The Issue Whether Petitioner should be granted a license to practice medicine in the State of Florida.
Findings Of Fact Dr. Thomas Vincent Savino, M.D., is presently licensed in New York and New Jersey. He has taken and passed all the necessary examinations in order to be licensed under Florida law. Prior to medical school, Petitioner was enrolled in osteopathic medical school for one year. Eventually in part due to financial considerations and in part because Petitioner desired to go to medical school, Dr. Savino was accepted to medical school at the State University of New York (SUNY) medical school. While in medical school, Dr. Savino had some academic difficulties that were documented in the transcript presented to the Board. His academic difficulty was unrelated to his abilities to render medical care. Eventually, the problems he had at SUNY were the subject of a lawsuit against the University. The lawsuit took over a year during which time Petitioner was enrolled and attended classes at SUNY, including a neurology course or clerkship. The neurology course was successfully completed as attested to in a letter from the Dean of Students of SUNY. The letter was submitted to the Board. Petitioner eventually lost his suit against the University and did not receive credit for the neurology course. Therefore, Petitioner's transcript from SUNY showed that Dr. Savino eventually successfully completed every required course except neurology. Neurology is not required by most medical schools. However, Petitioner was permitted to take the course. He successfully completed the course at St. Vincent's Medical Center. Dr. Savino did not list the neurology course under the area designated for listing medical school clerkships in the application. The reason that the neurology clerkship was not listed in Petitioner's application was that Petitioner did not receive credit for it despite completing the course successfully. Petitioner reasonably believed that listing the neurology course as a clerkship would have implied that he had received credit for it. The information was not hidden, but was contained in other documentation to the application. Clearly Petitioner was not attempting to mislead or hide the information from the Board. Petitioner finished his last year of medical school at Ross University. Petitioner was awarded an M.D. degree from Ross University School of Medicine in 1990. Petitioner adequately documented that he attended and passed the medical school curriculum necessary for licensure in the State of Florida. Importantly, since Petitioner has been in practice, there have been no allegations of malpractice made against him, nor have there been any Medicare or Medicaid complaints filed against him. He has had a successful career after graduation. The Board contends that Petitioner misrepresented the facts in response to question 11 on the application. Question 11 states: Was attendance in medical school for a period other than the normal curriculum? Petitioner answered "no" to question 11. In Petitioner's case, he took 4 years to complete medical school while he was officially enrolled in various medical school programs. The question is at best vague, ambiguous, and subject to varying interpretations, especially on facts like those here. Moreover, the dates of Petitioner's attendance at medical school were documented in his application. The Board was never misled by Petitioner's negative response and was well aware of Petitioner's time in medical school. The Board discussed this very subject at its meeting regarding Dr. Savino. In short, the answer to question 11 was not material to any matter necessary to be found by the Board and does not demonstrate bad character. The Board, in its order, and in its pretrial statement, contends that Dr. Savino misrepresented a material fact by stating on his curriculum vitae that he was an Assistant Clinical Physician at a time prior to when he graduated from medical school. It was a phrase Petitioner made up in order to describe his position while he was employed as an assistant office manager/aide in his father's medical practice. Petitioner's father was a clinical physician. The curriculum vitae itself shows that Dr. Savino was not awarded an medical degree until 1990. The curriculum vitae listed the assistant clinical physician's job from 1987-1988. Additionally, Dr. Savino properly reflected his job in his father's office as "assistant and office manager" in a letter he wrote to the Board dated May 6, 1996. The letter was written to the Board prior to the curriculum vitae's becoming an issue. In reviewing the record, all the facts regarding Petitioner's job with his father were contained in Petitioner's application. They were not hidden from the Board. In short, the statement regarding Petitioner's job with his father is not a material misrepresentation. It was a poor choice of words and use of the English language. Finally, the Board asserted that Petitioner received his other medical licenses and medical degree through fraudulent means. The Board bases this charge on the job description discussed above. However, the record is devoid of any evidence that any other jurisdiction or school relied on or used this information or description in any manner or that any fraud was committed by Dr. Savino in regard to these other jurisdictions. There is no evidence that Dr. Savino intended to mislead the Board as to either when he became licensed elsewhere or when he began active practice. There is no evidence in the record that contradicts either his testimony or the written evidence that he supplied concerning the jobs he has held in the past or his medical education, all of which was in Petitioner's favor. None of the technicalities raised by the Board demonstrate that Petitioner is of bad character, lacks candor, or has committed any fraud or misrepresentation to the Board or in any other jurisdictions. Therefore, Petitioner is entitled to licensure by endorsement.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered granting the Petitioner's license to practice medicine in the State of Florida. DONE AND ENTERED this 3rd day of April, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1998. COPIES FURNISHED: Eric B. Tilton, Esquire Gustafson, Tilton, Henning and Metzger, P.A. 204 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Lynne Quimby Pennock, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Dr. Marm Harris, Executive Director Board of Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent should be disciplined for violation of Section 458.33(1)(k), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida and has contracted with the Agency for Health Care Administration to provide investigative and prosecutorial services to the Board of Medicine. Dr. Portnow is and has been at all times material to this complaint a licensed physician in the State of Florida, having been issued license no. ME 0070351. Respondent's last known address is 8540 Great Meadow Drive, Sarasota, Florida 34238. However, the parties agreed to conducting the hearing in Jacksonville, Florida, which resulted in the reassignment of the case to the undersigned. In or about April 1996, Dr. Portnow attempted to secure employment with Baker & Gilmore, M.D., P.A., a medical practice in Jacksonville, Florida. In applying for employment, Dr. Portnow represented to the physicians of Baker & Gilmore, M.D., P.A., that he was board certified in Internal Medicine and in the subspecialty of Cardiovascular Disease. To support these representations, Dr. Portnow provided copies of certificates which purported to authenticate the board and specialty certifications he claimed in his employment application to Baker & Gilmore, M.D., P.A. The physicians of Baker & Gilmore, M.D., P.A., sought verification of Dr. Portnow's offered board and specialty certifications from the American Board of Internal Medicine (ABIM). The American Board of Internal Medicine provided documentation which revealed that the offered certifications were fraudulent and that Dr. Portnow was not certified in either specialty. The American Board of Internal Medicine indicated that the actual certificates had been issued to another physician, that Dr. Portnow's name had been forged on the certificates, and that the Cardiovascular Disease certificate is a copy of one issued in 1981 and not in 1989 as represented on the document. A physician must be board certified in Internal Medicine before she/he can be considered eligible to sit for an exam in a specialty board such as cardiovascular disease. Further, after completing the required training, a physician must pass the examination in that subspecialty and then he/she may hold himself/herself out as board certified in that subspecialty. Cardiovascular disease is a subspecialty to Internal Medicine. The medical practice to which Respondent submitted his certificates and curriculum vitae needed a physician who was a board certified or board eligible cardiologist with training in electrophysiology. Electrophysiology is a sub-specialty of cardiology that deals with human electrical neurology and its abnormalities. Respondent presented a curriculum vitae to the medical practice that included the same fraudulent misrepresentation concerning his alleged certification in Internal Medicine and Cardiovascular Disease. Respondent also included the notation "F.A.C.C." on his curriculum vitae. F.A.C.C. indicates one is a Fellow of the American College of Cardiology. The American College of Cardiology offers this designation to physicians who have shown excellence in cardiology, which is documented in part by the passing of the cardiovascular boards. The notation "F.A.C.C." on Respondent's curriculum vitae is a fraudulent notation indicating passage of the cardiovascular boards when Respondent did not pass these boards. Respondent signed an insurance form with the medical practice that included the fraudulent representation that he was board certified in both Internal Medicine and Cardiology. On June 24, 1996, Respondent signed an application to the Columbia Credentialing Services, Inc., that included the fraudulent misrepresentations that he was board certified in both Internal Medicine and in Cardiology as of September 1987 and November 1989, respectively. Respondent was hired by the medical practice at a starting salary of $150,000.00 with additional benefits and bonuses based on research and revenue collected. Respondent was also given $6,000.00 as moving expenses. Respondent worked and saw patients at the medical practice from approximately mid-August to his termination date of December 12, 1996. Respondent presented himself via a self-referral to Dr. Richard Seely on August 21, 1999. This self-referral was scheduled approximately one month before this case was originally scheduled to be tried. Dr. Seely agreed that a final hearing is a strong motivating force on the Respondent's similar situations. Dr. Seely is a psychiatrist that works with the Physician's Recovery Network (PRN). Dr. Seely did not receive the file from the ABIM concerning the Respondent when he met with him. Dr. Seely also did not perform the Minnesota Multiphasic Personality Inventory (MMPI) or any other similar tests on Respondent. The MMPI helps to characterize a person's personality profile. Dr. Seely also did not receive any medical records to support the Respondent's contention that he suffered form depression in the past. Dr. Seely testified concerning his professional opinion of the Respondent. He found the Respondent was not a pathological liar but could not identify any other neuropsychopathology. Dr. Seely opined that the administrative problem identified by this case is not due to any psychiatric condition. Dr. Seely then related the depression to the Respondent's "Administrative occupational" problem. Dr. Seely recommended that the Respondent be under a PRN contract and be under psychiatric care. The Respondent did not follow the recommendations of Dr. Seely. The Respondent also did not follow the recommendations of Dr. Schwartz, a psychiatrist he had seen in the past, concerning his psychiatric condition. The facts contained in paragraphs 22 through 29 of the Petitioner's Proposed Recommended Order are identified by the Petitioner as being based upon the proffer of excluded evidence. These facts and the discussion following them are improperly presented in the proposed recommended order. Further, the Respondent did not take the stand, and did not assert that his acts were a mistake or accident, or that his acts were an isolated incident. There is no issue of intent presented because the Respondent admitted the acts and the misrepresentation. These actions were clearly volitional. These facts and discussion should not be considered by the board because their exclusion is not based upon matters of special expertise, and the proffer is properly considered exclusively by the appellate court.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that: The Board fine the Respondent $3,500; The Board place the Respondent on probation conditioned upon a required psychological evaluation by a physician or clinician satisfactory to the Board, with all costs to be borne by the Respondent, and a determination by that physician or clinician that the Respondent can practice safely without supervision; The Board prohibit the Respondent from practicing without supervision until his evaluation is completed and his further practice is considered by the Board; and The Board limit the Respondent's practice after evaluation based upon any limitations recommended by the evaluating physician or clinician. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of June, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald W. Weidner, Esquire Thomas Bowden, Esquire Weidner & Winicki 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246-6685 Christine C. Whitney, Esquire Christine C. Whitney, P.A. 225 West 5th Street Jacksonville, Florida 32206 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue is whether Respondent has been convicted of a crime directly related to the practice of nursing, in violation of Section 464.018(1)(c), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent was born on September 27, 1963, in Havana, Cuba. She is now a United States citizen and is married with three children. Since 1985, Respondent has been a licensed registered nurse, holding license number RN 1643122. She has not previously been disciplined. In 1991, Respondent separated from, and later divorced, her then-husband. She was under considerable financial pressure, caring as a single parent for her children, who were then newborn, 18 months old, and four and one-half years old. Respondent was then employed by St. Johns Home Health Agency, Inc. Respondent served as a nurse who performed admissions and follow-up care. Pressured for money, Respondent agreed to participate in a scheme in which she prepared false notes concerning patient care. Specifically, Respondent would see her patients and appropriately record accurate vital signs once weekly. For her more involved patients, such as diabetics or patients undergoing wound care, Respondent would see them as often as indicated and duly record their vital signs. However, for less involved patients, Respondent would document other visits during the week that did not take place and record fictitious vital signs. Respondent understood that the purpose of this fraudulent activity was to induce the federal government to pay her employer unearned Medicare monies, part of which the employer then paid Respondent. Although no patients were harmed by Respondent's fraud, she continued this practice for over one year and perhaps as long three and one-half years. Some days, Respondent falsified over 20 patient visits. On December 17, 1998, the grand jury returned an indictment against 26 defendants, including Respondent, for Medicare fraud and various related crimes. By Judgment entered March 23, 1999, Respondent pleaded guilty of one count of conspiracy to submit false claims to the United States, in violation of 18 United States Code Section 286. Respondent played a minor role in a massive case of Medicare fraud pursued with diligence and careful, coordinated planning by several entities, not just Respondent's employer. The indictment alleges a total of $25 million in fraudulent Medicare claims arising from unperformed home visits and extensive money laundering and racketeering by the principal perpetrators of this fraud. The prosecutors credit Respondent with early cooperation, even at the grand-jury stage, that was instrumental in obtaining guilty pleas from over 20 defendants. Respondent's testimony at trial was "extremely valuable" against two of the three defendants who went to trial--and received "significant prison terms." As the prosecutors describe the assistance of Respondent and one other defendant, they "did all that they could do from the earliest time to help undo the wrongdoing in which they had been involved." The judge initially sentenced Respondent to 18 months' imprisonment and ordered her to pay the United States Department of Health and Human Services $20,000 as partial restitution for the estimated $300,000 of loss attributable to Respondent's fraud. Later, due to Respondent's cooperation and at the request of the prosecutors, the judge reduced the sentence from 18 months' imprisonment to five years' probation. Respondent has since paid the $20,000 in restitution. The United States Department of Health and Human Services excluded Respondent from Medicare for ten years. After an administrative hearing and pursuant to the recommendations of the Administrative Law Judge, the agency reduced this penalty to five years. At present, Respondent serves as a recovery room nurse at two South Florida cosmetic surgery centers. Respondent expresses heartfelt remorse and displays deep shame for her past criminal behavior. She recognizes that her financial circumstances did not justify her fraudulent acts. However, revocation or a long suspension would cause considerable financial hardship upon Respondent and the three children, who are now 11, 13, and 15 1/2 years old and, as much as is possible for children of these ages, planning on attending college. Petitioner has consistently sought revocation in this case. In past cases, Petitioner has not always sought revocation for licensees convicted of Medicare fraud, but it appears that Petitioner has altered its policy in this regard.
Recommendation It is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating Section 464.018(1)(c), Florida Statutes, and reprimanding her license, placing her license on probation for five years, imposing an administrative fine of $10,000, and assessing costs. DONE AND ENTERED this 15th day of August, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 15th day of August, 2002. COPIES FURNISHED: Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Reginald D. Dixon Senior Attorney Department of Health Bureau of Health Care Practitioner Regulation--Legal Division of Medical Quality Assurance 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Lawrence R. Metsch Metsch & Metsch, P.A 1455 Northwest 14th Street Miami, Florida 33125
The Issue The issue in this case is whether Respondent, Andrew Logan, M.D., committed a violation of Section 458.331(1)(t), Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on April 30, 2003, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Andrew Logan, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0058658. Dr. Logan's last known business address is 8551 West Sunrise Boulevard, Suite 105, Plantation, Florida 33322. At the times material to this matter, Dr. Logan was certified in ophthalmology. He specializes in medical and surgical ophthalmology. Dr. Logan received a bachelor of arts degree in biology in 1982 from Brown University. He received his medical degree in 1986 from the University of California, San Francisco.2 Dr. Logan completed a residency in ophthalmology. Dr. Logan has practiced medicine in Florida since 1990. At the times relevant to this matter, Dr. Logan worked in a group practice in Plantation, Florida. Most of his practice consisted of an office practice, seeing patients. He also performed some laser and minor surgeries in the office. Approximately once a week, for half a day, he performed surgery out of the office at "three hospitals and surgical centers." Dr. Logan's license to practice medicine has not been previously disciplined. The Department's Administrative Complaint and Dr. Logan's Request for Hearing. On April 30, 2003, the Department filed an Administrative Complaint against Dr. Logan before the Board of Medicine (hereinafter referred to as the "Board"), alleging that his treatment of one patient, identified in the Administrative Complaint as C. S., constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. In particular, it is alleged in the Administrative Complaint that Dr. Logan violated the Standard of Care in "one or more of the following ways": Respondent failed to identify the correct patient for the implantation of the 23 diopter lens; Respondent failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered; Respondent implanted the wrong lens into the left eye of Patient C.S. The factual allegations of the Administrative Complaint, although stated differently, essentially allege that Dr. Logan operated on the wrong patient. Dr. Logan filed a request for a formal administrative hearing with the Department, which was filed by the Department with the Division of Administrative hearings. Treatment of Patient C.S. C.S., who was 70 years of age at the time of the incident involved in this matter, began seeing Dr. Logan for eye care in approximately February 1997. C.S. developed cataracts in both eyes, for which Dr. Logan diagnosed and suggested surgical treatment.3 Dr. Logan explained the procedure he believed necessary to remove C.S.'s cataracts to her and obtained her approval thereof. The procedure to be performed on C.S., known as phacoemulisification, consisted of making an very small incision in her eye, breaking up her natural, or intraocular, lens with ultrasound, irrigating the eye, and then suctioning out the destroyed lens and irrigation material. Once the intraocular lens is removed, it is replaced with an artificial lens, the power and model of which is selected by the physician. Dr. Logan determined that the lens needed to restore C.S.'s vision in her left eye after removal of her intraocular lens was a 15-diopter lens. The "diopter" of a lens relates to the corrective power of the lens. C.S. was scheduled for the planned cataract surgery on her left eye at the Surgery Center of Coral Springs (hereinafter referred to as the "Surgery Center") for the morning of September 5, 2000.4 C.S. was one of at least two patients scheduled for surgery by Dr. Logan that morning. The Surgery Center is a free-standing center where various types of surgery are performed. Dr. Logan was not an owner or employee of the Surgery Center. He did not hire, nor could her fire, any employee of the Surgery Center, and none of the equipment utilized in the Surgery Center was owned by him.5 Consistent with established procedures, the Surgery Center was faxed information concerning C.S.'s scheduled surgery. In particular, the facsimile identified C.S. by name, which eye was to be operated on (her left eye), and the power (15-diopter) and model number of the replacement lens Dr. Logan had determined was necessary to restore C.S.'s vision after the surgery. The day before C.S.'s scheduled surgery, Dr. Logan was provided with C.S.'s patient records and the records of the other patient scheduled for surgery on September 5, 2000. He reviewed those records either that afternoon or that night. He also took the records with him to the Surgery Center where he reviewed them again. On or around the morning of September 5, 2000, the Surgery Center's nurse manager took the facsimiles that had previously been sent to the Surgery Center by Dr. Logan's office and retrieved the lens for each patient scheduled for surgery that day. When the nurse manager retrieved the lens, she was expected to ensure that the ordered lens, both as to power and model, were available, and that they were within their expiration date. She then bundled the lens and the facsimile. Three lens per patient were routinely retrieved. The bundles were then placed on a table in the operating room in the order they were supposed to be used. The order of surgery for September 5, 2000, had been prearranged and that information was available on a list prepared by the Surgery Center to all of those involved in the surgery that morning, including Dr. Logan and his surgery team. C.S. had been scheduled to be the second patient seen that morning. When C.S. arrived at the Surgery Center she was eventually taken to a pre-operation room (hereinafter referred to as "pre-op") to be readied for surgery. The patient who had been scheduled for the first surgery of the morning (hereinafter referred to as the "First Scheduled Patient"), had been late arriving on September 5, 2000. C.S. had come early. Therefore, C.S. was taken to pre-op in place of the First Scheduled Patient. What exactly transpired after C.S. was taken to pre-op was not explained. The nurse manager, who had overall responsibility for getting patients ready for surgery did not testify during this proceeding and the circulating nurse, Ann Tuza, was unable to recall what took place in any detail. What was proved is that Dr. Logan was not informed of the switch and the records and lens, which had been placed in the order of the scheduled surgeries for that day, were not changed to reflect that C.S. would be taken to surgery in place of the First Scheduled Patient. Therefore, although C.S. was the first patient into surgery, the records and lenses of the First Scheduled Patient were not replaced with C.S.'s records or lens. As was his practice, before going into the operating room, Dr. Logan went to pre-op to administer a local anesthesia. Dr. Logan, who had not been informed that the second scheduled patient, C.S., had been substituted for the First Scheduled Patient, administered the anesthesia to C.S. Dr. Logan found C.S. asleep. Dr. Logan did not recognize C.S. and he did not speak to her, as would have been his practice had she been awake, or otherwise identify her. Dr. Logan injected a local anesthesia by needle under and behind C.S.'s left eye,6 a procedure referred to as a "block" or "retrobulbar block."7 After the block had time to take effect, which normally took approximately five to ten minutes, Nurse Tuza went to retrieve C.S. from pre-op and bring her to the operating room. C.S. was brought into the operating room by Nurse Tuza and prepared for surgery. She was covered completely except for her feet and her left eye, which had an "X" placed over it to identify the eye to be operated on. Nurse Tuza remained in the operating room, along with a scrub technician, who assisted Dr. Logan, and a nurse anesthetist. None of these individuals apparently checked to ensure that they were correct in their assumption that the patient was the First Scheduled Patient. Dr. Logan, who did not recall what he did between seeing C.S. in pre-op and arriving at the operating room, completed scrubbing and entered the operating room where C.S. awaited. He had placed his charts in the operating room. His routine after arriving in the operating room was to go to the head of the patient and adjust a microscope used during the surgery. It is inferred that he did so on the morning of September 5, 2000. Although C.S. was awake when she was taken into the operating room and during the surgery, no one, including Dr. Logan, asked her her name. Nor did anyone, including Dr. Logan, check to see if she was wearing a wrist-band which identified her. Instead everyone, including Dr. Logan, assumed that they were operating on the First Scheduled Patient. Not actually knowing who he was operating on,8 Dr. Logan performed the surgery scheduled for the First Scheduled Patient on C.S. Although the procedure her performed on C.S., fortunately, was the same one scheduled for C.S., the diopter of the replacement lens was not.9 The First Scheduled Patient was to receive a 23-diopter lens, rather than C.S.'s 15- diopter lens. Dr. Logan placed the 23-diopter lens in C.S.'s eye, completed the procedure, and C.S. was taken to recovery. When Nurse Tuza went to get the next patient for surgery, who she expected to be C.S., she discovered for the first time that C.S. had been substituted for the First Scheduled Patient. She immediately informed Dr. Logan of the error. Dr. Logan went to the recovery room and, after ensuring that C.S. was alert enough to comprehend what he was saying, informed C.S. of the error. She consented to Dr. Logan's suggestion the he take her back into the operating room, remove the 23-diopter lens, and replace it with the correct, 15-diopter lens, which he immediately did. The replacement procedure required no additional trip to the Surgery Center, anesthesia, or incisions. C.S. recovered from the procedures without problem or direct harm. She continued to see Dr. Logan as her eye care until a change in insurance prevented her from doing so. Standard of Care. There was little dispute that Dr. Logan "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S." These facts, which form the factual basis for the Department's allegation that Dr. Logan violated the Standard of Care, have been proved. Including Dr. Logan, five physicians gave opinions in this proceeding as to whether Dr. Logan's actions violated the Standard of Care: Drs. William Cobb, Harry Hamburger, Joel Kramer, and Lowell Sherris. The testimony of Drs. Cobb and Kramer, primarily, and, to a lesser degree, the testimony of the Dr. Logan and the other two physicians, support a finding that Dr. Logan's actions, as alleged in the Administrative Complaint, constitute a violation of the Standard of Care. The testimony of Drs. Cobb, Kramer, and Sherris, which was credible and persuasive, have been summarized in the Department's proposed recommended order, and will not, in light of recent changes in Section 456.073(5), Florida Statutes, be summarized in any detail here. All of the physicians who testified, including Dr. Logan, agreed that a physician must know on whom he or she is operating and that operating on the wrong patient or inserting the wrong lens in a patient's eye is inappropriate. Dr. Logan, with Dr. Hamburger's support, attempted to prove that Dr. Logan did not violate the Standard of Care, despite the fact that he "failed to identify the correct patient for the implantation of the 23 diopter lens"; "failed to verify that the lens he implanted into Patient C.S. was the power of lens that he had previously ordered [for her]"; and "implanted the wrong lens into the left eye of Patient C.S.," by suggesting the following: It is reasonable and common practice in the South Florida community for a physician to rely on the staff of a surgical center to identify a patient prior to surgery and bring the patients [sic] back in the order originally anticipated. Dr. Logan had several safeguards in place to avoid the error that occurred in this case. The standard of care does not require that physician act as a supervisor who is responsible for every act of the healthcare provided team. This incident occurred due to an error of the staff at the Surgical Center at Coral Springs. . . . . Respondent's Proposed Final [sic] Order, paragraph 78. The proposed findings quoted in paragraph 37 are based primarily on Dr. Hamburger's, and to a lesser extent, Dr. Logan's, assertion that the surgery was a team effort, that the team had established procedures to identify the patient, and that the team failed in this instance to properly identify the patient. This testimony, and the proposed findings quoted in paragraph 37 are rejected. Nothing in the procedures followed in this instance alleviated Dr. Logan's responsibility to ensure that he actually established for himself who he was about to perform surgery on, a task which would have taken little effort.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Andrew Logan, M.D., has violated Section 458.331(1)(t), Florida Statutes (2000), as alleged in the Administrative Complaint, requiring the payment of an administrative fine of $5,000.00, completion of four hours of continuing medical education in risk management, and attendance at a one hour lecture on wrong patient surgery and how to avoid it, and issuing Dr. Logan a letter of concern from the Board of Medicine. DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004.
The Issue The issue in this matter concerns the amount of monetary sanctions that the Agency for Health Care Administration may impose on Respondent pursuant to section 409.913, Florida Statutes, and Florida Administrative Code Rule 59G-9.070(7)(e) based on the overpayment of Medicaid reimbursements made to Respondent.
Findings Of Fact AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act, otherwise known as the Medicaid program. See § 409.902(1), Fla. Stat. AHCA is responsible for administering and overseeing the Medicaid program in the State of Florida. See § 409.913, Fla. Stat. AHCA's Bureau of Medicaid Program Integrity (“MPI”) is the unit within AHCA that oversees the activities of Florida Medicaid providers and recipients. MPI ensures that providers abide by Medicaid laws, policies, and rules. MPI is responsible for conducting audits, investigations, and reviews to determine possible fraud, abuse, overpayment, or neglect in the Medicaid program. See §409.913, Fla. Stat. At all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients. Respondent had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 0742236-00. The Medicaid provider agreement is a voluntary contract between AHCA and the provider. As an enrolled Medicaid provider, Respondent was subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. Pursuant to its statutory authority to oversee the integrity of the Medicaid program, MPI conducted an audit of Respondent's paid claims for Medicaid reimbursement for the period from April 1, 2011, through October 31, 2013. The audit’s purpose was to verify that claims AHCA paid to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid laws, policies, and applicable rules. As a result of the audit, AHCA determined that Respondent was overpaid in the amount of $177,717.69 for services that, in whole or in part, were not covered under the Medicaid program. AHCA also sought to impose sanctions upon Respondent consisting of an administrative fine of $34,192.30,2/ as well as investigative, legal, and expert witness costs of $1,127.66. Respondent is a dentist specializing in pediatric dentistry. He has practiced for over 43 years. He maintains offices in both Clearwater and Jacksonville, Florida. Respondent’s dental practice serves almost exclusively developmentally disabled children. Many of his patients suffer from severe behavioral, emotional, mental, physical, or social handicaps or other medical issues. Respondent’s practice is primarily based on referrals of special needs patients who other pediatric and general dentists send to him for treatment. Approximately, 95 percent of Respondent’s patients are Medicaid recipients. At the final hearing, AHCA presented the testimony of Robi Olmstead, an AHCA administrator with MPI. Ms. Olmstead's responsibilities include overseeing MPI investigations and supervising AHCA staff’s performance of Medicaid audits. With over 10 years of experience in her position, Ms. Olmstead is very familiar with and knowledgeable about how MPI conducts Medicaid audits. Specifically related to this matter, Ms. Olmstead, in her official capacity with AHCA, signed the FAR that MPI presented to Respondent on April 8, 2015. Ms. Olmstead described MPI’s Medicaid audit of Respondent’s Medicaid claims.3/ Using AHCA's data support system, MPI investigators accessed the complete universe of Respondent’s Medicaid claims. MPI selected the period from April 1, 2011, through October 31, 2013, as the audit period. MPI calculated the amount of overpayment based on its review of a random sample of 35 recipients for whom Respondent submitted 507 claims during the audit period. AHCA then contacted Respondent and requested that he submit documents to substantiate his Medicaid claims for the 35 recipients. In response to AHCA’s request for documents, Respondent provided his records of service and billing for each of the 507 claims for the 35 recipients. AHCA, upon receiving Respondent’s records, forwarded them for a peer review. The peer reviewer evaluated the records and prepared worksheets reflecting a determination regarding the nature of the dental services rendered for each claim, and whether such claim was eligible for payment under the Medicaid program. Based on the peer reviewer’s determination, MPI calculated that Respondent had been overpaid for all claims he presented within the audit period by a total of $177,717.69. After determining that Respondent had been overpaid, AHCA prepared and sent to Respondent a Preliminary Audit Report (“PAR”), dated February 12, 2015. The PAR notified Respondent that the audit revealed that he had been overpaid by $177,717.69. On April 8, 2015, AHCA issued the FAR. The FAR served as AHCA’s final determination that Medicaid had overpaid Respondent. The FAR set forth the following bases for AHCA’s determination that Respondent was overpaid: Documentation Supported a Lower Level of Service (“LL”): The peer review of Respondent’s records revealed that the documentation Respondent submitted for payment did not support level of service for some claims. These claims may involve an established patient that Respondent coded as a new patient (which is billed at a higher level). AHCA believed that Respondent should have used a different code for the service he provided. AHCA considered the Medicaid payments made to Respondent for these services in excess of the appropriate amount an overpayment.4/ No Documentation (“No Doc”): Respondent’s records revealed that some medical services for which Respondent billed and received payment were incomplete or lacked sufficient documentation. AHCA considered the Medicaid payments for these services an overpayment.5/ Not Medically Necessary (“NMN”): The peer review of Respondent’s claims revealed that the documentation did not support the medical necessity of some of the claims Respondent presented for payment. (Respondent explained that this category of claims related to occlusal x-rays he obtained from dental patients for whom he also had taken panorex x-rays. The peer review considered these charges duplicative.) Therefore, AHCA considered the Medicaid payments made to Respondent for these claims an overpayment.6/ Erroneous Coding (“EC”): The peer review of Respondent’s claims revealed that some services rendered were erroneously coded on the submitted claim. These services documented one activity, but another billing code was identified. Consequently, AHCA considered Medicaid payments made to Respondent for claims in excess of the appropriate service an overpayment.7/ Behavioral Management (“BM”) Services Not Reimbursable: The peer review of Respondent’s claims revealed that Respondent did not adequately explain his claims for BM services. Respondent should not have requested payment for BM without explaining why BM was used or the specific type of BM techniques utilized for treatment. Furthermore, the peer review determined that Respondent should not have included BM in his claim if he also billed for either sedation or analgesia on the same date of service. AHCA considered Medicaid payments made to Respondent for these BM claims an overpayment.8/ The FAR also notified Respondent that AHCA had calculated and was seeking to assess a fine of $35,543.54 (since lowered to $34,192.30). Ms. Olmstead explained that, in accordance with section 409.913(15), (16), and (17) and rule 59G- 9.070, AHCA must apply sanctions for violations of federal and state laws, including Medicaid policy. AHCA determined to sanction Respondent in the form of an administrative fine. After determining that Respondent had been overpaid for Medicaid claims, AHCA prepared a Documentation Worksheet for Imposing Administrative Sanctions (“Worksheet”). The Worksheet was signed on April 7, 2015, by an AHCA investigator. Ms. Olmstead also signed the Worksheet after she reviewed and approved the form. The Worksheet specified how AHCA calculated the fine it sought to impose on Respondent for the Medicaid claims violations listed above. As noted on the Worksheet, AHCA found a total of 58 claims violated Medicaid laws, policies, and rules. The specific number of claims in violation were: lower level of service 38; no documentation, 9; not medically necessary, 8; error in coding, 2; and behavior management/illegal documentation, 1. The Worksheet also contained a section that read: Confirm that you have considered the following via checking the box: I have considered the serious & extent of the violation. I have considered whether there is evidence that the violation is continuing after written notice. I have considered whether the violation impacted the quality of medical care provided to Medicaid recipients. I have considered whether the licensing agency in any state in which the provider operates or has operated has taken any action against the provider. If the sanction to be imposed is suspension or termination, I have considered whether the sanction will impact access by recipients to Medicaid services. The AHCA investigator placed a checkmark by each consideration. AHCA did not use any additional forms or methods to document its consideration of these factors. AHCA did not provide the Worksheet to Respondent with the FAR. The Worksheet is an internal AHCA document the investigator and administrator use to calculate the amount of a fine. However, AHCA did include in the FAR the final monetary sanction which AHCA calculated on the Worksheet ($35,543.54). Ms. Olmstead stated that AHCA considered Respondent’s failure to comply with Medicaid laws a “first offense.” Pursuant to rule 59G-9.070(7)(e), AHCA shall impose a $1,000 fine per claim found to be in violation for a first offense. Accordingly, based on the 58 claims reviewed for the audit, AHCA calculated a fine of $58,000.00. Thereafter, rule 59G-9.070(4)(a) instructs AHCA to limit the monetary sanction for a “first offense” violation of Medicaid laws under rule 59G-9.070(7)(e) to twenty percent of the amount of the overpayment. Thus, AHCA reduced the amount of the fine it seeks to impose on Respondent to $34,192.30. Finally, Ms. Olmstead testified that the FAR cited to several documents that AHCA distributes to guide and inform providers of the types of services that the Medicaid program covers and how to correctly bill Medicaid for these services. The documents applicable to this matter are: the 2007 Florida Medicaid Dental Services Coverages and Limitations Handbook; the 2008 Florida Medicaid Provider General Handbook; the 2011 Florida Medicaid Dental Services Coverages and Limitations Handbook; and the 2012 Florida Medicaid Provider General Handbook. Respondent testified on his own behalf. Respondent testified that this Medicaid audit was the first he has experienced. Prior to this matter, he has never been fined or sanctioned for any violations of the Medicaid program. Respondent also emphasized that this Medicaid audit did not show that he ever rendered sub-quality dental care to any of his patients. Respondent acknowledged that he currently receives the Medicaid Handbooks electronically. Respondent conceded that he is bound to adhere to the Medicaid guidelines in the Handbooks. Respondent offered the following explanations for the claims he submitted which resulted in the overpayments: Not Medically Necessary: Respondent understood that AHCA determined that his claims for occlusal x-rays were considered duplicative. Respondent explained that the occlusal x-rays reveal tooth decay and disease that panorex x-rays do not. Furthermore, Respondent’s use of the occlusal x-rays did not result in any harm to his patients. On the contrary, Respondent expressed that these x-rays only enhanced the services and treatment he provided to his patients. Behavioral Management (“BM”) Services: The BM fee compensates the provider for the effort and time it takes to prepare a patient for dental treatment or control the patient during treatment. In many cases, if Respondent cannot employ BM techniques, he cannot render effective dental treatment. Respondent charges approximately $35 for BM services. Insufficient Records: Respondent stated that the medical notes and records that his office maintains meet or exceed Florida standards. However, certain of his records apparently did not comply with Medicaid program requirements. Respondent further asserted that AHCA never alleged that he sought payment for services he never delivered or were not completed. Sabrina Blake is the office manager for Respondent’s dental practice. As part of her responsibilities, she handles billing practice inquiries. Regarding AHCA’s claim of insufficient records to support the BM charges, Ms. Blake explained that Respondent marked “BM” on the patients’ records to indicate that a behavior management technique was used. The error was that Respondent did not write out exactly what behavior management technique was used during the treatment. Medicaid rules required additional information or documentation. Therefore, while Respondent’s practice did not provide the requisite notation to support a Medicaid payment for BM charges, Respondent did actually provide the service claimed. Respondent stated that AHCA never provided him the opportunity to correct any alleged violations or billing errors. Respondent claims that none of the disallowed charges or medical services were submitted to intentionally obtain an unauthorized payment from the Medicaid program. AHCA did not produce evidence to contradict Respondent’s assertion. Prior to the final hearing, the parties entered into an agreement wherein Respondent agreed to repay to AHCA the full amount of the overpayment Respondent received from the Medicaid program.9/ Based on the overpayment, AHCA seeks to impose on Respondent an administrative fine of $34,192.30. Accordingly, the primary issue for the undersigned to consider is whether AHCA is authorized under the applicable law to impose on Respondent an administrative sanction in the form of a fine as a result of his violation of Medicaid laws, rules, or policy. Based on the evidence presented at the final hearing, AHCA proved by clear and convincing evidence that Respondent failed to comply with provisions of the Medicaid laws.10/ As detailed below, section 409.913 and rule 59G-9.070 authorize AHCA to impose a fine on Respondent in the amount of $34,192.30 based on his violations of the Medicaid program. Consequently, a fine of $34,192.30 should be assessed against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order imposing an administrative fine of $34,192.30 for Respondent’s first offense of violating provisions of Medicaid provider publications adopted by AHCA rules, Florida or federal laws or regulations governing the Medicaid program, or the provider’s Medicaid agreement with AHCA. DONE AND ENTERED this 10th day of March, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2016.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1988. WILLIAM J. KENDRICK 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 16th day of May, 1988. COPIES FURNISHED: Bill O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Braxton, Esquire 9100 South Dadeland Boulevard #406 Miami, Florida 33156 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent was originally licensed to practice medicine in Florida on August 15, 1956. Respondent's license was placed on inactive status on December 13, 1979, and currently remains on inactive status. Respondent's last known address is 6201 Riverdale Road, Riverdale, Maryland 20801 (Petitioner's Exhibit No. 1). On May 6, 1983 Respondent, by Indictment No. 18312601, was indicted for six counts of Medicaid fraud, three counts of false pretenses and one count of theft in the Circuit Court for Baltimore City, Maryland (Petitioner's Exhibit No. 2). On March 12, 1984, after Respondent's bench trial, the Circuit Court for Baltimore City ordered a judgment of conviction as to the six counts of Medicaid fraud. Respondent was acquitted of the other four counts of the indictment (Petitioner's Exhibit No. 2, P. 39 of the memorandum opinion). Respondent's conviction resulted from the inclusion of nonallowable costs in applications for Medicaid funds submitted by Magnolia Gardens Nursing Home while Respondent was the administrator and a 50 percent owner of the nursing home. The trial court specifically found that Respondent knew that nonreimbursable costs for construction done to Respondent's personal residences and medical office building were included in applications for Medicaid payments (Petitioner's Exhibit No. 2, p. 39 of memorandum opinion). Use of Medicaid funds for improvements to a private physician's office is a violation of Maryland state law which clearly relates to the practice of medicine. As a result of Respondent's conviction for Medicaid fraud, he was sentenced to concurrent five-year terms of imprisonment on each of the six counts. All but 18 months of the sentence was suspended. Respondent was placed on 18 months of work release and 18 months of community service after work release at the rate of 20 hours per week. Respondent was also fined $60,000 and ordered to pay $50,000 restitution. Additionally, Respondent was placed on two years of unsupervised probation (See docket entry of April 23, 1984, Petitioner's Exhibit No. 2). On April 30, 1984 Respondent appealed his conviction to the Court of Special Appeals of Maryland (See docket entry of April 30, 1984, Petitioner's Exhibit No. 2). On November 6, 1985 the Maryland Court of Special Appeals rendered its opinion in William R. Greco v. State of Maryland, Case No. 171 (Petitioner's Exhibit No. 2). Respondent's conviction was affirmed in all aspects and Respondent's sentence was affirmed as to the order to make restitution which was vacated (See Mandate of the Court of Special Appeals of Maryland, dated December 6, 1985, Petitioner's Exhibit No. 2). On October 3, 1986, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals. Greco v. State, 307 Md. 470, 515 A.2d 220 (1986). On December 4, 1984 Respondent was suspended from participation in the federal Medicare and Medicaid programs for a period of ten years (Petitioner's Exhibit No. 3).
Recommendation It is recommended that Respondent's license to practice medicine be revoked. DONE and ORDERED this 30 day of December, 1986 in Tallahassee, Florida. SHARYN L. SMITH 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 30th day of December, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William W. Cahill, Jr., Esquire WEINBERG and GREEN 100 South Charles Street Baltimore, Maryland 21201 Dr. William R. Greco 6201 Riverdale Road Riverdale, Maryland 20737 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
