The Issue The Board filed a ten count complaint in this matter. The central issue is whether Dr. Horstmann billed Medicaid for office visits for children who he did not see and who, in fact, did not exist. The Board of Medicine contends that Dr. Horstmann's conduct violated Section 458.331(1)(i), Florida Statutes, by making or filing a report the licensee knew to be false, violated Sections 817.234 and 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician, and that his conduct violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when that trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. The Board also contends that by pleading no contest to a criminal charge of Medicaid fraud, Dr. Horstmann is subject to discipline.
Findings Of Fact Dr. Horstmann is a 63 year old Cuban-born medical doctor. He had been licensed to practice medicine and had been doing so in Cuba for 35 years. He was permitted to leave Cuba in 1979. He was licensed to practice medicine in the State of Florida on February 14, 1983. At the time of the investigation which gave rise to these charges he had been licensed to practice medicine in Florida for 4 months. In early 1983, the Auditor General's Office of the State of Florida, Medicaid Fraud Unit, investigated certain pharmacists which computer audits showed to have excessive Medicaid charges. Dr. Horstmann was not a target of this investigation, which was headed by Detective John Nulty. The Mariano Gonzalez pharmacy was targeted. Dr. Horstmann knew Mariano Gonzalez since childhood. He had given Gonzalez business cards, asking Gonzalez to refer patients to him with allergy- related problems who did not have a doctor, as Dr. Horstmann wished to concentrate on allergy-related health problems. Those business cards were available at the pharmacy. During the investigation of the Mariano Gonzalez pharmacy, agent Vivian Perez entered the pharmacy and acted as a Medicaid recipient using the name Vivian Toledo. At the Mariano Gonzalez pharmacy on June 5, 1983, she was advised to see Dr. Horstmann and was given a Horstmann business card with the pharmacy stamp on the back of it. Apparently, the Mariano Gonzalez pharmacy was engaged in a scheme to defraud Medicaid. It allowed Medicaid recipients to present scripts for prescriptions which were to be paid by Medicaid, and to purchase merchandise rather than prescription drugs or medicine for an amount equal to what would have been charged for the medication. In the course of her investigation, agent Perez went to Dr. Horstmann's office on June 7, 1983. She presented Dr. Horstmann's secretary with a Medicaid card issued to her as part of the investigation bearing the name Vivian Toledo, and the names of the three fictitious children, Julio, Roger and Rafael Toledo. Dr. Horstmann did not examine agent Perez or any of the fictitious children, but as a result of the visit he gave agent Perez prescriptions for her and the three children. Agent Perez took these prescriptions to the Mariano Gonzalez pharmacy and used them to purchase non-pharmaceutical items. These prescriptions were not signed by Dr. Horstmann, but by Dr. Rodriguez-Cuellar, with whom Dr. Horstmann worked. Dr. Horstmann did not sign the prescriptions because, although he was a licensed physician, he had not yet received a Medicaid provider number of his own. Agent Perez again visited Dr. Horstmann on July 12, 1983. He did not examine her or the fictitious children but gave agent Perez additional prescriptions for herself and the children, which he signed. They were used to purchase non- pharmaceutical items at the Mariano Gonzalez pharmacy. Agent Perez visited Dr. Horstmann on a second occasion in July and in August 1983. Each time she received prescriptions for herself and the fictitious children which were used to purchase non-pharmaceutical items at the Mariano Gonzalez pharmacy. Dr. Horstmann prepared medical charts for each of the fictitious children, which were introduced into evidence, indicating that these children had been examined by him. Dr. Horstmann signed the Medicaid health insurance claim forms for the children dated July 9, 12, 20 and 27; and August 17 and 23. Medicaid was billed a total of $100.00 for Julio Toledo, $70.00 for Roger Toledo and $90.00 Rafael Toledo based on these forms. Dr. Horstmann understood when he wrote on the chart that he had seen the children that a bill would be prepared and sent to Medicaid. He signed all of the reimbursement forms. He received payment from Medicaid on the claims he submitted. Dr. Horstmann was charged with Medicaid fraud and entered a plea of no contest. A certified copy of the order placing him on probation was offered for identification but not received in evidence. After the certified copy of the probation order was obtained, an order was entered by the Circuit Court for the 11th Judicial Circuit sealing the records of Dr. Horstmann's conviction.
Recommendation Based upon the violations of the Medical Practice Act which Dr. Horstmann committed, including filing false Medicaid reports and billing Medicaid for treating fictitious children, as well as making deceptive, untrue and fraudulent representations in the practice of medicine, it is RECOMMENDED: That Dr. Horstmann's license be suspended for a period of six (6) months. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1753 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner (Treating the paragraphs of the findings of fact as if they had been serially numbered.) Covered in Findings of Fact 2 and 4. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 11 and 12. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 3. Sentence 2 covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary. Sentence 1 covered in Finding of Fact 5. Sentences 2 and 3 rejected as unnecessary. Covered in Finding of Fact 6. Rejected as unnecessary Covered in Finding of Fact 1. Covered in Finding of Fact 4. Generally rejected as a recitation of testimony rather than findings of fact. Rejected because whether Dr. Horstmann was familiar with Medicaid procedures is not relevant. It is clear that he understood that he submitted bills for visits which never occurred. Rejected because Dr. Horstmann's beliefs as to agent Perez' financial condition in no way justifies submitting fraudulent medicaid reimbursement requests. Covered in Finding of Fact 11. Rejected because I accepted the testimony of agent Perez that she did not provide the symptoms to Dr. Horstmann that are found in the charts for the fictitious children. Accepted in the Conclusions of Law because there was no evidence concerning bills submitted by Dr. Rodriguez- Cuellar being reimbursed by Medicaid. Covered in Finding of Fact 9. Covered in Finding of Fact 11. Covered in Finding of Fact 12. The amount received was greater than $45.00. To the extent necessary, covered in Finding of Fact 10. Covered in Findings of Fact 10 and 11. Rejected because I find that Dr. Horstmann knew that he was billing Medicare for visits which never occurred. This was not merely the result of an error by a receptionist. Rejected as irrelevant. Covered in Finding of Fact 12. Rejected as a recitation of testimony, not a finding of fact. COPIES FURNISHED: Joel S. Fass, Esquire COLODNY, FASS & TALENFELO, P.A. 626 N.W. 124th Street North Miami, Florida 33161 John W. Thornton, Jr., Esquire THORNTON & ROTHMAN, P.A. 2860 Southeast Financial Center Miami, Florida 33131 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
