The Issue The central issue in this case is whether the jeopardy assessment filed by the Department against Petitioner should be affirmed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The petitioner, Albert Charles Harris, is also known as Bert or Albert Harris. During the month of July, 1986, Petitioner was employed to copilot a flight from Florida to Colombia and to return to an airstrip located near Lakeland, Florida. The private flight was arranged for the purpose of bringing 460 kilograms of cocaine into the State of Florida. The airplane was owned by a drug importation organization that arranged transportation for drugs from Colombia to the United States. Cocaine is a controlled substance enumerated in Section 893.03, Florida Statutes. Richard Bahmann was employed as the pilot for the July flight in which Petitioner participated. Frank Bahmann was also employed to fly a cover plane for the aircraft piloted by Richard Bahmann and Petitioner. The "mission" of the Bahmanns and Petitioner was to assure the safe delivery of cocaine from its owners in Colombia to its owners in Florida. Petitioner did not own the substance transported. Petitioner's employers did not own the substance transported. Petitioner and the others were to be paid based upon the volume of cocaine they were able to transport to Florida. Petitioner participated in the transportation of 460 kilograms of cocaine from Colombia to Florida in July, 1986. The street value of cocaine in the Miami area in July, 1986 was $35,000/kilo. The amounts owed to the Bahmanns and Petitioner for their participation in the transportation was $330,000. There is no evidence as to what amount Petitioner's employers were paid for their part in the transportation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the tax warrant and jeopardy assessment filed against Albert Charles Harris be affirmed. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 30th day of August, 1988. COPIES FURNISHED: Douglas Stratton 505 Lincoln Road Miami Beach, Florida 33139 William Watson and Jeffrey Dikman Department of Legal Affairs Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Sam D. Alexander Executive Director 102 Carlton Building Tallahassee, Florida 32399-0100 William D. Townsend General Counsel 104 Carlton Building Tallahassee, Florida 32399-0100 =================================================================
The Issue Whether the Petitioner is entitled to fees as a prevailing small business party pursuant to Section 57.111, Florida Statutes.
Findings Of Fact The Respondent is the state agency charged with the authority to oversee and govern the Medicaid Program in Florida. To that end the Agency has established a Medicaid Program Integrity Bureau that seeks to detect and prevent fraud and abuse by Medicaid providers. The Petitioner is a pharmacy provider within the purview of the Florida Medicaid Program. As such, it is accountable to the Agency for its accounting practices and records. At all times material to the underlying case in this matter (DOAH Case No. 00-4708) the Agency employed auditors who routinely review the records of Medicaid providers being reimbursed through the Medicaid Program. In DOAH Case No. 00-4708 such auditors determined that the records maintained by the Petitioner did not accurately reflect information needed to verify and support the billings for which the Medicaid Program had reimbursed the Petitioner. In one instance, the Petitioner did not produce authorizations for a substitution of a prescribed drug. In a separate claim, the Agency maintained that the records indicated an invoice shortage for a prescribed medication. In other words, the provider had allegedly billed for a certain amount of drugs but the acquisition records and invoice records did not establish that quantities in a corresponding amount had been purchased for dispensing. The Agency hired Heritage Information Systems to perform an independent audit of the Petitioner. That audit supported findings unfavorable to the Petitioner in that it identified a substitution problem. The substitution of a more expensive drug for a less expensive prescribed drug is not permissible under the Medicaid Program guidelines without authority from the prescribing physician. As it relates to this case, the prescribing physician was Dr. Sachs. Coincidentally, Dr. Sachs owns the Petitioner. At all times material to the auditing period, the Agency interviewed Dr. Sachs, reviewed all records provided to it at the Petitioner's office, and believed that Dr. Sachs had not authorized the substitution of the more expensive drug for the drug prescribed. Thus, when the records indicated the Petitioner had substituted and billed Medicaid for the more expensive drug, a substitution issue was documented. This claim formed the basis for DOAH Case No. 00-4708. Dr. Sachs appeared before the auditors on more than one occasion and did not indicate that he had authorized any substitution for the prescribed item. At all meetings with Dr. Sachs the Agency believed that the doctor had written prescriptions for IVIg. In fact, Dr. Sachs wrote prescriptions for IVIg, Dr. Sachs did not write prescriptions for CytoGam. As to all prescriptions written for IVIg, the Medicaid Program was billed for a drug known as CytoGam. The substitution of CytoGam for IVIg formed the crux of the auditing dispute. Based upon the substitution issue, the Agency elected to attempt recovery against the Petitioner for the unauthorized substitution of the more expensive drug. Not once during the auditing process did the Petitioner or Dr. Sachs allege that the substitution had been authorized. No records were produced during the audit to support the substitution. Nevertheless, in anticipation of trial and within a short time before hearing on the underlying case, the Petitioner produced documents that supported the Petitioner's claim that Dr. Sachs had authorized the substitution. This assertion was directly opposite of the position formerly held by the doctor. Moreover, given the short time remaining until hearing, the Agency had no opportunity to verify the authenticity of the exculpatory documents. Rather than proceed to hearing on the unauthorized substitution claim, the Agency filed a Motion to Relinquish Jurisdiction based upon its decision to rescind the action against the Petitioner. Such motion was treated as a voluntary dismissal. Subsequently, the hearing was canceled and the Division of Administrative Hearings relinquished jurisdiction to the Agency. A final order was entered by the Agency on July 19, 2001. The Agency has not contested the timeliness of the Petitioner's claim for fees and costs pursuant to Section 57.111, Florida Statutes. The Agency does not dispute that the Petitioner is a small business as defined by Section 57.111, Florida Statutes. The Agency maintains its actions were substantially justified in the underlying case and that the Petitioner is not a prevailing party as a matter of law. The Petitioner argues that had the Agency done its job of auditing more thoroughly the actions against the Petitioner would have been avoided. As such, the Petitioner maintains it is entitled to recover fees and costs in the amount of $15,000. The Agency does not dispute that the Petitioner incurred fees and costs in excess of the statutory cap in defense of the underlying case. One of the complicating factors in the case was the issue of whether CytoGam was a permissible substitution to fill a prescription written for IVIg. The issue of permissible substitution then was clouded by the fact that until preparations for hearing were being finalized the Agency did not know that Dr. Sachs had authorized the substitution. Presumably, had there been no authorizations, the question of permissible substitution of the drugs would have been the focus for trial. Once the exculpatory documents were produced by the Petitioner, the Agency's theory of the case was left questionable. Permissible or not, the doctor had authorized the substitution. Because the Petitioner had dispensed the drug billed to the Medicaid Program, the billing of the substituted more expensive drug would have been authorized. Additionally, had Dr. Sachs written prescriptions for CytoGam, the auditing process would have supported the records initially produced by the Petitioner.
Findings Of Fact Based on the record evidence and the admissions made by Sandbank at hearing, the Hearing Officer makes the following findings of fact: Stanley Sandbank has been a licensed pharmacist in the State of Florida since 1975 and has actively engaged in the practice of pharmacy in this state since 1982. During the Fall of 1987, Sandbank was employed as a pharmacist at Rite- Aid Discount Pharmacy 2165 in Miami Beach, Florida. Toward the latter part of November of that year, Rite-Aid management received a telephone call from a Drug Enforcement Administration (DEA) agent, who stated that she had obtained a tip from a reliable informant that Sandbank "was selling drugs on the street." The DEA agent suggested that a controlled audit be conducted to ascertain whether these drugs were being misappropriated from the pharmacy at which Sandbank worked. Rite-Aid management followed the DEA agent's suggestion and performed such a controlled audit. The audit was completed on November 25, 1987. It revealed that 154 dosage units of Percocet and 201 dosage units of Percodan were unaccounted for and missing from the pharmacy's inventory of controlled substances. Percocet is a brand name of a "medicinal drug," as defined in Section 456.003(7), Florida Statutes, which contains Oxycodone, a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Percodan is a brand name of a "medicinal drug," as defined in Section 465.003(7), Florida Statutes, which also contains Oxycodone. Because Sandbank was the only pharmacist on duty during the time the audit was conducted, Rite Aid management believed that he was responsible for the shortages that had been discovered. Sandbank initially denied knowing anything about the matter, but later admitted his transgression. As Sandbank freely admitted, he had removed from the pharmacy and delivered to relatives and neighbors the following approximate quantities of controlled substances without first having been presented with a valid prescription and without Rite-Aid having received payment in full for these controlled substances: CONTROLLED SUBSTANCE QUANTITY Valium 10 mg. 300 Diazepam 10 mg. 400 Percodan 375 Percocet 360 Dilaudid 100 Hycodan Syrup 240 Placidyl 750 mg. 30 Valium, Dilaudid, Hycodan Syrup, and Placidyl are brand names of "medicinal drugs," within the meaning of Section 465.003(7). Valium contains Diazepam, which is a controlled substance listed in Schedule IV of Chapter 893, Florida Statutes. Dialudid contains Hydromorphone, which is a controlled substance listed in Schedule II of Chapter 893, Florida Statutes. Hycodan Syrup contains Hydrocodone, which is a controlled substance listed in Schedule III of Chapter 893, Florida Statutes. Placidyl contains Ethchlorvynol, which is a controlled substance listed in Schecdule IV of Chapter 893, Florida Statutes. Sandbank kept at least a portion of the money he had been given by this neighbors and relatives for having delivered to them the above-described controlled substances. He therefore reaped a financial gain as a result of his unauthorized and surreptitious diversion of these controlled substances from Rite-Aid Discount Pharmacy #2165.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a Final Order finding that Stanley Sandbank violated Section 465.016(1)(e), Florida Statutes, as alleged in the Administrative Complaint, and imposing the above-described disciplinary action which the Department of Professional Regulation has proposed. DONE and ENTERED this 25th day of April, 1989, in Tallahassee, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1989. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stanley Sandbank 4300 Sheridan Street Hollywood, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth D. Easley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the wholesale drug permit applied for by Petitioner on December 6, 1986, should be granted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Vetco International, Inc., d/b/a Pompano Vet Supply, is holder of drug permit No. 0300375 issued for a facility at 125-B South Dixie Highway, Pompano Beach, Florida. (Petitioner's Exhibit 6). Respondent, Department of Health and Rehabilitative Services, (DHRS), is the regulatory agency charged with the administration of Chapter 499, Florida Statutes, which includes the issuance of permits to operate a drug wholesale facility. Petitioner's initial permit was issued effective January 18, 1985. Petitioner filed an application to renew its permit for 1986 in December of 1985. Respondent issued an order of emergency suspension of Petitioner's 1985 permit on December 20, 1985, and shortly thereafter filed an administrative complaint alleging various violations of Chapter 499, Florida Statutes. Citing the allegations of the order of emergency suspension and administrative complaint, Respondent denied the renewal of Petitioner's permit for 1986. Thereafter, on April 27, a notice of dismissal of the administrative complaint was filed and on April 30, 1986, an order was entered "lifting" the order of emergency suspension. During the normal course of business, DHRS sent a notice of renewal to Petitioner 60 days before expiration of its 1986 permit. Petitioner's renewal application for 1987 was received in DHRS's Pharmacy Program Office on or about December 15, 1986. Petitioner's renewal application was timely filed and the proper fees were attached to the application. By letter dated December 17, 1986, Petitioner's renewal application was denied by Richard R. Grant, Administrator, Pharmacy Program Office. (Petitioner's Exhibit 2). It is that denial which is the subject of this proceeding. Respondent presented evidence of twelve attempts to gain entry into Petitioner's facility for the purpose of conducting an inspection and monitoring of the facility to determine compliance with proper labeling, storage and other requirements as set forth in Chapter 499, Florida Statutes. DHRS's drug inspectors Charles Sanchez and Malcom Gregory Jones attempted to inspect Petitioner's place of business on February 19, 1986. They could not gain access through the front door despite the fact that they knocked loudly on the front door and window. They also went around to the back of the facility and knocked. No one answered. The inspectors presented themselves during Petitioner's stated hours of doing business. Inspector Jones was able to identify Mr. Karpinski on the inside of the facility. On Monday, March 17, 1986, Sanchez and Jones along with other agents again visited Petitioner's place of business to attempt an inspection. Petitioner's normal business days were Tuesday through Friday. On that occasion, DHRS agents spoke with owner Karpinski who told them that his attorney had advised him not to permit entry to the agents. Karpinski followed the advice of his counsel and refused entry to the agents. On the following day, Sanchez and Jones returned to attempt an inspection without success. On June 4, 1986, DHRS inspector Robert Loudis visited Petitioner's place of business to perform a routine inspection. Loudis also made unsuccessful attempts to inspect Petitioner's facility on June 4, June 6, June 18 and June 20, 1986. On July 9, 1986, inspector Grant, accompanied by Sanchez, visited Petitioner's facility to conduct an inspection. The agents were unable to gain access to the facility to conduct the inspection. On July 18, 1986, Loudis returned to Petitioner's facility at 2:45 p.m. He was unable to gain access to the facility to conduct the inspection. On October 14, 1986, inspector Loudis reached Thomas Karpinski by telephone. Karpinski agreed to permit an inspection at 2:00 p.m. the following day. Loudis arrived at approximately 2:00 p.m. as agreed to conduct the inspection. He knocked on the door several times and did not received a reply. Petitioner contends that the only time that any agent of Petitioner refused an inspection to DHRS agents was on a non-business day during the time when Petitioner's permit was suspended or the denial of entry was pursuant to advice of counsel. Secondly, Petitioner contends that there is no requirement that a drug warehouse facility be open at any given time, including the days or hours that is specified on the application as "normal business hours." Finally, Petitioner contends that DHRS failed to prove that it delegated to Grant, the authority to deny Petitioner's renewal application. In this regard, DHRS submitted post-hearing, pursuant to leave granted from the undersigned, a delegation of authority which shows that Richard Grant was authorized to grant or deny wholesale drug renewal applications. On December 17, 1986, the Administrator of the Pharmacy Program Office denied Vetco's application for a wholesale permit renewal. This denial was based upon Vetco's refusal to allow inspections of its facility by Pharmacy Program Office Inspectors. (Petitioner's Exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Petitioner's application for renewal of its wholesale drug permit No. 0300375, be DENIED. RECOMMENDED this 28th day of March, 1988, in Tallahassee, Florida. COPIES FURNISHED: John Rodriguez, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Building Tallahassee, Florida 32308 JAMES E. BRADWELL 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 28th day of March, 1988. Karen Coolman Amlong, Esquire Amlong & Amlong, P.A. 101 Northeast Third Avenue Fort Lauderdale, Florida 33301 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented at the final hearing was whether the Respondents' Eddy and Edith Portillo pharmacy permit should be revoked or suspended for the acts of a licensed pharmacist hired by the Respondents who engaged in unprofessional and bad faith dispensing of methaqualone as alleged in the Administrative Complaint filed May 26, 1982. John McDonough, a Department medical investigator, John Statnik, a community pharmacist and licensed pharmacist, and Sidney Simkovitz, a retired pharmacist, testified for the Petitioner. Petitioner's Exhibits 1-3 were offered and admitted into evidence. The Respondent Eddy Portillo testified on his own behalf and Respondents' Exhibit 1 was admitted as a late-filed exhibit. A proposed Recommended Order has been submitted by the Petitioner. To the extent that the proposed findings submitted by Petitioner are not reflected in this Order, they were rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here.
Findings Of Fact The Respondents Eddy and Edith Portillo hold pharmacy permit number 7276 for Federgo Discount Center, which is located at 1881 79th Street Causeway, North Bay Village, Miami Beach, Florida. Federgo Discount Center is a discount dry goods facility housed in a building of approximately 3,000 square feet. A small portion of the store is occupied by a pharmacy. The Respondent Eddy Portillo is the manager of the entire facility. Since Portillo was not a licensed pharmacist, he hired Michael Interess, a state licensed pharmacist, to operate the pharmacy portion of the store. Pursuant to a "contract work agreement" executed between the Respondent Eddy Portillo and Interess, net profits from the operation of the pharmacy were divided 40 percent to the pharmacist and 60 percent to the store following the deduction of certain delineated items from gross profits. In effect, the pharmacist's wages were based on his success in operating the pharmacy since he was not paid any guaranteed wage. A drug diversion audit conducted by the Petitioner established that the following amounts of methaqualone were dispensed by the pharmacy: November 1, 1981 through February 15, 1982; 56,386 Methaqualone dispensed. June 1, 1980 through February 15, 1982; 251,230 Methaqualone dispensed. When compared to all other Schedule II drugs dispensed by the pharmacy, the percentage of methaqualone dispensed during the audit period was 76.96 percent. No evidence was presented concerning the amount of methaqualone as a percentage of total prescription sales. Based on a seven-day week, approximately 14 methaqualone prescriptions were filled every day of the audit period by the pharmacy. As manager and cashier of the center, the Respondent Eddy Portillo spent a considerable amount of time within the store. The Respondent Portillo received a daily log of all drug sales which indicated the amount of sales in order to compensate Interess, the pharmacist. Although the Respondent Eddy Portillo knew the pharmacy was filling methaqualone prescriptions, he believed the percentage of methaqualone dispensed to be reasonable in relation to total prescription sales. The pharmacy received a large number of methaqualone prescriptions due to its geographical proximity to physicians who apparently frequently prescribed this drug.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Pharmacy dismissing the Administrative Complaint against the Respondents. DONE and ORDERED this 17th day of June, 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 17th day of June, 1983.
