. Medical clinics or doctors who provided services in connection with the Medicare program applied for and were given a "provider number," which allowed them to seek reimbursement for medical services that they had provided to Medicare beneficiaries. In order to receive payment from Medicare, a participating DME or pharmaceutical supplier was required to submit a health insurance claim form, known as a Form HCFA-1500 ("HCFA 1500"), and/or an Electronic Media Claim ("EMC"), which set forth, among other things, the beneficiary's name and unique Medicare identification number, the name and identification number of the doctor who ordered the item or medication, the item or medication that was supplied, the date of service, and the charge for the item or medication. Likewise, in order for participating medical clinics and doctors to receive payment form Medicare, the providers were required to submit a HCFA 1500, and/or EMC, which set forth, among other things, the beneficiary's name and unique Medicare identification number, the date of service, a description of the medical procedures and services provided to the patient, the physician who performed or ordered the procedures or services, and the amount charged for each procedure and service. Medicare, through BC/BS and PGBA, would generally pay 80% of the allowed cost for medical services, DME, and medications that were medically; necessary and ordered by licensed doctors or other qualified health care providers. Payments under the Medicare program were often made directly to the doctor or other provider or supplier of the medical goods or services rather than to the patient/beneficiary. For this to occur, the beneficiary was required to assign the right of payment to the provider or supplier. Thereafter, the provider or supplier assumed responsibility for submitting its bill directly to Medicare and obtaining payment. From January 1997 through March 2000, Miami Health Billed Medicare electronically by EMC under its assigned Medicare provider number, 40779. In or around March 2000, Miami Health was suspended by the Medicare Program, after which Miami Health billed Medicare by EMC using the Medicare provider number assigned to the doctor that was working at the clinic at the time. From in or around March 2000 through in or around June 2000, Miami Health billed Medicare under the provider number assigned to EDGAR ZAMORA, 27247. . . . . . . . . Pages 6 through 8 of the Indictment. With regard to Dr. Zamora, the Indictment alleges the "manner and means of the conspiracy" consisted of the following: 12. GUILLERMO GARCIA, EDGAR ZAMORA, and JOSE GARRIDO signed the altered, typed doctor notes and prescriptions, knowing that the notes and prescriptions had been changed and called for medically unnecessary tests, therapy, medications, and DME, and, in some cases, knowing that the altered notes reflected office visits that had not occurred. Page 13 of the Indictment. Finally, as to Count 1, Dr. Zamora is alleged to have committed the following "overt acts" with regard to "Car Accident Patient N.R.": 27. On or about June 19, 2000, EDGAR ZAMORA signed a typed final examination medical report concerning staged accident patient N.R., knowing that the typed note included false patient diagnoses and also a disability rating of 4% that had been fabricated by HELDY ARTILES. Page 18 of the Indictment. As to Count 7 of the Indictment, it was charged that Dr. Zamora and the other named defendants "in connection with the delivery of and payment for health care benefits, items, and services," committed Health Care Fraud against Medicare by: submitting or causing to submit false and fraudulent claims to Medicare and the Private Insurance Companies for the costs of medical tests, medical equipment, therapy, and medications; (b) paying kickbacks to Medicare beneficiaries and PIP-insured patients so that they would serve as patients, thereby furthering the fraudulent billing scheme; (c) concealing the submission of false and fraudulent claims to Medicare and the Private Insurance Companies; and (d) diverting fraud proceeds for the defendants' personal use and benefit. Page 25 of the Indictment. In particular, Dr. Zamora was alleged to have committed Health Care Fraud against Medicare by using his Medicare health care provider number when he submitted claims related to Car Accident Patient N.R. for an "[o]ffice visit, x- rays, tests, and physical therapy . . . ." Page 26 of the Indictment. On March 26, 2005, Dr. Zamora was found guilty by jury verdict of both counts against him of the Indictment. On December 5, 2005, United States District Judge Adalberto Jordan adjudicated Dr. Zamora guilty of the criminal offense charged against him in the Indictment. Judge Jordan sentenced Dr. Zamora to 27 months’ incarceration on both counts, to run concurrently; two years of supervised release; and restitution of $221,726.96. The Relationship of Dr. Zamora's Conviction to the Practice of Medicine. In light of the jury conviction on both counts of the Indictment relating to him, it is concluded that Dr. Zamora engaged in the activities alleged in the Indictment. All of those activities related to the practice of medicine. But for Dr. Zamora's license to practice medicine in Florida, Dr. Zamora would not have been able to commit the crimes for which he was convicted. It was his license to practice medicine that facilitated his ability to work at Miami Health, to obtain a Medicare provider number, and to fully participate in the Medicare program. All of the activities he engaged in, such as signing necessary Medicare documents and medical records backup, were carried out in his capacity as a licensed Florida physician. The crimes for which Dr. Zamora were convicted were crimes "which directly relates to the practice of medicine." Prior Disciplinary Action. Dr. Zamora has not previously been disciplined by the Board of Medicine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Edgar Zamora, M.D., has violated Section 458.331(1)(c), Florida Statutes (2005), as described in this Recommended Order; requiring that he pay an administrative fine of $5,000.00; and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 20th day of July, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2007. COPIES FURNISHED: Diane K. Kiesling Assistant General Counsel Office of the General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33331-2156 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Petitioner, Todd T. Catlette, applied for full registration as a general securities representative. Mr. Catlette is not licensed to call or offer to sell securities in the State of Florida. The Department of Banking and Finance denied the application by letter dated January 22, 1988. Ex. 3 The application was denied based upon the following facts: On May 3, 1988, the Petitioner pleaded nolo contendere to a third degree felony, filing a false and fraudulent insurance claim, in violation of Section 817.234(1)(a), Fla. Stat., and pleaded nolo contendere to a second degree felony, second degree grand theft, in violation of Section 812.014(2)(b), Fla. Stat. He was placed on probation for one year and ordered to make restitution to the insurance company in the amount of $2,148.00. Upon failing to make restitution, his probation was extended three years. He was discharged from probation on April 28, 1987. On August 3, 1979, the Petitioner pleaded nolo contendere to sale and delivery of cocaine and possession of cocaine with the intent to sell and deliver, both second degree felonies, in violation of Section 893.03(2)(a)4, Fla. Stat. He was sentenced to two years in state prison. On November 22, 1976, the Petitioner pleaded nolo contendere to possession of less then five grams of marijuana and possession of drug paraphernalia, a first degree misdemeanor; and was placed on three months probation. After serving his sentences in state prison, the Petitioner obtained a college education. The Petitioner testified that he was innocent of the possession of marijuana offense in 1976 and innocent of the fraudulent insurance claim and theft offenses in 1985. He presented a deposition of a detective involved in the fraudulent insurance claim case which was admitted as hearsay evidence to support his assertion of innocence. It appears from the deposition and the testimony of Mr. Cutlette that the detective relied solely upon the testimony of one witness as support for the charges of false insurance claim and theft. The foregoing evidence is not sufficiently credible to prove by the preponderance of the evidence that the Petitioner was innocent of the fraudulent insurance claim and grand theft offense. When presented with an opportunity for a trail, the Petitioner pleaded nolo contendere.
Recommendation For these reasons, it is recommended that the Respondent issue its final order denying the application of Todd T. Catlette for full registration as a general securities representative. DONE AND ENTERED this 24th day of June, 1988. WILLIAM C. SHERRILL, JR. 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 24th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1161 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by parties. Findings of Fact proposed by the Petitioner: None Findings of fact proposed by the Respondent: 1. These are matters of law, and thus not appropriate as proposed findings of fact. 3.-4., 10. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. COPIES FURNISHED: Todd T. Catlette 3450 Palencia Drive, No. 1317 Tampa, Florida 22618 Reginald R. Garcia, Esquire Assistant General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32388-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts, Esquire General Counsel Office of the Comptroller Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350
The Issue The issue presented for decision herein is whether or not Respondent's license should be disciplined based on conduct, set forth hereinafter in detail as contained in an Administrative Complaint filed herein dated February 14, 1986. INTRODUCTORY STATEMENT By Administrative Complaint dated February 14, 1986, Petitioner alleged that Respondent, while a licensed physician in the State of Florida, presigned blank prescriptions which prescriptions were later completed by one Dr. Jorge Horstmann in violation of Section 458.331(1),(aa), Florida Statutes. The complaint also alleged that Respondent never examined the alleged patient, Vivian Perez, who was an undercover operative, nor did the Respondent maintain any patient records for the treatment and thereby violated Section 458.331(1)(q), Florida Statutes, by failing to keep written medical records justifying the course of treatment and by prescribing a legend drug other than in the course of the physician's professional practice; that Respondent committed gross or repeated malpractice or failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances in violation of Section 458.331(1)(t), Florida Statutes. The Administrative Complaint further alleged that Respondent billed medicaid for various visits for the undercover operative, as well as fictitious children, and made or filed reports with Medicaid which the Respondent knew to be false and thereby failed to perform statutory or legal obligations placed upon a licensed physician in violation of Sections 458.331(1)(1) and 817.234, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received during the hearing and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Alfonso Rodriguez-Cuellar is, and has been at times material hereto, a licensed physician in the State of Florida having been issued license number MME002856. During June, 1983, Respondent shared office space with Dr. Jorge Horstmann who was at the time, not a licensed medicaid provider. Respondent was licensed as a medicaid provider during times material and was so licensed during June, 1983. During June, 1983, an investigation was undertaken by the State of Florida Auditor General's Office and as a result of that investigation, Special Agent Vivian Perez visited Respondent's office and requested to be attended by Dr. Horstmann. At the time, Special Agent Perez presented the receptionist, Emerson Figeuroa, her Medicaid card listing herself and (3) fictitious children as medicaid recipients. During that visit, four (4) Medicaid files were prepared by office staff and Special Agent Perez was seen by a person who identified himself as Dr. Horstmann. Dr. Horstmann appeared and testified in these proceedings and acknowledged that he, in fact, treated Special Agent Perez. Dr. Horstmann did not examine Agent Perez. Dr. Horstmann was carrying a prescription pad while he attended to Agent Perez and Agent Perez observed Dr. Horstmann complete prescriptions from the pad with the exception of the signatures. (Petitioner's Composite Exhibit 1). Dr. Horstmann left the room where he was attending Agent Perez. When he returned, they were signed by Respondent. Agent Perez was then given the prescriptions and she took them to a pharmacy and filled them by purchasing non- pharmaceutical items. (TR 89-92). Emerson Figeuroa was employed by Respondent as a medical assistant and receptionist since approximately 1982. Ms. Figeuroa denied that Respondent presigned prescriptions for Dr. Horstmann and contends that records are maintained for all of Respondent's patients. Ms. Figeuroa recognized Respondent's signature on two prescriptions received in evidence as being Respondent's signature. (Respondent's Exhibit 1 and 2). At the same time, Ms. Figeuroa denied that Respondent's signature appeared on prescriptions introduced which were the prescriptions given to Agent Perez. Hugh Fitzpatrick, a medical investigator for Petitioner, interviewed Respondent during June of 1983. Investigator Fitzpatrick's main concern was whether Respondent was presigning prescriptions for Dr. Horstmann. Investigator Fitzpatrick inquired of Respondent regarding that claim and Respondent admitted that he signed the prescriptions given to Agent Perez for Dr. Horstmann; that he signed the prescriptions as a friend and that he knew that Dr. Horstmann had been licensed and simply had not been provided with the documentation reflective of the fact that he (Dr. Horstmann) had been licensed as a Medicaid Provider. Respondent testified on his own behalf and openly admitted that the signatures on the prescriptions provided to Agent Perez were his although he questioned the "MD" next to his signature. (TR 58-60). Respondent also conceded that he never treated a patient by the name of Vivian Toledo (a/k/a Vivian Perez); he had no medical records for Toledo (Perez) or her children and acknowledged that he medically treat a large volume of patients, a great majority of which are Medicaid recipients. Respondent conceded that he received a check from Medicaid for $1,900 reflecting payment for the medical treatment of a large number of medicaid patients. Respondent conceded that although he signed the medicaid forms, the forms are prepared by other office personnel. Respondent usually does not verify the names of the individuals on the list to ascertain if he, in fact, treated each patient listed before he executes the form requesting payment from medicaid. (TR 64 and 86). Respondent is duty bound to ensure that he only bills medicaid for patients that he has, in fact, treated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby Recommended that Respondent's license be suspended for a period of (30) days. It is further recommended that the Board impose an administrative fine against Respondent in the amount ($2,000). Recommended this 10th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 10th day of February, 1987. COPIES FURNISHED: Joel S. Fass, Esquire Colodny, Fass & Talenfeld, P.A. 626 N. E 124 Street North Miami, Florida 33161 Franz A. Arango, Esquire 1999 S. W. 27th Avenue Miami, Florida 33145 Dorothy Faircloth, Executive Director 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this matter concerns the amount of monetary sanctions that the Agency for Health Care Administration may impose on Respondent pursuant to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070(7)(e) based on the overpayment of Medicaid reimbursements made to Respondent.
Findings Of Fact AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, otherwise known as the Medicaid program. See § 409.902(1), Fla. Stat. AHCA is responsible for administering and overseeing the Medicaid program in the State of Florida. See § 409.913, Fla. Stat. AHCA's Bureau of Medicaid Program Integrity (“MPI”) is the unit within AHCA that oversees the activities of Florida Medicaid providers and recipients. MPI ensures that providers abide by Medicaid laws, policies, and rules. MPI is responsible for conducting audits, investigations, and reviews to determine possible fraud, abuse, overpayment, or neglect in the Medicaid program. See §409.913, Fla. Stat. At all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients. Respondent had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 0742236-00. The Medicaid provider agreement is a voluntary contract between AHCA and the provider. As an enrolled Medicaid provider, Respondent was subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. Pursuant to its statutory authority to oversee the integrity of the Medicaid program, MPI conducted an audit of Respondent's paid claims for Medicaid reimbursement for the period from April 1, 2011, through October 31, 2013. The audit’s purpose was to verify that claims AHCA paid to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid laws, policies, and applicable rules. As a result of the audit, AHCA determined that Respondent was overpaid in the amount of $177,717.69 for services that, in whole or in part, were not covered under the Medicaid program. AHCA also sought to impose sanctions upon Respondent consisting of an administrative fine of $34,192.30,2/ as well as investigative, legal, and expert witness costs of $1,127.66. Respondent is a dentist specializing in pediatric dentistry. He has practiced for over 43 years. He maintains offices in both Clearwater and Jacksonville, Florida. Respondent’s dental practice serves almost exclusively developmentally disabled children. Many of his patients suffer from severe behavioral, emotional, mental, physical, or social handicaps or other medical issues. Respondent’s practice is primarily based on referrals of special needs patients who other pediatric and general dentists send to him for treatment. Approximately, 95 percent of Respondent’s patients are Medicaid recipients. At the final hearing, AHCA presented the testimony of Robi Olmstead, an AHCA administrator with MPI. Ms. Olmstead's responsibilities include overseeing MPI investigations and supervising AHCA staff’s performance of Medicaid audits. With over 10 years of experience in her position, Ms. Olmstead is very familiar with and knowledgeable about how MPI conducts Medicaid audits. Specifically related to this matter, Ms. Olmstead, in her official capacity with AHCA, signed the FAR that MPI presented to Respondent on April 8, 2015. Ms. Olmstead described MPI’s Medicaid audit of Respondent’s Medicaid claims.3/ Using AHCA's data support system, MPI investigators accessed the complete universe of Respondent’s Medicaid claims. MPI selected the period from April 1, 2011, through October 31, 2013, as the audit period. MPI calculated the amount of overpayment based on its review of a random sample of 35 recipients for whom Respondent submitted 507 claims during the audit period. AHCA then contacted Respondent and requested that he submit documents to substantiate his Medicaid claims for the 35 recipients. In response to AHCA’s request for documents, Respondent provided his records of service and billing for each of the 507 claims for the 35 recipients. AHCA, upon receiving Respondent’s records, forwarded them for a peer review. The peer reviewer evaluated the records and prepared worksheets reflecting a determination regarding the nature of the dental services rendered for each claim, and whether such claim was eligible for payment under the Medicaid program. Based on the peer reviewer’s determination, MPI calculated that Respondent had been overpaid for all claims he presented within the audit period by a total of $177,717.69. After determining that Respondent had been overpaid, AHCA prepared and sent to Respondent a Preliminary Audit Report (“PAR”), dated February 12, 2015. The PAR notified Respondent that the audit revealed that he had been overpaid by $177,717.69. On April 8, 2015, AHCA issued the FAR. The FAR served as AHCA’s final determination that Medicaid had overpaid Respondent. The FAR set forth the following bases for AHCA’s determination that Respondent was overpaid: Documentation Supported a Lower Level of Service (“LL”): The peer review of Respondent’s records revealed that the documentation Respondent submitted for payment did not support level of service for some claims. These claims may involve an established patient that Respondent coded as a new patient (which is billed at a higher level). AHCA believed that Respondent should have used a different code for the service he provided. AHCA considered the Medicaid payments made to Respondent for these services in excess of the appropriate amount an overpayment.4/ No Documentation (“No Doc”): Respondent’s records revealed that some medical services for which Respondent billed and received payment were incomplete or lacked sufficient documentation. AHCA considered the Medicaid payments for these services an overpayment.5/ Not Medically Necessary (“NMN”): The peer review of Respondent’s claims revealed that the documentation did not support the medical necessity of some of the claims Respondent presented for payment. (Respondent explained that this category of claims related to occlusal x-rays he obtained from dental patients for whom he also had taken panorex x-rays. The peer review considered these charges duplicative.) Therefore, AHCA considered the Medicaid payments made to Respondent for these claims an overpayment.6/ Erroneous Coding (“EC”): The peer review of Respondent’s claims revealed that some services rendered were erroneously coded on the submitted claim. These services documented one activity, but another billing code was identified. Consequently, AHCA considered Medicaid payments made to Respondent for claims in excess of the appropriate service an overpayment.7/ Behavioral Management (“BM”) Services Not Reimbursable: The peer review of Respondent’s claims revealed that Respondent did not adequately explain his claims for BM services. Respondent should not have requested payment for BM without explaining why BM was used or the specific type of BM techniques utilized for treatment. Furthermore, the peer review determined that Respondent should not have included BM in his claim if he also billed for either sedation or analgesia on the same date of service. AHCA considered Medicaid payments made to Respondent for these BM claims an overpayment.8/ The FAR also notified Respondent that AHCA had calculated and was seeking to assess a fine of $35,543.54 (since lowered to $34,192.30). Ms. Olmstead explained that, in accordance with section 409.913(15), (16), and (17) and rule 59G- 9.070, AHCA must apply sanctions for violations of federal and state laws, including Medicaid policy. AHCA determined to sanction Respondent in the form of an administrative fine. After determining that Respondent had been overpaid for Medicaid claims, AHCA prepared a Documentation Worksheet for Imposing Administrative Sanctions (“Worksheet”). The Worksheet was signed on April 7, 2015, by an AHCA investigator. Ms. Olmstead also signed the Worksheet after she reviewed and approved the form. The Worksheet specified how AHCA calculated the fine it sought to impose on Respondent for the Medicaid claims violations listed above. As noted on the Worksheet, AHCA found a total of 58 claims violated Medicaid laws, policies, and rules. The specific number of claims in violation were: lower level of service 38; no documentation, 9; not medically necessary, 8; error in coding, 2; and behavior management/illegal documentation, 1. The Worksheet also contained a section that read: Confirm that you have considered the following via checking the box: I have considered the serious & extent of the violation. I have considered whether there is evidence that the violation is continuing after written notice. I have considered whether the violation impacted the quality of medical care provided to Medicaid recipients. I have considered whether the licensing agency in any state in which the provider operates or has operated has taken any action against the provider. If the sanction to be imposed is suspension or termination, I have considered whether the sanction will impact access by recipients to Medicaid services. The AHCA investigator placed a checkmark by each consideration. AHCA did not use any additional forms or methods to document its consideration of these factors. AHCA did not provide the Worksheet to Respondent with the FAR. The Worksheet is an internal AHCA document the investigator and administrator use to calculate the amount of a fine. However, AHCA did include in the FAR the final monetary sanction which AHCA calculated on the Worksheet ($35,543.54). Ms. Olmstead stated that AHCA considered Respondent’s failure to comply with Medicaid laws a “first offense.” Pursuant to rule 59G-9.070(7)(e), AHCA shall impose a $1,000 fine per claim found to be in violation for a first offense. Accordingly, based on the 58 claims reviewed for the audit, AHCA calculated a fine of $58,000.00. Thereafter, rule 59G-9.070(4)(a) instructs AHCA to limit the monetary sanction for a “first offense” violation of Medicaid laws under rule 59G-9.070(7)(e) to twenty percent of the amount of the overpayment. Thus, AHCA reduced the amount of the fine it seeks to impose on Respondent to $34,192.30. Finally, Ms. Olmstead testified that the FAR cited to several documents that AHCA distributes to guide and inform providers of the types of services that the Medicaid program covers and how to correctly bill Medicaid for these services. The documents applicable to this matter are: the 2007 Florida Medicaid Dental Services Coverages and Limitations Handbook; the 2008 Florida Medicaid Provider General Handbook; the 2011 Florida Medicaid Dental Services Coverages and Limitations Handbook; and the 2012 Florida Medicaid Provider General Handbook. Respondent testified on his own behalf. Respondent testified that this Medicaid audit was the first he has experienced. Prior to this matter, he has never been fined or sanctioned for any violations of the Medicaid program. Respondent also emphasized that this Medicaid audit did not show that he ever rendered sub-quality dental care to any of his patients. Respondent acknowledged that he currently receives the Medicaid Handbooks electronically. Respondent conceded that he is bound to adhere to the Medicaid guidelines in the Handbooks. Respondent offered the following explanations for the claims he submitted which resulted in the overpayments: Not Medically Necessary: Respondent understood that AHCA determined that his claims for occlusal x-rays were considered duplicative. Respondent explained that the occlusal x-rays reveal tooth decay and disease that panorex x-rays do not. Furthermore, Respondent’s use of the occlusal x-rays did not result in any harm to his patients. On the contrary, Respondent expressed that these x-rays only enhanced the services and treatment he provided to his patients. Behavioral Management (“BM”) Services: The BM fee compensates the provider for the effort and time it takes to prepare a patient for dental treatment or control the patient during treatment. In many cases, if Respondent cannot employ BM techniques, he cannot render effective dental treatment. Respondent charges approximately $35 for BM services. Insufficient Records: Respondent stated that the medical notes and records that his office maintains meet or exceed Florida standards. However, certain of his records apparently did not comply with Medicaid program requirements. Respondent further asserted that AHCA never alleged that he sought payment for services he never delivered or were not completed. Sabrina Blake is the office manager for Respondent’s dental practice. As part of her responsibilities, she handles billing practice inquiries. Regarding AHCA’s claim of insufficient records to support the BM charges, Ms. Blake explained that Respondent marked “BM” on the patients’ records to indicate that a behavior management technique was used. The error was that Respondent did not write out exactly what behavior management technique was used during the treatment. Medicaid rules required additional information or documentation. Therefore, while Respondent’s practice did not provide the requisite notation to support a Medicaid payment for BM charges, Respondent did actually provide the service claimed. Respondent stated that AHCA never provided him the opportunity to correct any alleged violations or billing errors. Respondent claims that none of the disallowed charges or medical services were submitted to intentionally obtain an unauthorized payment from the Medicaid program. AHCA did not produce evidence to contradict Respondent’s assertion. Prior to the final hearing, the parties entered into an agreement wherein Respondent agreed to repay to AHCA the full amount of the overpayment Respondent received from the Medicaid program.9/ Based on the overpayment, AHCA seeks to impose on Respondent an administrative fine of $34,192.30. Accordingly, the primary issue for the undersigned to consider is whether AHCA is authorized under the applicable law to impose on Respondent an administrative sanction in the form of a fine as a result of his violation of Medicaid laws, rules, or policy. Based on the evidence presented at the final hearing, AHCA proved by clear and convincing evidence that Respondent failed to comply with provisions of the Medicaid laws.10/ As detailed below, section 409.913 and rule 59G-9.070 authorize AHCA to impose a fine on Respondent in the amount of $34,192.30 based on his violations of the Medicaid program. Consequently, a fine of $34,192.30 should be assessed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order imposing an administrative fine of $34,192.30 for Respondent’s first offense of violating provisions of Medicaid provider publications adopted by AHCA rules, Florida or federal laws or regulations governing the Medicaid program, or the provider’s Medicaid agreement with AHCA. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2016.
The Issue The issue for determination is whether Petitioner was overpaid by the Medicaid program as set forth in Petitioner's Final Agency Audit Report dated June 12, 2006 for the period January 1, 2002 through December 31, 2004.
Findings Of Fact AHCA audited certain of Dr. Negrette's Medicaid claims pertaining to services rendered between January 1, 2002 and December 31, 2004, hereinafter the audit period. Dr. Negrette was an authorized Medicaid provider during the audit period. During the audit period, Dr. Negrette had been issued Medicaid provider number 061422000. No dispute exists that, during the audit period, Dr. Negrette had a valid Medicaid Provider Agreement with AHCA. For services provided during the audit period, Dr. Negrette received in excess $79,523.70 in payments for services to Medicaid recipients. By a preliminary audit report dated August 25, 2005, AHCA notified Dr. Negrette that a preliminary determination was made that he was overpaid by the Medicaid program in the amount of $137,051.25. Subsequently, by a FAR dated June 12, 2006, AHCA notified Dr. Negrette that, after a review of all documentation submitted, it determined that he had been overpaid by the Medicaid program in the amount of $79,523.70, thus, reducing the amount of the overpayment. The FAR further provided how the overpayment was calculated using a sample of the claims submitted during the audit period, including the statistical formula for cluster sampling; and indicated that the statistical formula was generally accepted and that the statistical formula showed an overpayment in the amount of $79,523.70, with a 95 percent probability of correctness. Dr. Negrette agrees that the mathematical computation of the audit is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Jesus Negrette, M.D., received overpayments from the Medicaid program in the amount of $79,523.70, during the audit period January 1, 2002 through December 31, 2004, and requiring Jesus Negrette, M.D., to repay the amount of overpayment. DONE AND ENTERED this 5th day of February, 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 5th day of February, 2007.
The Issue The Board filed a ten count complaint in this matter. The central issue is whether Dr. Horstmann billed Medicaid for office visits for children who he did not see and who, in fact, did not exist. The Board of Medicine contends that Dr. Horstmann's conduct violated Section 458.331(1)(i), Florida Statutes, by making or filing a report the licensee knew to be false, violated Sections 817.234 and 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician, and that his conduct violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when that trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. The Board also contends that by pleading no contest to a criminal charge of Medicaid fraud, Dr. Horstmann is subject to discipline.
Findings Of Fact Dr. Horstmann is a 63 year old Cuban-born medical doctor. He had been licensed to practice medicine and had been doing so in Cuba for 35 years. He was permitted to leave Cuba in 1979. He was licensed to practice medicine in the State of Florida on February 14, 1983. At the time of the investigation which gave rise to these charges he had been licensed to practice medicine in Florida for 4 months. In early 1983, the Auditor General's Office of the State of Florida, Medicaid Fraud Unit, investigated certain pharmacists which computer audits showed to have excessive Medicaid charges. Dr. Horstmann was not a target of this investigation, which was headed by Detective John Nulty. The Mariano Gonzalez pharmacy was targeted. Dr. Horstmann knew Mariano Gonzalez since childhood. He had given Gonzalez business cards, asking Gonzalez to refer patients to him with allergy- related problems who did not have a doctor, as Dr. Horstmann wished to concentrate on allergy-related health problems. Those business cards were available at the pharmacy. During the investigation of the Mariano Gonzalez pharmacy, agent Vivian Perez entered the pharmacy and acted as a Medicaid recipient using the name Vivian Toledo. At the Mariano Gonzalez pharmacy on June 5, 1983, she was advised to see Dr. Horstmann and was given a Horstmann business card with the pharmacy stamp on the back of it. Apparently, the Mariano Gonzalez pharmacy was engaged in a scheme to defraud Medicaid. It allowed Medicaid recipients to present scripts for prescriptions which were to be paid by Medicaid, and to purchase merchandise rather than prescription drugs or medicine for an amount equal to what would have been charged for the medication. In the course of her investigation, agent Perez went to Dr. Horstmann's office on June 7, 1983. She presented Dr. Horstmann's secretary with a Medicaid card issued to her as part of the investigation bearing the name Vivian Toledo, and the names of the three fictitious children, Julio, Roger and Rafael Toledo. Dr. Horstmann did not examine agent Perez or any of the fictitious children, but as a result of the visit he gave agent Perez prescriptions for her and the three children. Agent Perez took these prescriptions to the Mariano Gonzalez pharmacy and used them to purchase non-pharmaceutical items. These prescriptions were not signed by Dr. Horstmann, but by Dr. Rodriguez-Cuellar, with whom Dr. Horstmann worked. Dr. Horstmann did not sign the prescriptions because, although he was a licensed physician, he had not yet received a Medicaid provider number of his own. Agent Perez again visited Dr. Horstmann on July 12, 1983. He did not examine her or the fictitious children but gave agent Perez additional prescriptions for herself and the children, which he signed. They were used to purchase non- pharmaceutical items at the Mariano Gonzalez pharmacy. Agent Perez visited Dr. Horstmann on a second occasion in July and in August 1983. Each time she received prescriptions for herself and the fictitious children which were used to purchase non-pharmaceutical items at the Mariano Gonzalez pharmacy. Dr. Horstmann prepared medical charts for each of the fictitious children, which were introduced into evidence, indicating that these children had been examined by him. Dr. Horstmann signed the Medicaid health insurance claim forms for the children dated July 9, 12, 20 and 27; and August 17 and 23. Medicaid was billed a total of $100.00 for Julio Toledo, $70.00 for Roger Toledo and $90.00 Rafael Toledo based on these forms. Dr. Horstmann understood when he wrote on the chart that he had seen the children that a bill would be prepared and sent to Medicaid. He signed all of the reimbursement forms. He received payment from Medicaid on the claims he submitted. Dr. Horstmann was charged with Medicaid fraud and entered a plea of no contest. A certified copy of the order placing him on probation was offered for identification but not received in evidence. After the certified copy of the probation order was obtained, an order was entered by the Circuit Court for the 11th Judicial Circuit sealing the records of Dr. Horstmann's conviction.
Recommendation Based upon the violations of the Medical Practice Act which Dr. Horstmann committed, including filing false Medicaid reports and billing Medicaid for treating fictitious children, as well as making deceptive, untrue and fraudulent representations in the practice of medicine, it is RECOMMENDED: That Dr. Horstmann's license be suspended for a period of six (6) months. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 February, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1753 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner (Treating the paragraphs of the findings of fact as if they had been serially numbered.) Covered in Findings of Fact 2 and 4. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 11 and 12. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 3. Sentence 2 covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary. Sentence 1 covered in Finding of Fact 5. Sentences 2 and 3 rejected as unnecessary. Covered in Finding of Fact 6. Rejected as unnecessary Covered in Finding of Fact 1. Covered in Finding of Fact 4. Generally rejected as a recitation of testimony rather than findings of fact. Rejected because whether Dr. Horstmann was familiar with Medicaid procedures is not relevant. It is clear that he understood that he submitted bills for visits which never occurred. Rejected because Dr. Horstmann's beliefs as to agent Perez' financial condition in no way justifies submitting fraudulent medicaid reimbursement requests. Covered in Finding of Fact 11. Rejected because I accepted the testimony of agent Perez that she did not provide the symptoms to Dr. Horstmann that are found in the charts for the fictitious children. Accepted in the Conclusions of Law because there was no evidence concerning bills submitted by Dr. Rodriguez- Cuellar being reimbursed by Medicaid. Covered in Finding of Fact 9. Covered in Finding of Fact 11. Covered in Finding of Fact 12. The amount received was greater than $45.00. To the extent necessary, covered in Finding of Fact 10. Covered in Findings of Fact 10 and 11. Rejected because I find that Dr. Horstmann knew that he was billing Medicare for visits which never occurred. This was not merely the result of an error by a receptionist. Rejected as irrelevant. Covered in Finding of Fact 12. Rejected as a recitation of testimony, not a finding of fact. COPIES FURNISHED: Joel S. Fass, Esquire COLODNY, FASS & TALENFELO, P.A. 626 N.W. 124th Street North Miami, Florida 33161 John W. Thornton, Jr., Esquire THORNTON & ROTHMAN, P.A. 2860 Southeast Financial Center Miami, Florida 33131 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
