The Issue The issue is the amount payable to Respondent, Agency for Health Care Administration ("Respondent" or "ACHA"), in satisfaction of Respondent's Medicaid lien from a settlement received by Petitioner, Jonathan Velez ("Petitioner" or "Velez"), from a third party, pursuant to section 409.910, Florida Statutes (2015).
Findings Of Fact On September 3, 2008, Velez, then a 14-year-old adolescent child was injured while playing football in Clewiston, Florida. On the date of the accident, Petitioner had a helmet to helmet (face to face) collision with another football participant. The collision caused a hyper-extended injury and Velez immediately fell to the ground and lost consciousness. Velez suffered a C5 burst fracture, a spinal cord injury, anterior cord syndrome and subsequent injuries originating from this accident, initially rendering him paralyzed. As a result of the injuries, and subsequent ramifications from said injuries, Velez suffered extensive permanent injuries and required extensive medical treatment in Miami, Florida, from September 3, 2008, through October 28, 2013. Petitioner sued numerous defendants for his injuries, but because of waiver and release forms signed by his guardian, the parties settled the case to avoid the possibility of summary judgment against Petitioner. Petitioner recovered $430,000.00 from a settlement against defendants. The settlement's allocation included: attorney's fees (40 percent) in the amount of $172,000.00; costs in the amount of $4,789.72; past medicals in the amount of $60,000.00; and future medicals in the amount of $20,000.00.1/ ACHA, through the Medicaid program, paid $142,855.89 on behalf of Petitioner for medical benefits related to the injuries sustained by Petitioner. Xerox Recovery Services, Respondent's collection's contractor, notified Petitioner that he owed $142,855.89 to satisfy a Medicaid lien claim from the medical benefits paid to him from the proceeds received from the third-party settlement. Petitioner contested the lien amount. At the final hearing, Petitioner presented, without objection, the expert valuation of damages testimony of Donna Waters-Romero ("Waters-Romero"). Waters-Romero has 30 years' experience in both state and federal courts and has solely practiced in the area of personal injury defense, including cases with similar injuries specific to this type of case. Waters-Romero's experience also encompasses evaluation of personal injury cases based on the review of medical records, case law, and injuries. In preparation for her testimony, Waters-Romero reviewed the pleadings, depositions, answers to interrogatories, evaluations, medical records, and defendant's motion for summary judgment along with the attached documents. She also met with Petitioner's attorneys and reviewed the mediation summary, exhibits, case law on Medicaid liens, letter of discharge, and release and settlement agreement. Waters-Romero also specifically researched three circuit court orders that were entered regarding allocation regarding Medicaid liens. To determine how to value Petitioner's claim, Waters-Romero relied on Wos v. E.M.A., 133 S. Ct. 1391(2013), a United States Supreme Court case, and on the circuit court cases as guidance. She determined that every category of the settlement should be reduced based on the ultimate settlement. During her evaluation, Waters-Romero also acknowledged the litigation risk in Velez's case due to the issues with the liability and the waiver and release. Based on her review, Waters-Romero opined that the overall value of Petitioner's claim was valued conservatively at $2,000,000.00, which was unrebutted. Waters-Romero's testimony was credible, persuasive, and is accepted. The evidence was clear and convincing that the total value of the damages related to Petitioner's injury was $2,000,000.00 and that the settlement amount, $430,000.00 was 21.5 percent of the total value. The settlement does not fully compensate Petitioner for the total value of his damages. ACHA's position is that it should be reimbursed for its Medicaid expenditures pursuant to the statutory formula in section 409.910(11)(f). Under the statutory formula, the lien amount is computed by deducting 25 percent attorney's fee of $107,500.00 from the $430,000.00 recovery, which yields a sum of $322,500.00. In this matter, ACHA then deducted zero in taxable costs, which left a sum of $322,500.00, then divided that amount by two, which yields $161,250.00. Under the statute, Respondent is limited to recovery of the amount derived from the statutory formula or the amount of its lien, whichever is less. Petitioner's position is that reimbursement for past medical expenses should be limited to the same ratio as Petitioner's recovery amount to the total value of damages. Petitioner has established that the settlement amount of $430,000.00 is 21.5 percent of the total value ($2,000,000.00) of Petitioner's damages. Using the same calculation, Petitioner advances that 21.5 percent of $60,000.00 (Petitioner's amount allocated in the settlement for past medical expenses), $12,900.00, should be the portion of the Medicaid lien paid. Petitioner proved by clear and convincing evidence that Respondent should be reimbursed for its Medicaid lien in a lesser amount than the amount calculated by Respondent pursuant to the formula set forth in section 409.910(11)(f).
Findings Of Fact Respondent is Hooshang Hooshmand, a licensed physician at all times relevant to these proceedings. He was issued license number ME 0021496 by the State of Florida. Medicare is a program of the U.S. Department of Health and Human Resources which is administered by the Health Care Financing Administration (HCFA). The program allows for third party payment, by the federal government, for diagnostic programs and medical treatments administered on an inpatient and outpatient basis to individuals eligible for medicare coverage. Among providers of medical services, only licensed physicians may be paid by the program for rendition of services. Others who may be reimbursed include health care professionals, such as durable medical equipment suppliers, as well as patients themselves in the instance of medical services rendered by a nonparticipating physician. On October 9, 1987, in the United States District Court for the Southern District of Florida, Respondent was convicted, after a jury trial, of ten counts of submission of fraudulent medicare claims in violation of Title 18, U.S.C. Section 287 and Section 2. He was also convicted on 11 counts of devising a scheme to defraud by mail, the U.S. Department of Health and Human Resources in violation of Title 18, U.S.C., Section 1341 and Section 2. Respondent's sentence upon his conviction included a term of 18 months imprisonment and five years probation upon completion of imprisonment and any parole period; payment of restitution in the amount of $3,101.24; payment of a fine of $250,000; payment of an assessment of $300; performance of 5,000 hours of community service during the five year probationary period following imprisonment. The verdict and sentence are presently on appeal to the United States Circuit Court of Appeals for the Eleventh Judicial Circuit. The expert testimony of Michael Gutman, M.D., a specialist in forensic psychiatry in the State of Florida, establishes that the practice of medicine in Florida encompasses not only a physician's technical competence; but also the relationship between a physician and the patient. Such a relationship is based upon trust and honesty. While the physician's expectation of payment for services is part of the patient/physician relationship, fraudulent billing for those services by the physician to either the patient or a third party payor directly affects the practice of medicine through its impact on that relationship. A fraudulent billing scheme, such as that of which Respondent was convicted, introduces dishonesty to the physician/patient relationship and prevents a proper evaluation of the patient in favor of a methodology permitting fraudulent billing. Such methodology would necessarily be one chosen to permit fraudulent billing in a way which would escape detection; a choice not necessarily in the best interest of the patient. Gutman's testimony also provides an adequate record upon which to find that fraud, such as that reflected by Respondent's criminal conviction, also directly relates to the ability to practice medicine because the physician's professional judgement and ethical standards are involved. Such judgement has a direct bearing on the ability to practice medicine. How that judgement is exercised could very well affect the life of the patient in some situations. While it is found Respondent's conviction of fraud in the use of the billing apparatus in his practice directly relates to professional judgement and the ability to practice medicine, there has been no showing that the Respondent's judgemental aberration at that time detrimentally affected his patients' health or his technical competence. In mitigation of the charge in the administrative complaint, Respondent provided testimony of witnesses establishing his technical competence and expertise in his areas of specialization; his extremely impressive professional credentials; the high regard in which he is held by certain of his peers and patients; and his previously unblemished record in the practice of medicine. Respondent also provided testimony of witnesses establishing the complexity of medicare billing and the fact that many physicians, while holding ultimate responsibility for the accuracy of such billing, delegate this task to subordinates. Testimony of Respondent establishes that the complexity of medicare procedures played a major role in his violation of the legal requirements in that system of reimbursement and is partially to blame for his criminal conviction. The testimony of Eleanor Breckner, offered by Petitioner to rebut Respondent's testimony, is not credited. In addition to Beckner's demeanor while testifying, her testimony is diminished in view of her admission that she committed perjury and embezzlement on previous occasions. Beckner also admitted to incidents of attempted suicide indicative of mental instability. Her testimony is not credited with any probative value.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent pay an administrative fine of $2,500 and that his license be placed on probation for a period of two years upon terms and conditions to be established by the Board of Medicine. It is further recommended that a condition of such probation require the satisfactory completion by Respondent of a course of study designed to provide him the information and skills necessary to properly comply with medicare reimbursement procedures. DONE AND ENTERED this 3rd day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-4. Addressed. 5.-6. Unnecessary to result. 7. Addressed in part, remainder unnecessary. 8-10. Unnecessary to result. 11. Addressed in part; remainder unnecessary. 12.-14. Unnecessary to result. Addressed in part; remainder unnecessary. Adopted by this reference. Rejected, not supported by the evidence. Unnecessary to result. 19.-20. Not supported by the weight of the evidence. Unnecessary to result; also cumulative. Adopted by this reference. Rejected as cumulative. Not supported by the weight of the evidence. Unnecessary to result and not relevant. 26.-27. Unnecessary to result. Unnecessary to result and cumulative. Addressed in part; remainder unnecessary to result. 30.-31. Unnecessary to result; cumulative. 32. Reject, not supported by weight of the evidence. 33.-36. Rejected, not relevant. 37.-41. Unnecessary to result. 42.-43. Addressed in part, remainder unnecessary. 44.-45. Unnecessary to result reached. 46. Addressed in part, remainder unnecessary. 47.-50. Unnecessary to result. Unnecessary and cumulative. Unnecessary to result. Rejected on basis of relevancy. 54.-56. Addressed in part, remainder unnecessary. Unnecessary to result reached. Rejected, not relevant. Unnecessary to result reached. Rejected, not relevant. 61.-67. Unnecessary to result reached. Rejected, not credible and not supported by the weight of the evidence. Also a legal conclusion. Addressed. Unnecessary to result. Adopted by this reference. Adopted in substance. Rejected as a legal conclusion. PETITIONER'S PROPOSED FINDINGS 1.-7. Adopted in substance. 8.-9. Addressed. COPIES FURNISHED: Jonathan King, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joesph C. Jacobs, Esq. Melissa Fletcher Allaman, Esq. 305 South Gadsden Street P.O. Box 1170 Tallahassee, FL 32302-1170 Roy L. Glass, Esq. 3000-66th Street North Suite B St. Petersburg, FL 33710
The Issue The issue is the amount of the Petitioner’s personal injury settlement proceeds that should be paid to the Agency for Health Care Administration (AHCA) to satisfy its Medicaid lien under section 409.910, Florida Statutes (2016).1/
Findings Of Fact The Petitioner’s right hand and wrist were cut by glass in the bathroom of her apartment in March 2012. Her injuries included damage to the tendons and nerves. She was hospitalized and received medical care and treatment, which Medicaid paid in the amount of $4,348.45. The Petitioner also personally owes $123 for physical therapy she received. The Petitioner sued the owner of the apartment, who vigorously contested liability and raised several affirmative defenses alleging that the Petitioner’s negligence or recklessness was wholly or partially responsible for her injuries and that she assumed the risk. The Petitioner’s damages were substantial because she lost the effective use of her right hand. She applied and was approved for Social Security supplemental security income benefits, subject to periodic reviews of her disability status. She presented evidence in the form of her and her attorney’s testimony and a report prepared by a vocational evaluation expert that she will suffer lost wages in the amount of approximately a million dollars, calculated by assuming she would have worked full-time earning $12-15 an hour until age 70, but for her accident, and assuming she cannot be gainfully employed in any capacity as a result of her injury. While that amount of lost wages might be overstated, the Petitioner presented evidence in the form of her attorney’s testimony and a supporting affidavit of another attorney with experience in personal injury case valuations that the monetary value of her damages was no less than approximately $550,000.2/ AHCA’s cross-examination did not reduce the persuasiveness of the Petitioner’s evidence, and AHCA presented no contrary evidence. In March 2017, the Petitioner settled her lawsuit for a mere $55,000 because of her concern that a jury would find for the defendant or reduce the recoverable damages due to comparative negligence. The Petitioner knew at the time of her settlement that AHCA was claiming a $4,348.45 Medicaid lien on the settlement proceeds. The Petitioner offered AHCA $434.85 in full satisfaction of the Medicaid lien claim. AHCA declined and asserts its entitlement to the full amount of the lien claim. The Petitioner’s settlement agreement included an allocation of $434.85 to AHCA’s Medicaid lien, $123 to the other past medical expenses, and the rest to other components of damages (which did not include any future medical expenses). AHCA was not a party to the settlement and did not agree to that allocation. The Petitioner’s attorney testified that the Petitioner’s proposed allocation is fair and reasonable and introduced the concurring affidavit of another attorney. AHCA did not present any evidence but argued that the Petitioner did not prove that AHCA’s Medicaid lien should be reduced and that, as a matter of law, AHCA was entitled to the claimed lien.
The Issue Whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. In or around 2002, Petitioner issued Respondent a restricted medical license that was thereafter converted, on June 19, 2004, to an unrestricted license to practice medicine in the State of Florida (number ME 90680). Instant Allegations On May 22, 2008, Respondent was indicted in the United States District Court for the Southern District of Florida with nine criminal charges, all but one of which were ultimately dismissed. Count Two of the indictment——to which a guilty plea was later entered——alleged that Respondent, in violation of 18 § 1349, conspired with a fellow physician to commit health care fraud, an offense prohibited by 18 U.S.C. § 1347. In relevant part, Count Two provided: COUNT 2 Conspiracy to Commit Health Care Fraud (18 U.S.C. § 1349) Paragraphs 1 through 9 of the General Allegations section of this Indictment are realleged and incorporated by reference as though fully set forth herein. From in or around November 2002, through in or around April 2004. . . the defendants, CARLOS CONTRERAS and RAMON PICHARDO, did knowingly and willfully combine, conspire, confederate and agree with others, known and unknown to the Grand Jury, to violate Title 18, Untied States Code, Section 1347, that is, to execute a scheme and artifice to defraud a health care benefit program . . . by means of materially false and fraudulent pretenses, representations, and promises, money and property owned by, and under the custody and control of, said health care benefit program, in connection with the delivery of and payment for health care benefits, items, and services. PURPOSE OF THE CONSPIRACY It was a purpose of the conspiracy for CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators to unlawfully enrich themselves by, among other things, (a) submitting false and fraudulent claims to Medicare; (b) offering and paying cash kickbacks and bribes to Medicare beneficiaries for the purpose of such beneficiaries arranging for the use of their Medicare beneficiary numbers by the conspirators as the bases of claims filed for HIV infusion therapy; (c) concealing the submission of false and fraudulent claims to Medicare, the receipt and transfer of the proceeds from the fraud, the payment of kickbacks; and (d) diverting proceeds of the fraud for the personal use and benefit of the defendants and their co-conspirators. MANNER AND MEANS The allegations in paragraphs 4 through 10 of the Manner and Means Section of Count 1 of this Indictment are incorporated as though fully set forth herein as a description of the Manner and Means of this conspiracy. All in violation of Title 18, United States Code, Section 1349. (emphasis added). As indicated above, Count Two of the indictment incorporated the general allegations contained in paragraphs one through nine of the charging instrument, as well as paragraphs four through ten of the "Manner and Means" section of Count One. Those incorporated paragraphs alleged, in relevant part: General Allegations At all times relevant to this Indictment: The Medicare Program was a federal health care program providing benefits to persons who were over the age of 65 or disabled. Medicare was administered by the Centers for Medicare and Medicaid Services ("CMS") . . . . Medicare was a "health care benefit program," as defined by Title 18, United States Code, Section 24(b). "Part B" of the Medicare program paid Medicare providers and suppliers for covered goods and services, including medically necessary Human Immunodeficiency Virus ("HIV") infusion therapy, that were provided and ordered by physicians, clinics, and other qualified health care providers. . . . Payments under the Medicare program were often made directly to a provider of the goods or services, rather than the beneficiary. This occurred when the provider accepted assignment of the right to payment from the beneficiary. In that case, the provider submitted the claim to Medicare for payment, either directly or through a billing company. Physicians, clinics, and other health care providers that provided services to Medicare beneficiaries were able to apply for and obtain a "provider number." A health care provider who was issued a Medicare provider number was able to file claims . . . to obtain reimbursement for services provided to beneficiaries. . . . C.N.C. Medical Corp. ("CNC Medical") was a Florida corporation, purportedly doing business . . . [in] Miami, Florida. . . . CNC Medical was a medical clinic that purported to specialize in treating patients with HIV by providing infusion therapy. From in or around November 2002 through in or around April 2004, approximately $6.8 million in claims were submitted to the Medicare program for HIV infusion services allegedly rendered at CNC Medical. Defendant Contreras, a resident of Miami-Dade County, was a medical doctor who purported to order and provide HIV infusion services to Medicare beneficiaries at CNC Medical. Contreras was also the president, director, and registered agent of CNC Medical. Defendant RAMON PICHARDO, a resident of Miami-Dade County, was a medical doctor who purported to order and provide HIV infusion services to Medicare beneficiaries at CNC Medical. From in or around November 2002 through April 2004, CNC Medical submitted claims to Medicare under the provider number of [Respondent's co-defendant], which was 03813. * * * MANNER AND MEANS The manner and means by which Carlos Contreras, Ramon Pichardo, and their co- conspirators . . . sought to accomplish the objects and purpose of the conspiracy included, among other things as follows: CARLOS CONTRERAS would cause the establishment and incorporation of CNC Medical in the State of Florida and serve as president, director, and registered agent of CNC Medical. CARLOS CONTRERAS would work as a physician at CNC Medical, and be an authorized signer on the CNC Medical bank accounts. RAMON PICHARDO would work as a physician at CNC Medical. CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators . . . would cause unnecessary tests to be ordered, medical forms to be signed, and treatments to be authorized to make it appear that legitimate services were being provided to Medicare beneficiaries at CNC Medical. CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators . . . would cause the payment of cash kickbacks to Medicare beneficiaries in exchange for the patients signing documents at CNC Medical stating that they had received the treatments that were billed to Medicare, when those treatments were not provided and were not medically necessary. CARLOS CONTRERAS, RAMON PICHARDO, and their co-conspirators . . . would cause the submission of approximately $6.8 million in claims to the Medicare program under the provider number of CNC Medical, for services that were never provided and services that were not medically necessary. After reimbursements from Medicare were deposited into CNC Medical's bank accounts, CARLOS CONTRERAS and his co-conspirators . . . would cause to transfer approximately $1.7 million to sham management, marketing and investment companies owned and operated by their co-conspirators, and approximately $244,000 to other fraudulent HIV infusion clinics owned and operated by their co- conspirators. On or about September 11, 2008, Respondent entered into a plea bargain whereby he agreed to plead guilty to Count Two of the indictment; in return, the government agreed to dismiss Respondent's 11 remaining charges at the conclusion of the sentencing process. Attached to the written plea agreement is a two-page statement signed by Respondent that, by its terms, was made "knowingly and voluntarily and because [Respondent is] in fact guilty of the crimes charged." Consistent with the allegations contained in the indictment, Respondent admitted credibly in the statement, among other things, that he: willfully conspired to commit health care fraud with Dr. Contreras and other individuals; approved costly and medically unnecessary HIV infusion treatments in furtherance of the conspiracy; signed documents that contained false information about treatments purportedly provided to beneficiaries; and approved, in conjunction with Dr. Contreras, fraudulent medical bills totaling approximately $6.8 million. Finally, Respondent acknowledges in the statement that approximately $4.2 million in fraudulent claims were ultimately paid to CNC Medical by the Medicare Program. Subsequently, on November 20, 2008, was adjudicated guilty of Count Two of the indictment and sentenced to a 48- month prison term, to be followed by three years of supervised release. In addition, Respondent was ordered to pay restitution in the amount of $4.2 million.
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 Medicine: Finding that Respondent violated section 458.331(1)(c), Florida Statutes, as charged in Count One of the Complaint; Revoking Respondent's license to practice medicine; and Imposing a fine of $10,000. DONE AND ENTERED this 25th day of January, 2013, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 25th day of January, 2013.
