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
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the information filed against respondent be dismissed. Respectfully submitted and entered this 18th day of December, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttman, III Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Robert J. O'Toole Buckeye Building 208 Southeast Sixth Street Ft. Lauderdale, Florida 33301
