The Issue This is a license discipline case in which the Petitioner, by means of a one-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of Section 458.331(1)(c), Florida Statutes (2002).
Findings Of Fact The Respondent, Eduardo S. Mendez, M.D., was born in Cuba, was reared in Cuba, and was educated in Cuba. His education in Cuba included a degree in Medicine. He came to the United States of America in 1995. Shortly after moving to this country, the Respondent became the owner of a retail pharmacy and medical equipment business in Florida. The Respondent did not have a license to practice pharmacy in Florida. On the basis of conduct which took place between July of 1998 and June of 2000, an Information was issued in Case No. 02-20859 in the United States District Court for the Southern District of Florida charging the Respondent with engaging in a conspiracy to pay and receive health care kickbacks in violation of Title 18, United States Code, Section 371. The basic facts forming the basis for the criminal charge are described as follows in the Information: Medicare was a "Federal health care program" as defined in Title 42, United States Code, Section 1320a-7b(f)(1). Confortec D.M.E., Inc. ("Confortec") was a pharmacy located in Miami, Florida. Confortec was authorized by Medicare to submit claims to Medicare Part B for reimbursement of the cost of certain medications that Confortec dispensed by prescription to Medicare beneficiaries. Defendant EDUARDO S. MENDEZ was a resident of Miami and the sole owner of Confortec. Defendant EDUARDO S. MENDEZ offered to pay kickbacks to various patient recruiters so that they would provide the names and Medicare identification numbers of Medicare beneficiaries, along with prescriptions relating to these beneficiaries. Confortec filled these prescriptions and then filed claims with Medicare for reimbursement of the cost of the prescribed medications. After receiving payment on these claims from Medicare, defendant EDUARDO S. MENDEZ used a portion of the payments to pay kickbacks to the patient recruiters or their associates. * * * 12. Using a portion of the money received from Medicare payments, defendant EDUARDO S. MENDEZ paid or caused to be paid approximately $200,000 in kickbacks to the patient recruiters or their associates so that the recruiters would continue to refer Medicare beneficiaries and related Medicare prescription business to Confortec. Following his arrest, the Respondent cooperated extensively with the Federal Bureau of Investigation (FBI) and assisted the FBI in their investigation of his own activities, as well as in their investigation of similar criminal activities by others. Because of the Respondent's assistance to the FBI, the federal prosecutor recommended a substantial reduction in the sentence that might otherwise have been imposed on the Respondent. On November 14, 2000, the Respondent entered into a plea agreement in which he agreed "to plead guilty to an Information or an Indictment that charges him with the crime of conspiracy to commit an offense against the United States, namely, a violation of Title 42, United States Code, Section 1320a-7b(b)(2)(knowingly and intentionally offering and paying kickbacks and bribes to any person to induce the referral of individuals for the furnishing of services or items for which payment may be made under a Federal health care program), in violation of Title 18, United States Code, Section 371." On or about February 12, 2003, a United States District Judge signed a judgment in which the Respondent was adjudicated guilty of the criminal offense described above. The Respondent's sentence was three years of probation, three months of home confinement (with electronic monitoring), 150 hours of community service, and a fine of $100.00. The Respondent has fulfilled all of the terms of his sentence. Although the recruitment methods described above are prohibited by federal law and are a crime, that criminal activity does not involve any element of fraudulent billing seeking reimbursements from the Medicare program for services or items that were not provided. To the contrary, all of the prescriptions for which Confortec sought Medicare reimbursement were prescriptions that were actually filled for medications that were actually provided to the Medicare beneficiaries. During the period from July of 1998 through June of 2000, the Respondent did not have a license to practice medicine in Florida. Accordingly, the criminal conduct described above was not related to the Respondent's practice of medicine, because the Respondent was not practicing medicine at that time. As discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the practice of medicine by the physicians who wrote the prescriptions that were filled in the course of the subject criminal activity. As also discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the ability to practice medicine. The Respondent is presently a physician licensed to practice medicine in the State of Florida. He has been so licensed since November of 2001. His license number is 83615. The criminal charges described above are the only criminal charges that have ever been filed against the Respondent. There has never been any prior disciplinary action taken against the Respondent's license to practice medicine.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violating Section 458.331(1)(c), Florida Statutes (2002), and imposing the following penalties: Suspending the Respondent's license to practice medicine for a period of nine months; Imposing an administrative fine in the amount of five thousand dollars; and When the Respondent is reinstated following the nine- month period of suspension, placing the Respondent on probation for a period of two years subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2005.
Findings Of Fact At all times relevant hereto, Eric A. Baum was a licensed physician in the State of Florida having been issued License No. ME 0027880. He is board certified as a psychiatrist and board eligible in internal medicine (Exhibit 3). Respondent has never established an active practice in Florida, although in the latter part of 1985 he maintained an office at his residence and later, for approximately 2 months, in a downtown office building in Sarasota. Between August 19, 1985 and December 30, 1985, Respondent prescribed Bentyl, Ritalin, Fiorinal, Cylert, Urecholine and Laradopa to "Terri Leigh", generally in quantities of 100 for Ritalin (10 mg.) and Fiorinal (Tab). During this period, 1250 10 mg. of Ritalin and 1550 tabs of Fiorinal were prescribed (Exhibit 14). Terri Leigh is an alias used by Respondent for his wife, Terri Baum (Exhibit 7). Ritalin is a Class II controlled substance, Fiorinal is a Class III controlled substance and Cylert is a Class IV controlled substance. During part of this time until delivery on October 21, 1985, Terri Baum was pregnant. Medical records prepared by Respondent for Terri Baum would indicate the medication was prescribed for headaches and depression. Both Ritalin and Fiorinal are contraindicated during pregnancy. Between July 30, 1985 and December 30, 1985, Respondent wrote prescriptions for "Pam Leigh" for 200 Fiorinal, 600 Cylert (37.5 mg.) and 500 Ritalin (10 mg.), (Exhibit 10). Pam Leigh is an alias for Respondent's then 16 year old daughter, Pam Baum. Respondent contends that Pam is hyperkinetic and suffered from migraine headaches, and the medication was prescribed for those diagnoses. However, Pam denies ever taking any drugs or having any illness requiring such medication. Mark Baum, Pam's twin brother, denies that Pam is or was hyperkinetic or that he ever saw her take any medication. This latter evidence is deemed to be more credible than Respondent's testimony (Exhibit 3). The quantity of controlled substances prescribed for Terri and Pam by Respondent during the periods above-noted are greater than should be prescribed for the symptoms noted and were inappropriate. On April 15, 1987, Respondent pleaded nolo contendere to the offense of obtaining drugs by fraud in the Circuit Court of Sarasota County, Florida, adjudication of guilt was withheld, and he was placed on probation for one year with certain terms (Exhibit 11). At the time Respondent's residence (and office) were searched by police pursuant to a search warrant seeking patient's records for Terri and Pam Baum, those records could not be found, and Respondent denied knowledge of their whereabouts. The records (Exhibits 6 and 7) were subsequently produced by Respondent. It is likely that Respondent prepared Exhibits 6 and 7 subsequent to the arrest of Terri Baum shortly before the search was conducted. Subsequent to the arrest, Terri Baum and Pam Baum on February 26, 1986 had an appointment with Dr. Sayers Brenner, M.D., a psychiatrist, at which Terri requested Ritalin, Cylert and Fiorinal for herself and Ritalin and Cylert for Pam. Dr. Brenner, at the time unaware of Terri's arrest, prescribed a 10-day supply of these drugs and told Terri that he would not continue to supply drugs to her and that he did not treat adolescent patients. Although an appointment was made for a subsequent visit in two weeks, neither Terri nor Pam returned. Although no charges were made in this regard, evidence was presented in Exhibit 8 that Respondent wrote prescriptions for himself for Lasix, Lanoxin and Urecholine. No evidence was submitted from which a determination can be made that Respondent has a drug dependency problem, although the evidence is clear that if Respondent does not have a drug dependency problem, his wife does, and that prescriptions were written by Respondent to several fictitious persons to support this dependency.
Findings Of Fact The Respondent Aida Mendez Rodriguez is a licensed medical doctor, having been issued license number ME 0030121. The last known address of the Respondent is 1300 N.W. 119th Street, Miami, Florida 33167. On March 9, 1977, the Respondent was initially licensed by the Petitioner Florida Board of Medical Examiners. Her licensure was based on an application for examination filed with the Petitioner Board on or about February 13, 1975. The application was signed and sworn to before a notary public. The Respondent acknowledged "carefully" reading the questions in the application and answering them "completely, without reservations of any kind", and declared under penalty of perjury that the answers and all statements made therein were true and correct. Further, the Respondent agreed that if any false information was furnished in the application, any such act would constitute cause for the suspension or revocation of her license to practice medicine in Florida. (See Petitioner's Exhibit No. 1) In the 1975 application, Petitioner's Exhibit No. 1, the Respondent Rodriguez stated that her medical education occurred at the University of Havana, Cuba, and her degree in medicine was obtained in Cuba in October, 1953. The Respondent's application listed her residency or postgraduate training at a hospital emergency room from 1940 to 1961. This training included the "Emergency Hospital of Havana, Cuba, 1953 to 1968, and Calixto Garcia Hospital (Residency), 1954 to 1957, IM and GP." See Petitioner's Exhibit 1. The Respondent Rodriguez listed on her application two physicians, Rolando Pozo, M.D. and Mario Soler, M.D., with whom she worked in Havana, as her recommending physicians. Neither Dr. Soler nor Dr. Pozo had any personal knowledge that the Respondent Rodriguez practiced medicine in Cuba during the years listed on the application. Moreover, the information furnished by the Respondent on her application regarding the chronology and dates of her practice and/or employment in Cuba, conflicted with the Respondent's testimony at final hearing that she did not practice medicine in Cuba after 1959.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered, indefinitely suspending the medical license of the Respondent Rodriguez until verifiable evidence is presented to the Board of Medical Examiners which establish that the Respondent meets the statutory and rule criteria for licensure as a physician. DONE and ENTERED this 9th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 9th day of September, 1983.
The Issue The primary issue in this case is whether the crime of which Respondent was convicted directly relates to the practice of medicine or the ability to practice. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Grigory Kliger, M.D., was licensed to practice medicine in the state of Florida, having been issued license number ME82106. Petitioner has regulatory jurisdiction over licensed physicians such as Dr. Kliger. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Dr. Kliger with one such offense, namely, being found guilty of a crime which directly relates to the practice of medicine. On February 1, 2005, in a case styled United States v. Kliger, No. 05-CR-12, which was then pending in the U.S. District Court for the Eastern District of New York, Dr. Kliger pleaded guilty to one count of a single-count information. The criminal offense with which he had been charged was conspiracy to commit health care fraud as defined in sections 1347 and 1349 of Title 18 of the U.S. Code. During the plea colloquy, Dr. Kliger testified under oath as follows regarding his criminal conduct: Between 1996 and June 2003, I knowingly and willfully agreed with others to defraud no- fault insurance companies which provided healthcare benefit programs that effected [sic] interstate commerce. * * * I was a doctor and had an ownership interest in several medical clinics, including medical clinics in Brooklyn, Queens and the Bronx, New York and elsewhere which submitted false claims to insurance companies for medical benefits, items and services that were never performed or delivered, were not ordered by a physician or were not necessary for treatment. When I caused this [sic] false claims to be submitted and reimbursed by the insurance, I knew watt [sic] I was doing was wrong. The magistrate judge found that Dr. Kliger's testimony was given knowingly and voluntarily and that there was an adequate factual basis for his plea; she recommended that the district judge accept Dr. Kliger's plea of guilty. Some time later, the court accepted the plea and, based thereon, adjudicated Dr. Kliger guilty as charged, entering a judgment of conviction on or about August 1, 2008. The judgment was later amended at least twice, most recently on March 13, 2012, to correct the spelling of Dr. Kliger's last name, which had been inscribed erroneously as "Kligor." Based on this conviction, the court sentenced Dr. Kliger to a term of 18 months' incarceration in a federal prison, to be followed by three years of supervised release with special conditions. In addition, Dr. Kliger was ordered to make restitution to the various insurance companies and clinics he had conspired to defraud. The total amount of the required restitution payments is approximately $2.5 million. The crime of which Dr. Kliger was convicted is directly related to the practice of medicine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Kliger guilty the offense described in section 458.331(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of medicine. It is further RECOMMENDED that the Board of Medicine revoke Dr. Kliger's medical license and impose an administrative fine of $10,000. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 9th day of April, 2013. COPIES FURNISHED: Yolonda Y. Green, Esquire Robert A. Milne, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Mark L. Pomeranz, Esquire Pomeranz & Associates, P.A. 1920 East Hallendale Beach Boulevard Suite #802 Hallendale Beach, Florida 33009 Allison Dudley, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
