The Issue The issue for determination is whether Petitioner was overpaid by the Medicaid program as set forth in Petitioner's Final Agency Audit Report dated June 12, 2006 for the period January 1, 2002 through December 31, 2004.
Findings Of Fact AHCA audited certain of Dr. Negrette's Medicaid claims pertaining to services rendered between January 1, 2002 and December 31, 2004, hereinafter the audit period. Dr. Negrette was an authorized Medicaid provider during the audit period. During the audit period, Dr. Negrette had been issued Medicaid provider number 061422000. No dispute exists that, during the audit period, Dr. Negrette had a valid Medicaid Provider Agreement with AHCA. For services provided during the audit period, Dr. Negrette received in excess $79,523.70 in payments for services to Medicaid recipients. By a preliminary audit report dated August 25, 2005, AHCA notified Dr. Negrette that a preliminary determination was made that he was overpaid by the Medicaid program in the amount of $137,051.25. Subsequently, by a FAR dated June 12, 2006, AHCA notified Dr. Negrette that, after a review of all documentation submitted, it determined that he had been overpaid by the Medicaid program in the amount of $79,523.70, thus, reducing the amount of the overpayment. The FAR further provided how the overpayment was calculated using a sample of the claims submitted during the audit period, including the statistical formula for cluster sampling; and indicated that the statistical formula was generally accepted and that the statistical formula showed an overpayment in the amount of $79,523.70, with a 95 percent probability of correctness. Dr. Negrette agrees that the mathematical computation of the audit is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Jesus Negrette, M.D., received overpayments from the Medicaid program in the amount of $79,523.70, during the audit period January 1, 2002 through December 31, 2004, and requiring Jesus Negrette, M.D., to repay the amount of overpayment. DONE AND ENTERED this 5th day of February, 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 5th day of February, 2007.
The Issue The issues presented are whether Petitioner is responsible for reimbursing the Agency for Health Care Administration for an overpayment for Medicaid services and, if so, whether administrative sanctions should be applied.
Findings Of Fact From April 19, 1995, through October 30, 1996, Petitioner was a pharmacy licensed to do business in the State of Florida. From April 15, 1995, through October 30, 1996, Petitioner was a Medicaid provider in good standing, pursuant to a Medicaid contract with the Agency. In 1996 Kathryn Holland, an agency employee, conducted an audit of Petitioner's records, using a method which the Agency calls an aggregate analysis. This analysis focuses on the inventory of a Medicaid provider and analyzes invoices and other documentation to determine if the provider had available during the audit period sufficient quantities of goods or products to support the quantity of goods or products billed to Medicaid. Holland analyzed the Agency's records to ascertain the claims filed by Petitioner and the amounts paid to Petitioner. She compiled a list of those drugs most frequently billed to the Agency's Medicaid program by Petitioner and selected 23 medications. She selected April 1, 1995, through October 30, 1996, as the audit period. She contacted Petitioner and requested records showing Petitioner's purchases of the medications on that list. She also contacted Mason Distributors, Inc., and H. I. Moore, Inc., two of Petitioner's primary suppliers, and requested copies of their invoices for medications purchased by Petitioner between May 1, 1995, and October 28, 1996. She prepared charts of the invoices and other documents received as a result of her requests. She reduced the number of audited drugs to 20 based upon adequate documentation provided to her for three of the listed medications. She prepared a preliminary report, which she sent to Petitioner with a request that Petitioner supply her with any additional records to show that additional supplies of the listed medication were available to Petitioner during the audit period. Petitioner responded to that request by providing additional documentation. Holland did not credit Petitioner with additional supplies based upon the additional documentation because the invoices appeared to be for a different pharmacy or appeared to reflect purchases outside the audit period. Further, the cancelled checks were payable to cash, had no notation as to the purpose of the checks, had a notation reflecting only a "business expense," had a notation for medication not on Holland's list, or reflected purchases outside the audit period. Petitioner was unable to document sufficient inventory during the audit period to justify the amount of medication billed to, and paid for by, the Agency. The Agency overpaid Petitioner in the amount of $12,529.11 for the 20 listed medications during the audit period and is entitled to reimbursement by Petitioner in that amount.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered determining that Petitioner is responsible to repay the Agency in the amount of $12,529.11 by a date certain, imposing an administrative fine in the amount of $2,000, and terminating Petitioner from the Medicaid program for a period of two years. DONE AND ENTERED this 20th day of March, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 20th day of March, 1998. COPIES FURNISHED: Thomas Falkinburg, Esquire Mark Thomas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 William M. Furlow, Esquire Katz, Kutter, Haigler, Alderman, Marks, Bryant & Yon, P.A. Highpoint Center, Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Paul J. Martin, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308
The Issue The issues in this matter are whether Petitioner has shown that he is rehabilitated from his disqualifying offense; and, if so, whether a decision by the Agency for Health Care Administration to deny Petitioner’s request for an exemption from disqualification for Medicaid provider enrollment would constitute an abuse of discretion.
Findings Of Fact Petitioner is a licensed radiologist seeking to reenroll as a Medicaid provider in Florida. To participate in the Medicaid program, health care providers apply to AHCA and must comply with the background screening standards set forth in section 435.04, Florida Statutes. AHCA is designated as the single state agency responsible for administering and overseeing the Medicaid program in the State of Florida. See §§ 409.902 and 409.913, Fla. Stat. AHCA is responsible for conducting background screenings for employees who provide specific types of services in health care facilities. This responsibility includes approving individuals who desire to enroll as Medicaid providers in order to render services to Medicaid recipients. See §§ 409.907 and 435.04(4), Fla. Stat. Petitioner has been licensed with the Florida Department of Health, Board of Medicine, since May 2005 (license number ME93275), and has remained in good standing since that date. Petitioner practices at Price, Hoffman and Stone, a radiological group located in St. Petersburg, Florida. Petitioner is part- owner of their radiology practice. From 2008 through December 2017, Petitioner was admitted into the Medicaid program through a ten-year Medicaid provider agreement with AHCA. Accordingly, Petitioner was authorized to receive reimbursement for covered services rendered to Medicaid recipients. During this time period, Petitioner treated Medicaid recipients in Florida. At the final hearing, AHCA did not express any concerns with Petitioner’s level of care during his decade long participation in the Medicaid program. Neither did AHCA present any evidence of complaints of abuse or negligence from the Medicaid patients Petitioner served. Petitioner’s Medicaid provider status expired in the fall of 2017. To continue his participation in the Medicaid program, Price, Hoffman and Stone applied to AHCA to renew Petitioner’s Medicaid provider credentials. Petitioner’s application required him to undergo the Level 2 background screening process established in section 435.04. See §§ 409.907(8) and 435.02, Fla. Stat. Petitioner’s background screening revealed a criminal offense. Specifically, on August 11, 2007, Petitioner was arrested for and charged with false imprisonment and battery. On or about September 26, 2007, Petitioner pled guilty to one charge of false imprisonment in violation of section 787.02, Florida Statutes (2007)(a felony of the third degree), as well as misdemeanor battery in violation of section 784.03, Florida Statutes (2007). The court accepted Petitioner’s guilty plea to battery and entered a verdict of guilty. The court withheld adjudication on the charge of false imprisonment. In September 2007, Petitioner was sentenced to three years of probation. He was also ordered to pay court costs, as well as perform 50 hours of community service. Petitioner completed his probation in January 2010. The Florida Board of Medicine also reviewed Petitioner’s criminal incident. Ultimately, after appearing before a disciplinary hearing, the Board of Medicine formally reprimanded Petitioner. Petitioner was also ordered to pay a $11,000 fine, as well as complete 100 hours of community service. In addition, Petitioner was directed to receive treatment from a psychiatrist in the Professionals Resource Network Program for a period of five years. However, the Board of Medicine allowed Petitioner to retain his medical license and continue the active practice of radiology in Florida. The fact that Petitioner is not currently an enrolled Medicaid provider does not prevent him from treating Medicaid recipients. Petitioner’s medical license is clear and active with the Florida Board of Medicine. Therefore, he may render radiological services to anyone in the State of Florida. However, because AHCA will not authorize Petitioner to participate in the Medicaid program, he cannot bill Medicaid for his medical services. See § 409.907, Fla. Stat. Under section 435.04(2)(m), Petitioner’s guilty plea to false imprisonment disqualifies him from participating as a Medicaid provider in any AHCA regulated facility. Consequently, in order to serve the Medicaid population, Petitioner requested an exemption from disqualification as authorized under section 435.07.4/ Petitioner submitted his application for exemption to AHCA on April 11, 2018. On June 15, 2018, after considering Petitioner’s Request for Exemption, AHCA issued a letter notifying him that it denied his application. As quoted in the letter, AHCA considered several factors, including, but not limited to: the circumstances surrounding the criminal incident for which an exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The letter did not contain any other details explaining the denial except to state that, based on these factors, AHCA found that Petitioner did not provide clear and convincing evidence of his rehabilitation. At the final hearing, Petitioner testified regarding how he is rehabilitated from his criminal background, and why he should be granted an exemption from disqualification. Petitioner initially described his current medical practice. He is a board-certified radiologist, with a subspecialty in musculoskeletal imaging. He works out of two offices in St. Petersburg and serves the greater Tampa Bay area. A large part of Petitioner’s practice is devoted to women’s diagnostic breast imaging, including mammographic, ultrasound, and MRI detection of breast cancer. Petitioner spends the majority of his time reading films and images. However, his practice occasionally calls for personal patient contact including the performance of biopsies, aspirations, and injections. Regarding the 2007 criminal offense, Petitioner described the facts and circumstances leading to his arrest and guilty plea to false imprisonment. Petitioner testified that the incident involved a woman he was dating at the time. One day, in his apartment, she revealed to him that she was actually married. Petitioner became intensely angry. He reacted physically. He “grabbed her and held her down on the bed and restrained her.” He cut off her clothes with scissors. He “got on top of her and wouldn’t let her go.” He yelled at her and tried to get answers from her. Petitioner then bound her hands and legs with tape. She remained confined on his bed for up to five hours. She eventually managed to free herself. She escaped his apartment and alerted law enforcement. Petitioner was promptly confronted and arrested. In asserting that he is rehabilitated from his disqualifying offense, Petitioner described a number of steps he has taken to better himself. Petitioner initially explained that, as part of his Professional Resource Network treatment for the Florida Board of Medicine, he twice traveled to Kansas to be evaluated by several psychologists and psychiatrists. Thereafter, he was required to attend weekly meetings with a local therapist for five straight years. In total, Petitioner has been assessed by at least four psychiatrists and mental health professionals since 2007. Petitioner represented that all have concluded that he presents no danger to the public or his patients. Petitioner further expressed that he has participated in (and continues to seek out) a number of continuing education courses focused on domestic violence and anger management issues. Petitioner declared that he has made a constant and determined effort to address how he responds to anger and controls his emotional impulses, as well as how he must respect others’ boundaries. In addition to his ongoing professional education, Petitioner testified that he has devoted significant energy to becoming a better person. For several years, he has volunteered every Saturday morning at The Spring of Tampa Bay, a domestic violence center for Hillsborough County. Petitioner also volunteers as a Little League coach, as well as with his church, which he attends regularly with his family. At the final hearing, Petitioner openly discussed the regret and shame he feels for his prior conduct. He readily acknowledged the emotional and physical impact his actions had on his former girlfriend. Petitioner stressed that he is extremely remorseful for his behavior. Petitioner urged that he takes full responsibility for his crime. Petitioner further testified that he has fully explained his criminal background on numerous occasions, including to his wife, at least four mental health counselors, the Florida Board of Medicine, the Missouri Medical Board, the Nevada Medical Board, numerous private insurance companies, the American Board of Radiology, as well as his partners at his radiologic clinic. Petitioner insisted that he has always been candid and honest with AHCA when describing the incident. No evidence indicates that Petitioner has been arrested, charged, convicted, or otherwise involved in any criminal activity since 2007. At the final hearing, Petitioner offered the testimony of several individuals to support his Request for Exemption. Petitioner first called Brent Price, M.D., with whom Petitioner practices at Price, Hoffman and Stone in St. Petersburg. Dr. Price also specializes in radiology. Dr. Price hired Petitioner at their radiology clinic in 2007. Dr. Price testified that Petitioner is an intelligent and skilled doctor. He has never seen Petitioner act unprofessionally or endanger a patient in the 12 years they have worked together. On the contrary, Dr. Price described Petitioner’s interactions with patients as “impeccable.” Dr. Price relayed that Petitioner personally informed him of his criminal history shortly after Petitioner started working at their clinic. Dr. Price stated that he could have fired Petitioner at that moment (or, at any time thereafter), but he believes in second chances. Therefore, he decided to provide Petitioner a path to partnership. Dr. Price maintained that he has never seen Petitioner not be remorseful for his past criminal conduct. Dr. Price also articulated that Petitioner’s inability to bill Medicaid for his services places a significant burden on their practice. Currently, their clinic must schedule Medicaid recipients in a manner that allows them to see a doctor who can charge for his or her treatment. This process can delay medical care for the patient. Petitioner presented the testimony of Dr. Gregory Carney, a fellow radiologist, as well as a close personal friend. Dr. Carney has known Petitioner for about 14 years. Dr. Carney supervised Petitioner during his fellowship at the University Diagnostic Institute through the University of South Florida. Dr. Carney described Petitioner as an “excellent,” “even-keeled,” “insightful,” and “very competent” doctor. He further relayed that he has watched Petitioner interact with many, many patients. He is not aware of anyone who was ever in danger in Petitioner’s care. On the contrary, Dr. Carney asserted that Petitioner is extremely good with patients and adept at making them feel at ease. Cheryl Wieder testified in support of Petitioner. Ms. Wieder is a radiologic technologist who has worked for Petitioner’s radiology clinic for 32 years. She first met Petitioner when he joined the clinic, 12 years ago. Petitioner is her supervisor. Ms. Wieder estimated that she and Petitioner have treated approximately 3,000 patients together. Regarding Petitioner’s character and demeanor, Ms. Wider expressed that Petitioner is “amazing” with patients. She described him as “calming,” “reassuring,” and “very caring.” She has never seen Petitioner angry or act unprofessionally at the clinic. On the contrary, Ms. Wider voiced that Petitioner’s compassion and empathy towards his patients has helped numerous women navigate their fight against breast cancer. Ms. Wieder declared that Petitioner is the best radiologist in their community. Ms. Wieder learned of Petitioner’s criminal incident from Dr. Price shortly after he started with Price, Hoffman and Stone. However, she insisted that she has never seen any patient placed at risk in Petitioner’s care. Ms. Wieder further stated that whenever Petitioner meets with a patient, without exception, he has a technologist present in the room with him. Finally, Ms. Wieder disclosed that Petitioner personally diagnosed and treated her for breast cancer. She proclaimed that Petitioner saved her life. Finally, Petitioner’s wife, Lina Goodrum, testified on behalf of her husband. Ms. Goodrum stated that she met Petitioner in 2009, and they have been happily married since 2012. They have two children. Ms. Goodrum expressed that Petitioner fully explained his past to her. He never hid the details of his crime from her, and he is very remorseful for his actions. Ms. Goodman further conveyed that she has never felt threatened by him. Ms. Goodrum urged that her husband is a kind, patient, and good father. She believes that he has learned from his mistakes. Ms. Goodrum also relayed that Petitioner is involved in a strong peer group. At the final hearing, AHCA presented several individuals who were involved in its review of Petitioner’s application to explain AHCA’s procedures for background screenings and requests for exemptions for enrollment in the Medicaid program. AHCA first called Vanessa Risch who currently serves as AHCA’s Operations and Management Consultant Manager. As part of her duties, Ms. Risch supervises AHCA’s background screening unit. Her unit reviews background screenings for all persons seeking eligibility to become Medicaid providers. The background screening unit handles approximately 150 files at any one time, per month. Ms. Risch initially relayed that the Secretary of AHCA, as its agency head, is the sole approval authority for all requests for exemption submitted to AHCA. (Justin Senior was AHCA Secretary at the time Petitioner submitted his request for exemption.) However, before the Secretary grants or denies a request for exemption, Ms. Risch’s section reviews and gathers information on each application. Ms. Risch explained that when a background screening reveals that an applicant has a “disqualifying offense” under section 435.04, AHCA’s first step is to issue a disqualification letter notifying the applicant that he or she is not eligible for Medicaid provider enrollment. The letter also informs the applicant of their right to request an exemption from the disqualifying offense. Regarding Petitioner, AHCA sent him a disqualifying letter in or around October 2017. Thereafter, AHCA offers to conduct a telephonic hearing during which the applicant has the opportunity to explain the facts and circumstances surrounding the disqualifying offense. In this matter, at Petitioner’s request, AHCA conducted a teleconference on June 12, 2018. Ms. Risch led the discussion using a standard set of questions. She was joined by Shanita Council, a Health Care Services and Facilities Consultant for AHCA, as well as Antonia Lozada, an AHCA attorney. Petitioner’s legal counsel participated with Petitioner over the phone. Although Ms. Risch did not offer a recommendation to Secretary Senior regarding Petitioner’s application, at the final hearing she disclosed that, after speaking with Petitioner during the teleconference, she believed that he was remorseful for his past criminal conduct. Shanita Council testified regarding her role in AHCA’s review of Petitioner’s request for exemption. Ms. Council was the exemption analyst AHCA assigned to process Petitioner’s application. Ms. Council explained that Petitioner’s request for exemption was initially received through the AHCA clearinghouse, and assigned for processing. After she received Petitioner’s application, she reviewed it to ensure that his documentation was complete. Thereafter, because Petitioner’s crime was considered a “serious offense,” she personally set up the teleconference with Petitioner and his legal counsel. After the teleconference, Ms. Council completed an Exemption Decision Summary. Ms. Council described this document as a summary of the application information, which could later be reviewed by the AHCA Secretary. Thereafter, she forwarded Petitioner’s entire exemption case file, through Samantha Heyn, to Secretary Senior for final determination. Ms. Council expressed that she made no recommendation on the Exemption Decision Summary regarding whether Petitioner’s application should be granted or denied. As with Ms. Risch, following the teleconference, Ms. Council did not have the impression that Petitioner was not remorseful for his past actions, or that he was not honest or forthcoming during the teleconference. Samantha Heyn, AHCA’s Senior Management Analyst Supervisor, “staffed” Petitioner’s request for exemption application with Secretary Senior. Ms. Heyn explained that Petitioner’s case file included a number of documents for Secretary Senior to review. This information included Ms. Council’s Exemption Decision Summary, worksheets from the teleconference, as well as written notes from the background screening staff. Ms. Heyn, in line with Ms. Risch and Ms. Council, was careful to explain that AHCA’s background screening staff does not make any recommendations whether to approve or deny an application. The Secretary is the sole decision-maker regarding whether a request for exemption is granted. Ms. Heyn met with Secretary Senior weekly to review pending exemption requests. Each meeting was scheduled to last an hour during which the Secretary would review approximately 30 to 35 applications on average. Ms. Heyn took Petitioner’s request for exemption to Secretary Senior in June 2018. During their meeting, Ms. Heyn recalled that Secretary Senior reviewed the Exemption Decision Summary and asked her several questions about Petitioner’s application. Ms. Heyn also relayed that, although the teleconference was recorded, Secretary Senior did not listen to the audio recording. Thereafter, Secretary Senior informed Ms. Heyn that he was denying Petitioner’s request. Secretary Senior did not explain the basis for his decision. He commented, however, that Petitioner could reapply with the next AHCA Secretary. Justin Senior was Secretary of AHCA in June 2018. (He departed AHCA in January 2019.) As Secretary, he made the decision to deny Petitioner’s application for exemption from disqualification. At the final hearing, Mr. Senior testified that, to the best of his recollection, he denied Petitioner’s exemption request based on “a combination of factors.” These factors included the lack of time that had elapsed between the offense and the date of review (approximately ten years). Mr. Senior was also alarmed at the seriousness of Petitioner’s crime. Mr. Senior expressed that the fact that Petitioner “kidnapped a woman and bound her to a bed, [had] taken her clothes off and held her for an . . . undetermined period of time” was a significant factor in his consideration. Mr. Senior further stated that Petitioner included several remarks on his application which indicated to him that Petitioner did not regard “his offense as particularly serious.” Mr. Senior based this conclusion on Petitioner’s comments that he did not “serve any jail time” and paid a “nominal” fine, as well as a psychological evaluation wherein Petitioner described his crime as “a mild degree of physical assault that he shouted at her for an hour.” Pet. Ex. 23 and 25. To Mr. Senior, Petitioner seemed to be making light of the crime. Neither did Petitioner appear adequately remorseful based on his written application. In describing his standard practice, Mr. Senior explained that he had no set criteria for approving or denying a request for exemption. However, the two most noteworthy factors he considered were the seriousness of the offense and the time that had passed since the offense. Mr. Senior added that he considered himself fairly lenient in granting exemption requests. He rarely denied an application. In Petitioner’s case, however, the circumstances surrounding Petitioner’s particularly “memorable” crime cast serious doubts on his rehabilitation. Consequently, after reviewing Petitioner’s explanation, as well as the information included in the application, Mr. Senior determined that Petitioner had failed to present clear and convincing evidence of rehabilitation. After denying Petitioner’s request for exemption, Mr. Senior returned Petitioner’s application to Ms. Heyn for processing. On June 15, 2018, AHCA issued a letter notifying Petitioner that it denied his Request for Exemption. Upon careful consideration of the evidence presented at the final hearing, the undersigned finds that Petitioner demonstrated, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense. The credible and earnest testimony from Petitioner, Dr. Price, Dr. Carney, Ms. Wieder, and Ms. Goodrum unquestionably establishes that Petitioner is now a responsible person who is rehabilitated from his 2007 criminal offense. Further, Petitioner has provided radiologic services to his community for over 12 years (ten of those years as a Medicaid provider) without any evidence of abuse or unprofessionalism. Petitioner clearly proved that he will not present a danger to any Medicaid recipients he treats. Further, as more fully addressed below, the undersigned concludes that if AHCA were to deny Petitioner’s Request for Exemption on this record, and refuse to allow Petitioner to reenroll as a Medicaid provider, such denial would constitute an abuse of discretion. Therefore, Petitioner has met his burden of demonstrating that AHCA should grant his Request for Exemption from Disqualification under section 435.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order granting Petitioner’s request for an exemption from disqualification from enrollment in the Medicaid program. DONE AND ENTERED this 9th day of September, 2019, 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 9th day of September, 2019.
The Issue The issues are 1) whether Dr. Veloso's eligibility to participate in the Florida Medicaid program as a provider of physician services should be terminated, due to his guilty plea to a charge of Medicaid fraud in the Circuit Court for the 15th Judicial Circuit, Palm Beach County, Florida and 2) whether a stay of the termination should be granted pending disposition of Dr. Veloso's appeal.
Findings Of Fact At all times material hereto, Dr. Veloso was a provider of medical services to persons who qualify for the Medicaid program and received reimbursement from Medicaid funds for his services. The Department is designated to administer the provision of Medicaid funds in Florida. Dr. Veloso is a licensed physician and a licensed pharmacist who practices in South Florida and whose patients are primarily Medicaid eligible. Dr. Veloso does not necessarily maintain a regular office practice. In addition to treating patients at his offices in West Palm Beach and Miami, he sees them at their homes, at the pharmacy or wherever is most convenient to the patients. As a provider of services to Medicaid eligible patients, Dr. Veloso is charged with the responsibility of being familiar with the rules and law relating to the Medicaid program. On November 4 1987, the Medicaid Fraud Control Unit of the Office of the Auditor General received a call alleging that Dr. Veloso was making a copy of a Medicaid card when he filled a prescription. Dr. Veloso was employed at the caller's pharmacy as a part-time pharmacist. An investigation of Dr. Veloso's medicaid billing practice ensued. The investigation revealed that Dr. Veloso was billing for office visits on Miami Medicaid residents although his practice of record was located in West Palm Beach. The investigators interviewed sixteen households for whom Medicaid billings had been submitted by Dr. Veloso. The interviews resulted in the taking of sworn statements of six of the patients from the sample households who denied that they had received the treatment for which Dr. Veloso had filed reimbursement. None of the six patients was present or testified at the hearing. In his testimony, however, Dr. Veloso, countered the denials of each of the six patients. He described the treatment he had given each of the six and produced the patients' medical records to verify his statements. As to why the patients allegedly made the contradictory statements, Dr. Veloso asserted that they were quite possibly intimidated by the investigator since the patients did not have complete command of the English language and the investigator presented herself with an official badge for identification prior to the interview. Dr. Veloso also stated that if any mistakes had been made, they were only clerical. He explained that his wife prepared most of his billings at their home, and although he admitted that he was responsible for her actions, he represented that mistakes, if any, were inadvertently made. At the hearing, the investigator testified that it was her conclusion that Dr. Veloso did knowingly file false claims for services. Although the files for the six patients were received into evidence and each corroborates that he did in fact treat the patients, the actual disputed billings were not offered at the hearing. A comparison between the treatment given to the patients and the alleged fraudulent billings cannot be made. Given the demeanor of the witnesses, the competent substantial evidence received at the hearing and the lack of corroboration of the affidavits of the six patients, Dr. Veloso's testimony is deemed credible. Criminal proceedings were brought against Dr. Veloso. Dr. Veloso asserted that on the advice of his attorney, he entered his plea on October 2, 1989. The choice of plea on the judgment and sentencing form filed in this case is indicated by checking one of the three blocks on the form. The first block precedes the following statement, "Been tried and found guilty of the following crime(s)." The second block is followed by, "Entered a plea of guilty to the following crime(s)," and the final choice is a block notated by "Entered a plea of nolo contendere to the following crime(s)." The block checked in Dr. Veloso's case is the second block. Above the "X" in the block is a handwritten statement, "Alford Plea." Dr. Veloso argued that it was not his intent to enter a plea which would be an admission of culpability. He entered his plea as merely a matter of convenience and on the representation of his counsel that the plea would result in punishment similar to a misdemeanor traffic offense. Dr. Veloso, further, testified that his plea was on appeal. Except for Dr. Veloso's statements and the official court documents, no additional competent substantial evidence was presented at the instant hearing concerning the circumstances present at the time of Dr. Veloso's plea. However, the judgment and sentencing form dated October 2, 1989 clearly indicates that he entered a plea of guilty to and was adjudicated guilty of a lesser included offense of medicaid fraud under Paragraph 409.325(5)(b), Florida Statutes. His sentence was stayed, and on October 6, 1989, an Order was issued in the Circuit Court of Palm Beach County withholding adjudication for the offense and placing Dr. Veloso on probation for one year and requiring that restitution be paid to the Department of $492.00 plus costs. Although Dr. Veloso is a well intended physician, he was, in fact, found guilty of Medicaid fraud, based on a plea of guilty and is subject to termination from further participation in the Medicaid program under existent law, if the Department chooses to exercise its discretion to sanction him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order dismissing the charges against Dr. Veloso and not imposing the sanction permitted pursuant to Paragraph 409.236(11)(a), Florida Statutes, based on the exercise of its discretion. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28 day of June, 1990. JANE C HAYMAN 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 28th day of June, 1990.
