The Issue The issues to be determined here concern disciplinary action to be taken against Respondent for those administrative offenses pertaining to the controlled substances Talwin, Dilaudid and Paregoric dispensed by Scottie Drug Store in Duval County, Florida, during the period April 2, 1981, to March 23, 1982, in violation of various provisions of Chapter 465, Florida Statutes. These contentions made by the State of Florida, Department of Professional Regulation, are more particularly described in the Administrative Complaint, DPR Case No. 0022147.
Findings Of Fact Howard E. Staats is a pharmacist who has been issued a license by the State of Florida, Department of Professional Regulation, Board of Pharmacy. The license number is 0007704. At times relevant to this proceeding, Staats practiced pharmacy in Jacksonville, Florida. At all times pertinent to the Administrative Complaint, which is the focus of this action, Staats was the managing pharmacist at American Apothecaries, Inc., which does business as Scottie Drug Store at 41 Arlington Road South, Jacksonville, Florida. A copy of Respondent's most recent license may be found as Petitioner's Exhibit No. 1, admitted into evidence. Petitioner's Exhibit No. 2, admitted into evidence, is a copy of the permit for American Apothecaries. Sometime within the period March 23, 1982, through March 29, 1982, an audit was conducted at the Scottie Drug Store. The audit revealed that in the period April 2, 1981, through March 23, 1982, the drug store had purchased 66,900 tablets of Talwin, 50 mg., had sold 29,373 tablets of that drug, had lost by robbery or theft, 1,000 tablets of the drug, leaving 36,527 tablets of Talwin unaccounted for. During that same audit period, the pharmacy purchased 4,000 tablets of Dilaudid, 4 mg., selling 3,025 tablets of that drug, losing by robbery or theft, 200 tablets of the drug and failing to account for 775 tablets of the drug. Finally, during the audit period, 2,064 ounces of Paregoric had been purchased and 699 ounces sold, with the remaining amount of 1,285 ounces being unaccounted for. See Petitioner's Exhibit No. 4. Talwin is a Schedule IV controlled substance within the meaning of Chapter 893, Florida Statutes. Dilaudid is a Schedule II controlled substance within the meaning of Chapter 893, Florida Statutes. Paregoric is a Schedule III controlled substance within the meaning of Chapter 893, Florida Statutes. The audit which was conducted at the Scottie Drug Store revealed numerous prescriptions for the controlled substance Talwin, 50 mg., written on prescription blanks of Drs. W. W. Shell, Jr., and L. T. McCarthy, Jr., which had allegedly been signed by those physicians, when in fact the patients for whom the prescriptions were written were unknown to the physicians and the signatures of the physicians were forgeries. Those prescriptions are depicted in Petitioner's Exhibit No. 5, admitted into evidence. During the period covered by the audit, it was shown that Staats filled a number of prescriptions for various patients for the controlled substance Talwin, which had been written on prescription pads of Methodist Hospital and Baptist Medical Center in Jacksonville, Florida, and signed by individuals who are not physicians having hospital privileges at those medical centers nor practicing as physicians in the Duval County area. Copies of those prescriptions may be found as Petitioner's Exhibit No. 6, admitted into evidence. In the course of the time sequence related to the audit review process, it was discovered that Staats had refilled numerous prescriptions for controlled substances on more occasions than had been authorized by physicians, namely prescription No. 51632 was refilled twice although the physician indicated there were to be no refills; prescription No. 51579 was refilled once although the prescription indicated there should be no refills; prescription No. 51639 was refilled twice although the prescription indicated there should be no refills; prescription No. 51217 was refilled once although the prescription indicated there should be no refills; prescription No. 51238 was refilled once although the prescription indicated that there should be no refills; prescription No. 53010 was refilled once although the prescription indicated that there should be no refills; prescription No. 53597 was refilled four (4) times although the prescription indicated that it should only be refilled once; prescription No. 53537 was refilled once although the prescription indicated that it should not be refilled; and prescription No. 53592 was refilled twice although the prescription indicated that there should be no refills. Petitioner's Exhibit No. 7, admitted into evidence, is copies of prescriptions spoken to in this paragraph. Respondent Staats had operated the Scottie store under a lease arrangement during 1979 and 1980, and in January of 1981, took a position as an active pharmacist in that store. After becoming the principal operating pharmacist in the Scottie store, Staats began to receive prescriptions from doctors Shell and McCarthy for the substance Talwin and when a prescription purportedly written by those physicians was in question, Staats would call the office of the physicians for confirmation, which at times would be given over the phone and at other times an indication was made that a call back from the physician's office to Staats would be necessary. Some of the indications of physicians' prescription authority of the substances in question would be placed on a separate log and not on the back of the prescription and on other occasions, the note of the prescription information would be placed on the back of the prescription form and not in the log. Normally, this information would be reflected both in the log and on the back of the prescription. There were occasional circumstances in which the authority was not stated in either place. At approximately the same time as was covered by the audit, Staats began to ask for identification from customers who were seeking prescriptions for Talwin and noted that the demand for that substance declined with the advent of the request for identification. Staats posted a notice in the window of the pharmacy to the effect that state law imposed a fine of $5,000.00 or might cause incarceration for five (5) years for presenting forged prescriptions or conspiring or agreeing with another to have a forged prescription filled. On two (2) occasions Staats called law enforcement officials on a circumstance involving suspect prescriptions and those persons were apprehended. (Poor record keeping and mistakes in estimating the amount of losses due to a robbery and a larceny which occurred in the period covered by the audit contributed to the unaccounted for controlled substances, but those matters of record keeping and theft reports would cause only a slight differential in the disparity, as opposed to explaining the whereabouts of a substantial portion of the missing controlled substances.) Beginning on March 25, 1982, Staats began to keep a daily inventory log on the substance Talwin and a number of other controlled substances. A copy of that log may be found as Respondent's Exhibit No. 9, admitted into evidence. In addition, certain out-of-date and otherwise undesirable controlled substances, Schedules II, III and IV, have been removed from inventory and turned over to appropriate authorities for destruction.
Findings Of Fact At all times relevant hereto, respondent, Edwardo A. Garcia, held physician license number ME 0021719 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners (DPR). Garcia is a 1936 graduate of the medical school at the University of Colombia in Bogota, Colombia. He moved to New York City in 1959 where he completed a residency in neurology and psychiatry. He was then issued a temporary license to practice medicine in the State of New York. In 1973, Garcia relocated to Vero Beach. He received his Florida license the following year and practiced in the field of family medicine until May, 1986 when he sold his practice. He is now retired. Earl D. Tovatt, a sixty-two year male whose complaint against respondent precipitated this proceeding, has a long history of back ailments. He fell off of a bunk bed in 1943, was a passenger in an Army jeep that struck a land mine in 1944, and unsuccessfully attempted to lift a 350 pound woman in 1950. As a result of these unfortunate incidents, Tovatt has used various back braces and orthopedic shoes, and has had at least five myelograms since 1951. He has also been treated by a shopping list of physicians over the years, most of whom were in the Detroit area where he once lived. For back pain, Tovatt began using prescription drugs many years ago. By his own admission he became addicted to painkillers as early as 1979. He began with codeine and empirim, but later switched to pure codeine. He then used percodan, and finally began using demerol in 1977. Demerol is a Schedule II controlled substance and has a high potential for abuse. It can also cause addiction after a short period of use. Access to quantities of demerol was made easier by the fact that Tovatt's wife was a medical doctor at the Doctor's Clinic in Vero Beach. Tovatt received demerol injections from his wife until 1981 when they divorced. Thereafter, Dr. Tovatt continued to give her former husband prescriptions of demerol (one per month) for another year. Beginning in 1982, and continuing until at least December, 1984, Tovatt was treated without charge by Dr. Gold, one of his ex-wife's partners at the clinic. Initially Dr. Gold gave Tovatt one or two injections of demerol per day for pain. By December, 1984, however, Dr. Gold had reduced the injection to one-half of an ampule per day. Because he was still experiencing pain, Tovatt was advised by an unnamed clinic employee in December, 1984 to contact respondent to obtain more demerol. Just prior to Christmas, 1984 Tovatt telephoned Dr. Garcia's office and attempted to make an appointment. After learning that Garcia's office hours were filled, Tovatt requested that Dr. Garcia make a house call to his apartment after 5:00 p.m. That same day, Dr. Garcia visited Tovatt's apartment and was told by Tovatt that he had a lot of pain in his lumbar spine and down his right leg. Without making any tests, obtaining a history, or inquiring about prior medical treatment, Dr. Garcia gave Tovatt an injection of demerol and a shot of valium. For this he charged Tovatt $600, or $300 per shot. Tovatt paid Dr. Garcia in cash. Garcia acknowledged that he knew Tovatt was addicted to demerol at that time. After the first house visit, Tovatt went to respondent's office the next day, and received two more shots for $150 each. When Tovatt complained that the visits were expensive, Dr. Garcia agreed to write Tovatt demerol prescriptions for $1,000 each. Dr. Garcia also insisted that only cash be used, and accordingly no checks were ever given to respondent. In addition, Dr. Garcia asked for and was given $25,000 cash for "one year's privilege of having him write a prescription." Approximately six weeks after the first office visit, Dr. Garcia conducted his first complete physical examination of Tovatt. However, he obtained a patient history from Tovatt during the first office visit on December 19, 1984. Even so, it was inadequate since it failed to contain any interpretations of the patient's history. On each visit he took Tovatt's blood pressure and checked his heart. Also, he noted in his patient records that the patient had "severe back pain, history of slipped disc of 30 years duration with arthritis following a fall. Had been using demerol for long periods of time for the above. He takes biroca, which is vitamin B, for the heart condition. He has had two heart attacks." For the next fourteen months or so, Tovatt continued to obtain one or two prescriptions per week from Dr. Garcia at a cost of $1,000 per prescription. The prescriptions generally contained 25 ampules of demerol per box. They were filled at various pharmacies in the Vero Beach and Melbourne areas. Copies of the prescription have been received in evidence as petitioner's exhibits 3-17 and a compilation is set forth in petitioner's exhibit 18. In all, there were 137 prescriptions for demerol, 15 for valium and 9 for percodan. Valium is a Schedule IV controlled substance while percodan is a Schedule II controlled substance. Finally, ten of those prescriptions had orders for demerol and valium on the same prescription while one had an order for demerol, percodan and valium. This was inappropriate. In addition to the above prescriptions, several times Tovatt purchased bottles or boxes of demerol directly from Dr. Garcia. Each bottle was the equivalent of twenty shots while a box had twenty-five ampules, or the equivalent of twenty-five shots. On one occasion he was charged $7,000 for one or two bottles, on another $9,000 for one box of 25 ampules, and $8,000 on another occasion for four boxes. Becoming concerned that Dr. Garcia would stop writing prescriptions, Tovatt purchased an air dehumidifier at a cost of $312.70 for Garcia's birthday. On several occasions Garcia suggested to Tovatt that he include Garcia as a beneficiary in his will. In Garcia's presence, Tovatt directed his attorney to prepare a codicil to his will and bequeath $75,000 to Dr. Garcia. This was executed on November 20, 1985. The codicil is still in effect. At Dr. Garcia's request, Tovatt gave respondent a copy of the codicil. Each time that Tovatt requested a prescription, Garcia provided him with one. Tovatt's injections numbered from five to six a day when he first began seeing Dr. Garcia, and numbered around fifty per week towards the end. Tovatt suffered side effects from the massive amounts of painkillers, including passing out on one occasion and being unable to move on another. He also lost an undisclosed amount of weight. In all, Tovatt paid Dr. Garcia approximately $200,000 in cash over a fourteen month period, which represented his entire life savings. He is now in the process of filing a malpractice suit against respondent. In early 1986 Tovatt obtained four final prescriptions for demerol from Dr. Garcia. When he found no drug store would honor them, he refused to pay Dr. Garcia. Dr. Garcia came to his apartment at least six times demanding payment for the same. Tovatt then mailed the unfilled prescriptions to a DPR investigator. In February, 1986 a DPR investigator interviewed Dr. Garcia concerning the Tovatt prescriptions. At that time Dr. Garcia acknowledged he had treated Tovatt and had charged him $1,000 per prescription for demerol. He also admitted this to his office receptionist. During the same interview, the investigator observed that Dr. Garcia's Drug Enforcement Agency (DEA) registration had expired on September 30, 1985. This was necessary in order to write certain prescriptions. Finally, when the administrative complaint in this case was issued in April, 1986 respondent told Tovatt "we're in trouble" and that Tovatt was "going to pay for my lawyer." Tovatt also filed a complaint with the City of Vero Beach Police Department in April, 1986. While a police officer tape recorded the call, Tovatt telephoned respondent on April 29 and requested a prescription of demerol. Since Tovatt still owed Garcia $4,000 for the four unfilled prescriptions, Dr. Garcia demanded payment of that sum. Tovatt said it would take time to raise the money. Tovatt then told Garcia he knew of a pharmacy in Cocoa Beach that would fill a prescription. Garcia said he didn't want to use Tovatt's name on the prescription, but agreed to use a fictitious name. Garcia also said he would require the usual amount, or $1,000, up front before he would give Tovatt the prescription. According to the uncontradicted testimony of a board certified family practitioner, Dr. Garcia should have taken a complete patient history on the first visit to Tovatt's apartment and at least "a cursory examination" of the patient. Because the patient complained of persistent pain, it would have been prudent to take additional tests and refer Tovatt to a neurologist or orthopedist after several visits. Garcia also had insufficient records to justify the course of treatment rendered, that is, the dispensing of various pain killers and sedatives. It was further inappropriate to prescribe addictive drugs to a patient in that quantity, combination and duration of time "for anything except a terminal illness." In this case, Tovatt did not have a terminal illness. In short, Dr. Garcia did not practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician would recognize as acceptable under similar conditions and circumstances. Finally, the fees charged by Dr. Garcia were clearly excessive and represented an exploitation of the patient for financial gain. Moreover, it is not customary in the medical community to charge a patient for writing a prescription. In December, 1985 a pharmacist in Vero Beach became concerned that Tovatt was filling an excessive number of prescriptions for demerol and percodan. He called Dr. Garcia who explained Tovatt had a back condition caused by a brain tumor and that Tovatt needed large amounts of painkillers until he received an operation in San Francisco. However, Tovatt's medical records contained no reference to a brain tumor or an operation/consultation in San Francisco. Until 1985 Dr. Garcia had no prior complaints filed against him by any person. Dr. Garcia portrayed Tovatt as a desperate man who he knew to be a drug addict. Although he contended he did not wish to treat Tovatt, he stated he did so only because Tovatt constantly approached him for drugs, and because he feared Tovatt might harm him. Dr. Garcia denied receiving excessive fees from Tovatt, and estimated he charged Tovatt only $20,000 while he was a patient. However, this version of events is not deemed to be credible and is accordingly discredited.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all violations charged in Counts I-VII of the administrative complaint and that his medical license be REVOKED. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 17th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1490 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 4. Covered in findings of fact 3 and 4. Covered in finding of fact 5. Covered in finding of fact 3. Covered in finding of fact 5. Covered in finding of fact 5. Covered in finding of fact 15. Covered in finding of fact 7. Covered in finding of fact 15. Covered in finding of fact 15. Covered in finding of fact 15. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 9. Covered in finding of fact 11. Covered in finding of fact 13. Covered in finding of fact 16. Covered in finding of fact 16. Covered in finding of fact 15. Covered in finding of fact 15. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 13. Covered in findings of fact 8 and 15. Covered in finding of fact 15. COPIES FURNISHED: E. Raymond Shope, Jr., Esquire Stephanie A. Daniel, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert L. Pegg, Esquire P. O. Box 1000 Vero Beach, Florida 32961 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy J. Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent should take final action to deny the renewal of Petitioner's license to practice physical therapy on the ground that Petitioner has been terminated for cause from the Florida Medicaid program, as proposed in Respondent's December 16, 2009, Notice of Intent to Deny Renewal.
Findings Of Fact 7. On September 30, 2009, AHCA entered a Final Order terminating Cueto from participation as a provider in the Florida Medicaid program. AHCA imposed this sanction against Cueto pursuant to Florida Administrative Code Rule 59G-9.070(8) (2008)——as it was authorized to do under section 409.913(13), Florida Statutes (2009)——because she had been convicted of grand theft on November 5, 2008. As of the final hearing in this case, Cueto had not been reenrolled as a Medicaid provider. * * * In the Administrative Complaint which initiated Case No. 11-1272PL, the Department charged Cueto under section 456.072(1)(kk), Florida Statutes (2009), which provides: Being terminated from the state Medicaid program pursuant to s. 409.913, any other state Medicaid program, or the federal Medicare program [shall constitute grounds for discipline], unless eligibility to participate in the program from which the practitioner was terminated has been restored. Cueto was in fact terminated from the state Medicaid program pursuant to section 409.913, and she had not been reenrolled therein at the time of the final hearing in this case. She is therefore guilty of the offense defined in section 456.072(1)(kk), Florida Statutes (2009). Cueto contends that she was not terminated from Medicaid "for cause" as the Department has alleged. Section 456.072(1)(kk) does not require, as a prerequisite to imposing discipline, that the Medicaid provider have been terminated for cause. Nevertheless, Cueto was terminated for cause, that being her conviction for grand theft, which crime relates to the practice of physical therapy. At the time AHCA terminated Cueto's participation as an enrolled provider, the penalty guidelines then in effect for violations of Medicaid-related laws required that the sanction of termination be imposed for a violation of section 409.913(13)(b), which statute directs AHCA to immediately terminate the participation of a Medicaid provider who has been convicted of a crime relating to the practice of the provider's profession. See Fla. Admin Code R. 59G- 9.070(8)(a)2. (2008). The same rule defined "termination" as "a twenty-year preclusion from 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." Fla. Admin Code R. 59G- 9.070(2)(y). The Department might have alleged that Cueto's termination had been for cause because under the Board's current disciplinary guidelines, which took effect on June 30, 2010, a termination for cause from the Medicaid program warrants a harsher penalty than does a termination "not . . . for cause." Fla. Admin. Code R. 64B17- 7.001(1)(ff)(2010). Although this Board rule does not define "cause," AHCA's current disciplinary guidelines, which became effective on September 7, 2010, provide that a "termination pursuant to this rule is also called a 'for cause' or 'with cause' termination." Fla. Admin. Code R. 59G- 9.070(3)(p)(2010). Neither rule, however, applies in this case, which must be decided under the disciplinary guidelines in effect at the time the offense was committed. See Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996); Willner v. Dep't of Prof'l Reg., 563 So. 2d 805, 806 (Fla. 1st DCA 1990). Cueto was terminated from the Medicaid program in September 2009. Rule 64B17-7.001 (2007), which was in effect at that time, does not prescribe a punishment for the offense defined in section 456.072(1)(kk), Florida Statutes (2009). Cueto can be sanctioned for this offense, however, through section 486.125(1)(k), Florida Statutes (2009), which, as the Department alleged in the Administrative Complaint, provides that a violation of chapter 456 is grounds for discipline. Under the disciplinary guidelines in effect in September 2009, the range of penalties for a first offense involving section 486.125(1)(k) is "from a minimum fine of $1,000 and/or a letter of concern, up to a maximum fine of $5,000 and/or suspension of license for two years followed by two years of probation." Fla. Admin. Code R. 64B17-7.001(1)(x)(2007). (A final order has yet to be issued in DOAH Case Nos. 11-1271PL and 11-1272PL. Pursuant to section 120.569(2)(l)2., Florida Statutes, one must be issued no later than October 17, 2011.) On July 26, 2011, the parties filed a Joint Status Report in the instant case, advising that "th[is] matter is still unresolved" and a one-day hearing would be necessary. As noted above, the final hearing in this case was held on August 19, 2011. Two witnesses, Michael West and Petitioner, testified at the hearing. In addition to Mr. West's and Petitioner's testimony, three exhibits (Petitioner's Exhibit 1, and Respondent's Exhibits 1 and 2) were offered and received into evidence. With input from the parties, the undersigned set the deadline for the filing of proposed recommended orders at 20 days from the date of the filing of the hearing transcript with DOAH. The hearing Transcript, consisting on one volume, was filed with DOAH on September 6, 2011. Both parties timely filed their Proposed Recommended Orders on September 26, 2011.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order declining to deny the renewal of Petitioner's license to practice physical therapy in the absence of a renewal application,11 and finding that Petitioner has not demonstrated an entitlement to an award of attorney's fees and costs. DONE AND ENTERED this 29th day of September, 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 29th day of September, 2011.
The Issue Whether Respondent, a medical doctor licensed to practice in the State of Florida, committed the offenses set forth in the Administrative Complaint, and, if so, the penalties that should be imposed.
Findings Of Fact Respondent has worked for approximately eight years in hospital emergency rooms since the completion of his residency. Respondent has been employed by Emergency Medical Services Association, a group that provides emergency medical services to hospitals, for approximately eight years. Respondent has worked in the largest hospitals in Dade County and has treated thousands of patients without ever having a malpractice claim or complaint filed against him because of his activities as an emergency room physician. Respondent looked for additional employment in late 1987 and early 1988 because he needed to increase his income to support his three children and family, including his parents since his father was ill and had just had open- heart surgery. Respondent found his job with the Institute through an advertisement in the newspaper. The director of the Institute was a Dr. Seedarnee, who was a research immunologist. Respondent testified that he was impressed with Dr. Seedarnee's professional image, the number of diplomas he had on his wall, and that he had affiliations at various hospitals and worked with a number of physicians. Respondent knew that Dr. Seedarnee was not a physician and that the "hemavision" procedure used by Dr. Seedarnee was not an acceptable medical procedure. Respondent was told by Dr. Seedarnee that Respondent's responsibilities would solely be to see patients and to conduct physical examinations on patients. Dr. Seedarnee showed Respondent how the "hemavision" process worked and used the process with patients who came into the office. Respondent was expected to work at the Institute from approximately 9:00 a.m. to either 4:00 or 5:00 p.m. While employed at the Institute, Respondent was also working at Memorial Hospital Emergency Room from midnight until 8:00 a.m. Respondent was working or traveling to work between 16 and 20 hours each work day. Respondent received a salary at the Institute and did not receive any commission, profit sharing, or bonus. Respondent knew that he was one of only two licensed physicians at the Institute. Respondent's agreement with the Institute was that the office staff would handle the actual paperwork and that all remuneration would go directly to the Institute. Respondent was not directly involved in the billing procedures or process of the Institute. Respondent did not see or review any health insurance claim forms, he did not sign any health insurance claim forms, he never received any checks payable to him from any insurance providers, and he was not involved in collecting any money at the Institute. The signatures on the health claim forms in Petitioner's Exhibits 4, 5, and 6 that appear to be those of the Respondent were not signed by the Respondent. Respondent failed to properly supervise or prevent the insurance claims from being filed by the Institute. Respondent was not aware of the amounts being billed or the exact services represented by the billings, but he knew that the patients involved in this proceeding would be requested by the Institute to pay for services rendered to them and he knew that the payment would be made personally by the patient or by an insurance carrier. Respondent further knew that the patients were being required to pay for the "hemavision" process and he knew or should have known that the "hemavision" process was not recognized in any field of medical practice. Respondent permitted his name, title, and provider number to be used by his employer to bill for the unauthorized "hemavision" process. Respondent thereby enabled, authorized, and assisted others to prepare and/or submit fraudulent insurance claims. Dr. Seedarnee, not being a licensed provider, was unable to prepare, sign, and submit a medical license claim for reimbursement for the "hemavision" process performed by Dr. Seedarnee on Respondent's patients without Respondent's knowledge and consent. Respondent admitted that the medical histories he performed on patients at the Institute were cursory and inadequate. Despite knowing that these medical histories were cursory and inadequate, Respondent permitted the Institute to bill his patients and their insurance carriers for these services. After complaints were filed relating to the operation of the Institute, Respondent voluntarily resigned his position with the Institute. Since Respondent left the Institute, his employment has been exclusively as an emergency room physician. Respondent expressed remorse for his role in occurrences at the Institute. Respondent testified that he has learned from this experience and has the desire to educate others, such as medical students, about the scope of responsibilities of physicians in order to help prevent students from making some of the same mistakes Respondent made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which adopts the findings of fact contained herein. The Final Order should find that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count I of the Administrative Complaint. The penalty for this violation should be the issuance of a letter of reprimand, the assessment of an administrative fine in the amount of $2,500, and the imposition of a two year term of probation under indirect supervision. The Final Order should find that Respondent violated the provisions of Section 458.331(1)(k), Florida Statutes, as alleged in Count II of the Administrative Complaint. The penalty for this violation should be the assessment of an administrative fine in the amount of $2,500, and the imposition of a two year term of probation under indirect supervision. The Final Order should find that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count III of the Administrative Complaint. The penalty for this violation should be the issuance of a letter of reprimand and the assessment of an administrative fine in the amount of $250. It is further recommended that the terms of probation recommended above run concurrently and contain such terms and conditions as the Board of Medicine deems appropriate. DONE AND ENTERED this 24th day of March 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March 1994. COPIES FURNISHED: Kenneth J. Metzger, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald S. Lowy, Esquire Sharon L. Christenbury, Esquire Law Offices of Ronald S. Lowy Barnett Bank Building 420 Lincoln Road, PH/7th Floor Miami Beach, Florida 33139 Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are: (1) Whether Respondent violated sections 409.913, Florida Statutes, as alleged in the Sanction Letter dated January 18, 2012, by failing to have documentation evidencing the receipt of Core Assurances training in six employees' files; failing to have documentation evidencing the receipt of required HIPAA training in one employee file; and failing to have documentation evidencing the receipt of Zero Tolerance training in one employee file2/; and (2) if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner is the state agency responsible for administering the Florida Medicaid Program pursuant to chapter 409. Petitioner's duties include operating a program to oversee the activities of Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913(1), Fla. Stat. To that end, Petitioner is authorized to conduct investigations of Medicaid providers to determine compliance with the Medicaid program. § 409.913(2), Fla. Stat. Respondent is an enrolled Medicaid provider providing home-based and community-based services to the developmentally disabled in a residential habilitation setting.3/ Respondent became an enrolled Medicaid provider in April 2004, and has been an enrolled Medicaid provider at all times pertinent to this proceeding. Medicaid Provider Agreement To become enrolled as a Medicaid provider for the developmentally disabled in Florida, a provider applies with Petitioner and the Agency for Persons with Disabilities ("APD"). If the provider is approved for enrollment in the Medicaid program, it enters into a Medicaid Provider Agreement ("MPA") with Petitioner. The MPA establishes the terms and conditions of the provider's participation in the Medicaid program. A key condition is that the provider agrees to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program, including the applicable Medicaid Handbooks. The Florida Medicaid Development Disabilities Waiver Services Coverage and Limitations Handbook, dated November 2010 ("DD Handbook"), and the Florida Medicaid Provider General Handbook, dated July 2008 ("General Handbook"), are applicable to this proceeding. Petitioner's Inspection of Respondent's Facility On September 28, 2011, Ms. Gina Selwitz, an Inspector Specialist with Petitioner's Bureau of Medicaid Program Integrity, conducted an unannounced site inspection at Respondent's facility to review Respondent's employee records and recipient files for compliance with applicable Medicaid program requirements. As part of the inspection, Ms. Selwitz reviewed the records of six employees for documentation that they had received required training in a range of areas, including Core Competency, Health Insurance Portability and Accountability Act ("HIPAA") compliance, and Zero Tolerance Training, as required under state and federal law and rules and the General Handbook and DD Handbook. Ms. Selwitz determined that required documentation showing Core Assurances training was missing from six of Respondent's employees' files. She also determined that required documentation showing HIPAA training was missing from the file of one of Respondent's employees. Additionally, she determined that required documentation showing Zero Tolerance training was missing from the file of one of Respondent's employees. Demand Letter Regarding Submittal of Missing Information While conducting the compliance inspection, Ms. Selwitz hand-delivered to Respondent a demand letter dated September 28, 2011. The demand letter stated in pertinent part: Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid program to the above provider number. The Medicaid-related records to substantiate billing for the recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. In addition, please complete the attached questionnaire and submit it along with the copies of the Medicaid- related records. Please submit the documentation and the attached Certificate of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. The referenced questionnaire and printout were not attached to the demand letter. Ms. Selwitz provided Respondent a handwritten list of items that she determined were missing from its files and that needed to be submitted in response to the demand letter. Respondent's Responses to Demand Letter and Sanction Letter On October 12, 2011, Respondent's representative, Mr. Orukotan, sent Ms. Selwitz electronic mail requesting that she send the editable Developmental Services Medicaid Provider Questionnaire form so Respondent could complete and submit it by October 14, 2011. After further electronic mail exchange, Ms. Selwitz provided the form to Mr. Orukotan on October 18, 2011. Respondent submitted the completed Questionnaire on November 3, 2011. In addition, Respondent submitted its Certificate of Completeness of Records and the other items that were requested in Ms. Selwitz's handwritten list provided with the demand letter. The handwritten list did not identify employee training documentation for Core Assurances, HIPAA, and Zero Tolerance as missing from Respondent's files; accordingly, Respondent did not provide that documentation as part of its November 3, 2011, submittal. Subsequently, Petitioner issued a Sanction Letter, dated January 18, 2012, which in part alleged that Respondent failed to have documentation in its files evidencing the receipt of employee training in Core Assurances, HIPAA, and Zero Tolerance. After receiving the Sanction Letter, Respondent submitted documentation of employee training in Core Assurances, HIPAA, and Zero Tolerance to demonstrate its compliance with the Medicaid program documentation requirements. Ms. Selwitz claimed that in addition to the handwritten list, she had given Respondent a typewritten list that identified other specific information, including the employee training documentation, that she determined missing from Respondent's files and needed to be provided pursuant to the demand letter. Respondent credibly testified that he never received this typewritten list of additional requested items. In support of Ms. Selwitz's testimony, Petitioner provided, as a supplemental exhibit, a typewritten form entitled "Residential Rehabilitation Provider." At the top of the form were three spaces to be filled in with the facility's name and the date and time of inspection; however, no information regarding Respondent's facility or its inspection was filled in the spaces, which were left blank. The form generally requested a range of items, including "[a]ll employee records (include Level II (FDLE and FBI) background check information)[4/]" but did not specifically request that Core Assurances, HIPAA, or Zero Tolerance employee training documentation be provided. The form further stated: "please provide the following records so that they may be reviewed on-site . . ."; This statement was followed by a list of items. However, Petitioner's facility inspection checklist and notes did not identify these items as missing from Respondent's files.5/ Rather than comprising an additional list of information that Ms. Selwitz prepared and provided to Respondent to specifically identify missing information to be submitted pursuant to the demand letter, the Residential Rehabilitation Provider list instead appears to be a general form list that Petitioner provides before or at the time of facility inspection. Under any circumstances, the form's lack of specificity regarding employee training documentation for Core Assurances, HIPAA, and Zero Tolerance would not have given Respondent notice that Petitioner had determined such documentation was missing from its files and needed to be provided as part of its response to the demand letter. The credible evidence establishes that Respondent was not given this typewritten form or otherwise notified that Petitioner had determined that employee training documentation for Core Assurances, HIPAA, and Zero Tolerance was missing from its files and needed to be provided pursuant to the demand letter. Respondent's Compliance With Record-Keeping Requirements Section 409.913, Petitioner's rules, the DD and General Handbooks, and federal law require that providers keep and produce as required, specified employee records, including records demonstrating training in a range of areas, including Core Assurances, HIPAA, and Zero Tolerance. Ms. Selwitz testified that if information determined to be missing from a provider's files during a compliance inspection is timely submitted pursuant to the demand letter, the provider is deemed to be in compliance with the applicable record-keeping and document production requirements in state and federal Medicaid law. Here, Petitioner did not notify Respondent that it had determined that certain employee training documentation was missing from its files. Thus, Respondent was not given the opportunity to establish compliance with the record-keeping and document production requirements by timely submitting this documentation in accordance with Petitioner's demand letter. Mr. Orukotan testified that Respondent kept the requested documentation in its employee files and would have provided it, had Petitioner notified Respondent that its inspection determined the documentation was missing. His testimony, which is bolstered by the fact that Respondent did timely submit all information pursuant to the handwritten list provided with the demand letter, is deemed credible and persuasive. As previously noted, Respondent submitted the employee training documentation upon being informed, pursuant to the Sanction Letter, that Petitioner had determined such documentation was missing from its files.6/ Under the present circumstances——where Petitioner failed to afford Respondent an opportunity to demonstrate compliance by timely responding to its demand letter, and where Respondent, when informed of the deficiencies, submitted the requested documentation——the undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that Respondent violated chapter 409, Petitioner's applicable rules, the DD Handbook, the General Handbook, and federal law, as charged in the January 18, 2012, Sanction Letter.7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order determining that Respondent did not violate federal and state Medicaid laws as charged in the January 18, 2012 Sanction Letter. DONE AND ENTERED this 2nd day of October, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 2nd day of October, 2012.
