Findings Of Fact Petitioner filed with the Board of Medical Examiners an application for licensure by examination in 1983. Included with that application were original "affidavits" submitted on Petitioner's behalf by Dr. Borroto and Dr. Velez. Petitioner filed an application for licensure by endorsement in October of 1984. In conjunction with his application for licensure by endorsement, Petitioner submitted photocopies of the "affidavits" submitted with his 1983 application for licensure by examination. These photocopies of Dr. Borroto's and Dr. Velez's "affidavits" were submitted by Petitioner with notarized attestations that the notary had in fact seen the originals. Petitioner knew that this was not true. On December 28, 1984, Dorothy Faircloth, Executive Director of the Board of Medical Examiners (hereinafter "the Board"), sent Petitioner a letter indicating, among other things, that Petitioner had submitted photocopies rather than original letters establishing his five years of licensed medical practice. Furthermore, he was notified that his application would not be complete until the originals were received. The same letter notified Petitioner that all documents to be notarized must be certified as true and correct copies of the original and stated so by the notary. Petitioner was specifically warned that the notary must see the original and copy in order to make the required statement. In January of 1985, Petitioner submitted new affidavits concerning five years of licensed medical practice. On August 2, 1985, Petitioner attended a meeting of the Board's Foreign Medical Graduate Committee (hereinafter "FMGC") in order to address problems with his application for licensure by endorsement. At that meeting, Petitioner failed to satisfactorily address the issues concerning affidavits attesting to his five years of licensed medical practice. The committee voted to recommend denial of Petitioner's application based upon the lack of personal knowledge of the affiants, improper notarization of the purported affidavits and fraudulent notarization of the 1983 affidavits of Dr. Borroto and Dr. Velez. The Board considered Petitioner's application for licensure by endorsement on August 3, 1985, and voted to deny licensure based on the recommendations of the FMGC. An Order to that effect was filed on August 26, 1985. On October 4, 1985, the FMGC reconsidered Petitioner's application, including new affidavits from Dr. Oscar R. Bravo-Campa, Dr. Juan A. Enriquez- Elesgaray and two other licensed physicians. However, the FMGC determined that the new affidavits did not overcome the problems raised during Petitioner's original attempt to obtain licensure by endorsement and voted to reaffirm their previous recommendation. On October 5, 1985, the Board reconsidered Petitioner's application for licensure by endorsement and voted to reaffirm its previous denial. An Order to that effect was filed on March 27, 1986. Dr. Pedro G. Velez's certification dated January 10, 1983, stated that he had personal knowledge of Petitioner's medical practice in Cuba from January 1971 to June 1980. At the final hearing in this cause, Dr. Velez testified that he has known Petitioner personally only since the 1980s and that he did not know him professionally in Cuba at all. Dr. Velez also testified that he left Cuba in 1966 and that he might have met Petitioner when Petitioner was a student in 1964. Dr. Velez further testified that he signed a second letter in behalf of Petitioner. He testified that Petitioner had probably prepared it for his signature and that no one was present when he signed it. Specifically, the notary who attested to his signature was not present. Dr. Pedro G. Velez clearly had no personal knowledge that Petitioner was licensed to practice or did practice medicine in Cuba from January 1971 through June 1980. The certification completed by Dr. Esperanza Arce-Nunez, regarding Petitioner's five years of licensed medical practice and submitted by Petitioner to the Board in 1985, was not notarized as an affidavit. Dr. Arce-Nunez testified that she could not remember anything about seeing Petitioner in a practice setting in 1971, one of the years covered by her certification. In fact, her only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Oscar R. Bravo-Campa testified that he coincided with Petitioner during annual medical rotations in Havana every year. He also testified that he could not remember when or where he saw Petitioner in a practice setting during the nine years covered by his affidavit, which specifically stated that he had contact with Petitioner in a practice setting three times a year in addition to rotations every year between 1971 and 1980. In fact, his only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Ignacio Coro initially testified that he knew Petitioner for six years. In fact, Petitioner has resided in this country for approximately six years, since June of 1980. Dr. Coro subsequently claimed to know Petitioner longer than six years, about thirteen years. Although Dr. Coro's certification claimed he saw Petitioner in a practice setting twice a year from 1971 to 1980, he testified that he saw Petitioner only once in 1980. Dr. Coro could not remember seeing Petitioner in a practice setting during 1973. Dr. Coro further testified that the clarification statement, dated September 20, 1985 and attached to his September 9, 1985 affidavit, was included because Petitioner specifically requested it, and he did not know where the document was typed. The certification prepared by Dr. Juan A. Enriquez-Elesagaray and submitted by Petitioner did not contain a notarization. Petitioner testified that the letters dated September 20, 1985 and signed by Dr. Esperanza Arce-Nunez, Dr. Oscar R. Hravo-Campa, Dr. Ignacio Core, and Dr. Juan A. Enriquez- Elesgaray were each composed by the individual doctors. However, the letters are almost identical as to their wording, punctuation mistakes and misspellings. Petitioner testified both that he received his medical degree in 1971 and in 1977. Petitioner further testified that he allowed his application to be notarized by someone who did not witness his signature. Dorothy Faircloth, Executive Director of the Board, testified that the Board initially had concerns about Petitioner's application, specifically because he submitted affidavits with attestations stating that the notary had seen the originals. The Board doubted the veracity of such a statement because the originals were in the Board's possession. Ms. Faircloth also testified that the change in the Board's certification forms that took place subsequent to 1983 was an attempt to clarify and emphasize the Board's previous requirement that affiants have actual knowledge, by determining the basis and frequency of such knowledge. Petitioner took his blank application (except for Petitioner's signature) to Dr. Luis Manuel Rodriguez Molina who prepares licensure application documents for Cuba doctors seeking licensure in Florida. Molina translated and/or filled in all documents, obtained signatures, and then later had his son notarize those documents even though none was actually signed in the presence of his son, the notary public. When he submitted it to the Board, Petitioner knew that he had not signed his application in front of a notary public, and, therefore, Petitioner's affidavit portion of his application was knowingly false. The purported "personal knowledge" of each affiant and witness testifying as to Petitioner's five years of actual practice is that each between the years of 1971 and 1980 saw Petitioner at the equivalent of medical association meetings. These meetings were, however, also attended by students. Only Dr. Elesgaray could testify that he saw Petitioner in a practice setting twice each year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 13th day of January, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Ramon S. Santos, Jr., Esquire 1000 Ponce de Leon Boulevard, Suite 303 Coral Gables, Florida 33134 M. Catherine Lannon, Esquire Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be determined is the amount payable to the Agency for Health Care Administration (AHCA or Respondent) in satisfaction of its $157,983.63 Medicaid lien asserted against medical malpractice settlement proceeds received by Hunter Lamendola (Hunter), a minor, by and through his mother and natural guardian, Ashley Lamendola (Petitioner).
Findings Of Fact On June 26, 2012, Petitioner presented to the hospital with a history of contractions for six hours prior to her arrival at the hospital. She had been placed on bed rest for gestational hypertension five days prior to arriving at the hospital. When she arrived, she had hypertension. Petitioner was admitted to the labor and delivery unit at 8:33 p.m. Petitioner was placed on a fetal monitor and progressed through her course of labor. Her initial fetal monitoring showed the baby was healthy and well-oxygenated, however, throughout the course of labor, the fetal monitor exhibited signs that the baby was in significant distress. At 4:01 a.m. on June 27, 2012, Petitioner was given an epidural, and after a course of labor, Hunter was delivered at 3:47 p.m. through an operative vaginal delivery. Hunter suffered permanent and catastrophic brain damage during his birth. As a result, Hunter is unable to eat, speak, toilet, ambulate, or care for himself in any manner. Hunter’s medical care related to the delivery was paid by Medicaid. The Medicaid program through AHCA provided $157,983.63 in benefits. The Medicaid program through the Department of Health Children’s Medical Services Title XIX MMA – Pedicare (DOH), provided $26,189.66 in benefits; the Medicaid program through a Medicaid-managed care organization, known as Amerigroup Community Care (Amerigroup), provided $51,696.99 in benefits; and the Medicaid program through a Medicaid-managed care organization, known as WellCare of Florida (WellCare), provided $13,239.19 in benefits. Accordingly, the sum of these Medicaid benefits, $249,109.47, constituted Hunter’s entire claim for past medical expenses. Petitioner brought a medical malpractice action against the medical providers and staff responsible for Hunter’s care (Defendant medical providers) to recover all of Hunter’s damages, as well as her own individual damages associated with Hunter’s injuries. The medical malpractice lawsuit was settled through a series of confidential settlements totaling $10,000,000 and this settlement was approved by the Court. During the pendency of Hunter’s medical malpractice action, AHCA was notified of the action, and AHCA asserted a $157,983.63 Medicaid lien against Hunter’s cause of action and settlement of that action. AHCA, through the Medicaid program, spent $157,983.63 on behalf of Hunter, all of which represents expenditures paid for Hunter’s past medical expenses. No portion of the $157,983.63 paid through the Medicaid program on behalf of Hunter represent expenditures for future medical expenses, and Medicaid did not make payments in advance for medical care. Application of the formula set forth in section 409.910(11)(f), Florida Statutes, to Hunter’s settlement requires payment to AHCA of the full $157,983.63 Medicaid lien. Petitioner has deposited the full Medicaid lien amount in an interest-bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and this constitutes “final agency action” for purposes of chapter 120, Florida Statutes, pursuant to section 409.910(17). At the final hearing, Mr. Harwin, who represented Hunter and his family in the underlying medical malpractice action, testified, and was accepted, without objection, as an expert in the valuation of damages suffered by injured parties. Mr. Harwin is a member of several trial attorney associations, stays abreast of jury verdicts relative to birth injuries, and ascertains the value of damages suffered by injured parties as a routine part of his practice. Mr. Harwin was familiar with and explained Hunter’s catastrophic brain injury giving rise to Petitioner’s claim. He also explained that, as a result of Hunter’s injury, Hunter is blind, fed through a feeding tube, unable to control his arms, legs or head, and suffers between six to eight seizures per day. Mr. Harwin testified that Hunter’s injury has also had a devastating impact on Hunter’s mother, Ashley Lamendola. According Mr. Harwin, considering Hunter’s past medical expenses, a life care plan for Hunter’s care prepared by an economist, and the extent of non-economic damages, and in light of determinations of mock juries and a jury consultant in this case, as well as Mr. Harwin’s familiarity with jury verdicts reached in similar cases, Hunter and his mother’s damages have a value in excess of $35,000,000. Mr. Harwin’s testimony as to the value of Petitioner’s claim was credible and is accepted. Petitioner also presented the testimony of Mr. Barrett, who was accepted as an expert in the valuation of damages. Mr. Barrett has been accepted as an expert in valuation of damages in a number of other Medicaid lien cases before DOAH. Mr. Barrett has been a trial attorney for 41 years, with a primary focus on plaintiff personal injury cases, including medical malpractice, medical products liability, and pharmaceutical products liability. Mr. Barrett stays abreast of jury verdicts and often makes assessments concerning the value of damages suffered by injured parties. After familiarizing himself with Hunter’s injuries through review of pertinent medical records and Petitioner’s exhibits, Mr. Barrett offered his opinion, based upon his professional training and experience, as well as review of comparable jury verdicts, that a conservative value of the damages suffered would be “$35,000,000 to $50,000,000.” Mr. Barrett’s testimony as to the value of Petitioner’s claim was credible and is accepted. AHCA did not call any witnesses, present any evidence as to the value of Petitioner’s claim, or propose a differing valuation of the damages. Based upon the unrebutted evidence presented by Petitioner’s experts, it is found that a conservative value of Petitioner’s claim is $35,000,000. Attorney’s fees for the underlying medical malpractice case leading to Petitioner’s $10,000,000.00 settlement totaled $4,500,000.00, with costs of $490,486.33. While the formula under section 409.910(11)(f) determines amounts distributable to Medicaid after attorney’s fees and taxable costs, there is no language in section 409.910(17)(b) suggesting that attorney’s fees or costs should be subtracted from settlement proceeds in determining whether a lesser portion of the total recovery should be allocated to reimburse Medicaid. Costs and attorney’s fees are not an element of Petitioner’s damages and were not subtracted from the settlement proceeds in determining whether a lesser portion of the total recovery should be allocated to AHCA’s Medicaid lien. Considering the valuation of Petitioner’s claim at $35,000,000.00, Petitioner’s $10,000,000.00 settlement represents only a 10/35ths recovery of Petitioner’s damages. Multiplying that same 10/35 fraction to the $157,983.63 paid by AHCA through the Medicaid program for past medical expenses results in the proportional sum of $45,138.18 from the settlement proceeds available to satisfy AHCA’s Medicaid lien.
The Issue The issues for determination are whether Respondent violated Subsections 626.611(7) and 642.041(5), Florida Statutes (2004),1 as alleged in the Administrative Complaint, and, if so, what disciplinary actions should be imposed on her license as a health insurance agent and legal expense sales representative.
Findings Of Fact Respondent was and, at all times material hereto, has been licensed in Florida as a health insurance agent and a legal expense sales representative. Respondent’s license number with the Department is D037418. On or about August 16, 2005, Respondent was appointed as an agent with Amerigroup of Florida, Inc. (Amerigroup). In early February 2005, Susan Scott and Frank Barrs, her husband,2 had Medicaid coverage through the Staywell Medicaid Program. Later that month, Ms. Scott received a "Welcome Packet" from Amerigroup and enrollment cards which indicated that she had Medicaid coverage through Amerigroup. Ms. Scott then contacted the Medicaid Options Office and Amerigroup to advise both offices that she had not authorized that her Medicaid coverage be switched from Staywell to Amerigroup. Upon receiving the call from Ms. Scott, Amerigroup investigated the matter. Amerigroup's investigation concluded that Ms. Scott's Medicaid plan was switched from Staywell Medicaid plan to the Amerigroup Medicaid plan without her knowledge, consent, and/or approval. Ms. Scott was unaware of how the unauthorized switch of her Medicaid plan occurred. However, Ms. Scott recalled that sometime prior to the unauthorized switch, she was approached by an Amerigroup representative while she was at the Department of Children and Family Services office. That representative asked Ms. Scott if she had Medicaid coverage and about her insurance and her open enrollment period. Ms. Scott believed that these inquiries were made in an effort to persuade her to change her current Medicaid coverage. However, at that time, Ms. Scott told the representative four or five times that she was satisfied with her current Medicaid program. Subsequently, the representative, who had approached Ms. Scott at the Department of Children and Family Services office, showed up at her house without her permission. Ms. Scott identified this person as Herbert Stadler. It was soon after the person whom Ms. Scott identified as Mr. Stadler came to her house that Ms. Scott learned that her Medicaid insurance coverage had been switched from Staywell to Amerigroup without her prior knowledge, consent, or authorization. A transfer of coverage to Amerigroup required three steps: (1) a completed Appointment Sheet Form (Appointment Sheet), (2) an in-person presentation by an Amerigroup representative and completion of a pre-enrollment form, and (3) a call by the applicant to the Medicaid Options Office to advise that office of the applicant's decision or plan to change his/her Medicaid coverage. Amerigroup’s Appointment Sheet requires that the "applicant" listed on the Appointment Sheet indicate how the applicant's appointment with the Amerigroup representative was made. These options are whether the appointment was made in person or by the applicant's calling Amerigroup to request an appointment. The Appointment Sheet includes spaces for the applicant to list his/her name, address, and telephone number, to consent to have a representative of Amerigroup contact the applicant within the next 90 days or during the applicant's next enrollment period, and to give Amerigroup permission to view the eligibility of recipients listed on the Pre-Enrollment Application. Finally, the Appointment Sheet includes signature lines for the applicant's signature and the Amerigroup marketing representative's signature. An Amerigroup Appointment Sheet dated February 16, 2005, bears the signature of Anthony Nespeca, as the marketing representative, and also purports to bear the signature of Susan Scott. The Appointment Sheet lists Ms. Scott's address as 10625 Houston Avenue, in Hudson, Florida, in Pasco County, Florida. According to the Appointment Sheet, Ms. Scott consented to have an Amerigroup representative contact her. It is unknown who signed Ms. Scott's name on the Appointment Sheet referred to in paragraph 11, but clearly, Ms. Scott did not sign that form. Also, notwithstanding the indication on the Appointment Sheet to the contrary, Ms. Scott never made or requested an appointment with an Amerigroup representative--either in person or by telephone. Finally, the address listed on the Appointment Sheet as Ms. Scott's address was not her and/or her husband's address. On February 16, 2005, Ms. Scott's and her husband's correct address was an address on Gray Fox Lane in Port Richey, Florida. Amerigroup has a Pre-Enrollment Application form that provides space for information regarding the applicant, including the applicant's name and physical address. The Pre- Enrollment Application also provides a box that the applicant may check, indicating that "I understand the benefits as they have been explained to me and I wish to enroll with Amerigroup of Florida." Immediately below that statement is a line for the applicant's signature. The Pre-Enrollment Application also provides a space for the marketing representative's signature and a place for the marketing representative to print his or her name. Finally, the Pre-Enrollment Application has a space to indicate whether the applicant called the Medicaid Options Office to report the change in his/her Medicaid plan. The Pre-Enrollment Application, applicable in this case, lists Ms. Scott and her husband as the applicants, and includes a signature, dated February 17, 2005, purporting to be that of Ms. Scott. Notwithstanding the purported signature of Ms. Scott on the Pre-Enrollment Application, Ms. Scott did not sign that form. Moreover, the Pre-Enrollment Application, like the Appointment Sheet, incorrectly lists Ms. Scott's address as being in Hudson, Florida, when, in fact, her address was in Port Richey, Florida. Finally, even though the Pre-Enrollment Application indicates that Ms. Scott placed a telephone call to the Medicaid Options Office to change her Medicaid enrollment, she never made such a call. On the Pre-Enrollment Application, Respondent's signature is on the line designated for the marketing representative's signature. Next to Respondent's signature is February 17, 2005, which is one day after she was appointed an agent with Amerigroup; however, there is no evidence that Respondent wrote that date on the Pre-Enrollment Application. Below Respondent's signature is a space for the marketing representative to print his or her name. Printed in that space is the name, "Anthony Nespeca." Based on the information from the Appointment Sheet and Pre-Enrollment Application forms, Ms. Scott and her husband were entered into Amerigroup’s Florida sales tracking data base. This resulted in Ms. Scott and her husband being switched from the Staywell Medicaid plan to the Amerigroup Medicaid plan. Based on Amerigroup's practice, the representative or representatives whose names appeared on the Pre-Enrollment Applications were paid a commission for the new customer. When there were two names appearing on the Pre-Enrollment Form, as in this case, the commission was split between the two individuals. Here, because both Respondent's name and Anthony Nespeca's name appeared on the Pre-Enrollment Form, Amerigroup paid a commission to Respondent and Mr. Nespeca. The Amerigroup investigation found that the telephone call to the Medicaid Options Office for the enrollment of Ms. Scott was placed from Mr. Nespeca’s home telephone. The undisputed evidence in this proceeding is that Ms. Scott and her husband were switched from their Staywell Medicaid plan to the Amerigroup Medicaid plan, without their knowledge, consent, and/or authorization. Also, the undisputed evidence in this proceeding established that the call to Medicaid Options Office, purported to be from Ms. Scott, was made from Mr. Nespeca's home telephone. Mr. Nespeca was subsequently terminated from his job with Amerigroup and thereafter entered into an agreement with the Department of Financial Services for a consent order that resulted in a 12-month suspension of his license. It is undisputed that Respondent’s signature appeared on the Pre-Enrollment Application for Ms. Scott. However, there is no evidence that Respondent knew about or was in any way involved in the transaction which resulted in Ms. Scott's Medicaid plan being improperly switched. The credible testimony of Respondent is that an agent employed by Amerigroup often partners with another agent in the company to share commissions. Often these agents go together to visit potential clients, but there are times when they do not do so. Nonetheless, in order to share commissions, the names of both agents/representatives must be on the Pre-Enrollment form. To ensure that Respondent and Mr. Nespeca received the shared commissions, they exchanged pre-signed Pre-Enrollment Application forms, that were not filled out, as a mechanism of splitting commissions. The practice of agents sharing commissions was not uncommon or against Amerigroup policy. Furthermore, Amerigroup used the Pre-Enrollment Application forms to determine which agents/representatives should be paid commissions. Respondent was not involved in the telephone call to the Medicaid Options Office that was an important element in Ms. Scott’s insurance carriers being switched, and no evidence to the contrary was presented. Respondent has never met Ms. Scott and has never gone to her house. Respondent did not fill out the Pre-Enrollment Application, and the telephone call did not come from her house. Prior to the investigation conducted by Amerigroup, in which she was questioned and confronted about Ms. Scott's complaint, Respondent had no knowledge or involvement in the events which led to Ms. Scott's Medicaid plan being switched. Respondent's only involvement with the transaction involving Ms. Scott's Medicaid coverage being switched was that she and Mr. Nespeca split the commission. This action did not require or involve any action by Respondent. The mere fact that Respondent's signature was on the Pre-Enrollment Application form triggered the process that resulted in Amerigroup's paying the commission for that enrollment to Respondent and Mr. Nespeca. In her first year with Amerigroup, Respondent was the top producer and, except for this case, Respondent has never been accused of submitting a fraudulent claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of December, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of December, 2006.
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
The Issue By Administrative Complaint filed March 1, 1982, and amended on October 3, 1983, the Petitioner Department of Professional Regulation, Board of Opticianry, seeks to suspend, revoke or take other disciplinary action against the Respondent Steven Shulman for allegedly committing fraud, deceit, negligence, or misconduct in the authorized practice of opticianry.
Findings Of Fact At all material times, the Respondent Shulman was licensed as an optician by the Florida Board of Opticianry. On or about July 11, 1981, Patricia Pensky, the complainant, placed an order for contact lenses and regular prescription eyeglasses with the Respondent Shulman at his opticianry. Pensky paid $109 for the contact lenses and received a receipt for the same. Pensky did not pay for the regular glasses at that time. Approximately two weeks later on July 25, 1981, Pensky received the contact lenses and regular prescription glasses from the Respondent. Pensky paid $73.95 for the regular glasses and received a receipt in that amount from the Respondent Shulman. Although Pensky found the regular glasses to be satisfactory, she discovered that she could not wear the contact lenses. The contact lenses were returned to the Respondent approximately two weeks after their receipt by Pensky. The Respondent and Pensky agreed to a substitution of prescription sunglasses for the cost of the contact lenses minus $15-20. Pensky received the sunglasses in approximately seven to ten days and found them to be satisfactory. While Pensky was ordering and receiving the prescription sunglasses, she provided the Respondent with an insurance claim form and requested the Respondent to complete the same. The Respondent completed the form based on his understanding that Pensky was requesting reimbursement from her insurance company for the prescription sunglasses. The total for the prescription sunglasses was $94.95. Pensky however, believed that she had requested the Respondent to complete the insurance form based on the cost of her regular prescription glasses which totaled $73.95. Due to the misunderstanding between the parties, Pensky contacted her insurance company to see if she could claim a partial reimbursement since the cost on the insurance form completed by the Repondent exceeded the receipt which she had for her regular prescription glasses. When Pensky was informed that this was not possible, she did not file the form and received no reimbursement from her insurance policy for the services rendered by the Respondent. The Respondent would have received no financial benefit from filing a false insurance claim in this case since the disputed $15-$20 would have been paid by the insurance to Pensky and not the Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Petitioner dismissing the Administrative Complaint filed against the Respondent Shulman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 19th day of March, 1984. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1984. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Profissional Regulation 130 North Monroe Street Tallahassee, Florida 32301 David R. MacKenzie, Esquire Suite 209 5950 West Oakland Park Boulevard Lauderhill, Florida 33313 Fred Varn, Executive Director Florida Board of Opticianry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Frederick M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
