The Issue Whether Respondent failed to remit premiums or submit applications for insurance; misappropriated and converted funds for her own use and benefit or unlawfully withheld monies belonging to insureds as set forth in the Administrative Complaint filed herein signed August 2, 1993.
Findings Of Fact Respondent, Margaret Ann Edwards, is currently eligible for licensure and is licensed in Florida as a health insurance agent, and was so licensed at all times relevant to these proceedings. During times material, Respondent served as a general agent for LHCA. Respondent operated through a corporate entity known as Chartered Financial Advisors, Inc., which served as a clearing house for insurance agents. Insurance agents who operate as general agents are well versed in operating an insurance agency. On or about March 4, 1991, LHCA and Respondent entered into an agency agreement whereby Respondent agreed to solicit insurance products on behalf of LHCA. The agreement provided in relevant part: (2) ACCOUNTING All monies received for the Company by the General Agent for premiums, by reason of this Agreement, shall belong to the Company and shall be received and held by the General Agent in a fiduciary capacity only. The initial premiums shall be forthwith paid and delivered to Chartered Financial Advisors, Inc. All other premiums shall be forthwith paid and delivered to the Company. (5) INDEBTEDNESS If the Company, for any reason, refunds the premium on any Authorized Policy solicited by the General Agent, Representatives or employees, the General Agent shall refund to the Company any monies received by the General Agent, Representatives or employees by reason of the payment of such premiums. To the extent not refunded, said amount shall constitute an indebtedness by the General Agent to the Company. Prior to its agreement with LHCA, Respondent had been involved in the insurance business for an extended period of time and was familiar with the duties and obligations of a general agent. General agents who have good credit histories are granted "netting" authority. Netting authority is a procedure whereby the agent is given the authority to receive gross premiums from applicants for insurance and to withhold their net "commissions" from the gross premiums and remit the balance, or net premiums, to the company (LHCA). Respondent maintained a business bank account with Barnett Bank, and she was the sole signator on that account. The account was used to conduct her insurance business and to implement the netting authority arrangement that she had with LHCA. During August, 1992, LHCA became increasingly concerned about Respondent's failure to timely remit premiums due to LHCA on policies issued by the company, as well as premium refunds not being made by the Respondent to insurance consumers. LHCA made Respondent aware of these concerns by telephonic messages and by written communiques. LHCA's concerns about Respondent were not resolved and during January, 1993, LHCA terminated its agency agreement with Respondent. After termination of the agency agreement, LHCA was contacted by insurance consumers, Austin Jenkins, Bernice Caldwell, Mrs. Robert Bolling, and Robert Stopford about either policies that they had applied for and had never received or about policies which they were desirous of cancelling and/or obtaining a refund. LHCA demanded an explanation from Respondent about the complaints from the referenced consumers. Respondent thereafter sent a check to LHCA in the amount of $9,841.02 which Respondent represented as being owed to LHCA for the premium payments for insurance applications previously solicited and sold to the consumers. Respondent's check, which represented the refund of net premiums which was due and owing to LHCA, did not clear the bank and was returned for insufficient funds. Jonathan Miller of LHCA contacted the Respondent and attempted to amicably resolve the matter. Respondent advised Miller to redeposit the check as the funds were now in her account. Miller followed Respondent's directive and the check failed to clear the bank the second time due to insufficient funds. Miller did not authorize Respondent to cover refunds by using net commissions which were owed to LHCA. During this period, LHCA began receiving numerous inquiries from additional insurance consumers about the status of health insurance policies purchased through Respondent or her subagents, but for which the company had no record and had received no net premiums. The number of policies involved was approximately twelve. LHCA conducted an investigation and instructed the inquiring consumers to provide, among other things, proof of payment and other pertinent evidence to substantiate their claims. As a result, LHCA refunded premium payments to each individual consumer, including consumers Jenkins, Caldwell, Bolling, and Stopford. Austin Jenkins made application for insurance to be issued by LHCA through a subagent of Respondent and tendered a check in the amount of $3,868.00 made payable to LHCA. This check was deposited into Respondent's business account maintained at Barnett Bank. Bernice Caldwell, another consumer, also made application for insurance to be issued by LHCA through a subagent under contract with Respondent, and tendered a check in the amount of $7,072.00 made payable to LHCA. The check was deposited into Respondent's business account with Barnett Bank. Robert Bolling made application for insurance to be issued by LHCA of America, through a subagent under contract with Respondent, and tendered two checks in the amounts of $3,195.68 and $2,525.20, respectively, made payable to LHCA. These two checks were deposited into Respondent's business bank account maintained at Barnett Bank. Robert Stopford made application for insurance to be issued by LHCA through a subagent under contract with Respondent, and tendered a check in the amount of $3,996.20 made payable to LHCA. This check was also deposited into the business bank account maintained by Respondent at Barnett Bank. All of the above mentioned checks were negotiated and cleared their respective banks. The funds were thereafter transferred and credited to Respondent's business bank account maintained at Barnett. Insurance consumers Jenkins, Caldwell, Bolling, and Stopford intended their checks to be the initial premium for insurance policies which they applied for with LHCA. LHCA never received any applications for insurance or premium payments from Respondent on behalf of the above named consumers. The premium refunds made by LHCA to insurance consumers, Jenkins, Caldwell, Bolling, and Stopford were reflected on Respondent's account current statements with LHCA. As of December 31, 1993, Respondent owed LHCA the sum of $53,227.65. This sum represented premiums received by Respondent for insurance policies, but which remained unremitted to LHCA. LHCA has demanded payment from Respondent for the above refunds without success. In an attempt to recover its funds paid on behalf of Respondent, LHCA filed a civil suit in Sarasota County Circuit Court, Case No. 93-003262-CI-018. On March 9, 1994, a Summary Final Judgement was entered in the circuit court case filed against Respondent in the amount of $53,225.43. As of the date of hearing, the judgment remains unsatisfied. Respondent was involved in an automobile accident during April, 1992. The accident was the source of injuries to Respondent and limited her ability to actively engage in the operation of her agency. Under the subagency agreement Respondent utilized to hire subagents, Respondent kept approximately fifty-three percent (53 percent) of the net commission and she paid her agents amounts ranging from forty-seven percent (47 percent) up to, and in some cases, sixty percent (60 percent) of the net commissions that she received. When policies were cancelled and the subagents refused to return the premiums which they had been advanced, Respondent found herself financially unable to remit the payments either to the insureds or to LHCA as demanded. Respondent contends that Miller advised her to pay refunds from other net commissions due LHCA. As noted, Miller denies making any agreement with Respondent to use LHCA's net funds. Respondent's contention that she was told by LHCA's representative, Jonathan Miller, to deduct company net premiums from other policies to pay for refunds that were due to other consumers is not credible. In this regard, the agency agreement between Respondent and LHCA provides the procedure whereby LHCA was entitled to a refund from any premiums advanced on behalf of any authorized policies solicited by any general agent, as Respondent, or Respondent's representatives or employees. This procedure is set forth in subparagraph 5 of the agency agreement in effect between Respondent and LHCA. Additionally, the accounting procedures section of the agreement between Respondent and LHCA clearly states that all monies received for the company, as LHCA, by the general agent (Respondent) for premiums, by reason of their agreement, belong to LHCA and shall be received and held by the general agent in a fiduciary capacity only. Given these clear provisos in the agreement between the parties, Respondent's contention that she had entered into other oral agreements with LHCA for return of the premiums does not withstand scrutiny and is not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent's licenses and eligibility for licenses be suspended for nine (9) months, pursuant to Rule 4-231.080, Florida Administrative Code. It is further RECOMMENDED that: Petitioner enter a Final Order requiring that Respondent make satisfactory restitution to Life and Health Insurance Company of America prior to any request for reinstatement of her insurance licenses as authorized pursuant to s. 626.641, Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of October, 1994. JAMES E. BRADWELL 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 18th day of October, 1994. APPENDIX to RECOMMENDED ORDER IN CASE NO. 93-5080 Rulings on Petitioner's proposed findings of fact: Paragraph 20, adopted as modified, paragraph 18, Recommended Order. Paragraph 23, adopted as relevant, paragraphs 22 and 23, Recommended Order. Paragraph 23, adopted as relevant, paragraphs 18 and 22, Recommended Order. Paragraph 24, rejected, legal argument and/or conclusionary. Rulings on Respondent's proposed findings of fact: Paragraph 1, adopted as relevant, paragraph 10-13, Recommended Order. Paragraph 6, adopted as modified, paragraph 3, Recommended Order. Paragraph 9, rejected, as a restatement of testimony. Paragraph 10, adopted as modified, paragraphs 1 and 3, Recommended Order. Paragraph 14, rejected, irrelevant and not probative. Paragraphs 16 and 18, rejected, contrary to the greater weight of evidence, paragraphs 8 and 23, Recommended Order. Paragraph 19, rejected, irrelevant and unnecessary. Paragraphs 21-26, rejected, contrary to the greater weight of evidence, paragraphs 2,5,7, and 23, Recommended Order. Paragraphs 27 and 28, adopted as relevant, paragraphs 19 and 20, Recommended Order. COPIES FURNISHED: James A. Bossart, Esquire Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 John L. Maloney, Esquire 5335 66th Street North, Suite 4 St. Petersburg, Florida 33709 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact The Respondent, Jack P. Randall, is a chiropractic physician licensed to practice in the State of Florida. He holds license number 2770. On August 8, 1978, a federal grand jury filed an indictment in the United States District Court for the Northern District of Alabama, charging the Respondent with 29 counts of willfully making a false, fictitious and fraudulent statement and representation as to material facts in a matter within the jurisdiction of the United States Department of Health, Education and Welfare, Health Care Financing Administration (formerly Social Security Administration) in violation of 18 U.S.C. 1001 which states: "Whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme of device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years or both." This indictment asserts that on 29 occasions between December, 1976, and January, 1978, the Respondent requested payment from the United States for chiropractic services performed on patients when such services were not actually performed. On October 25, 1978, in the United States District Court for the Northern District of Alabama, the Respondent was convicted of 24 of the 29 counts in the indictment, and sentenced to imprisonment for a period of one year, and fined the sum of $5,000, to be followed by a suspended sentence of four years during which time the Respondent would be placed on probation. Each of the 24 counts upon which the Respondent was convicted directly relates to the practice of chiropractic. Thereafter, the Respondent appealed his conviction to the United States Court of Appeals for the Fifth Circuit. By its opinion filed on April 19, 1979, the verdict and judgment against the Respondent was affirmed. Certified copies of the indictment, the verdict and judgment, and the appellate opinion were received in evidence in support of the Administrative Complaint. In his defense, the Respondent asserted that the representation he received from his attorney was ineffective, and that the trial court would not let him employ another attorney. However, these matters are collateral to the issues presented in this proceeding. If they consist of a remedy, the Respondent must pursue it in court and not here.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 2770 held by the Respondent, Jack P. Randall, be revoked. THIS RECOMMENDED ORDER entered on this 15th day of May, 1981. COPIES FURNISHED: Tina Hipple, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack P. Randall 3244 Seminole Avenue Macon, Georgia 31204 WILLIAM B. THOMAS 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 15th day of May,1981
Findings Of Fact Provider received the correspondence giving notice of Provider’s right to an administrative hearing regarding the improper Medicaid reimbursement. Provider filed a petition requesting an administrative hearing, and then caused that petition to be withdrawn and the administrative hearing case to be closed. Provider chose not to dispute the facts set forth in the letter dated August 1, 2011. The facts alleged in the letter are hereby deemed admitted, including the total improper reimbursement amount of twelve thousand, one hundred sixty-four dollars ($12,164.00). The Agency hereby adopts the facts as set forth in the letter, including the improper reimbursement amount of twelve thousand, one hundred sixty-four dollars ($12,164.00). CONCLUSIONS OF LAW. The Agency incorporates and adopts each and every relevant statement and conclusion of law set forth in the August 1, 2011, letter. The admitted facts support the legal conclusion that the improper reimbursement in the amount of twelve thousand, one hundred sixty-four dollars ($12,164.00) was appropriate. As partial payment has previously been made, five thousand, eight hundred sixty-four dollars ($5,864.00) is now due and owing from Provider to the Agency. Based on the foregoing it is ORDERD AND ADJUDGED that Provider remit, forthwith, the amount of five thousand, eight hundred sixty-four dollars ($5,864). Provider’s request for an administrative hearing is hereby dismissed. DONE and ORDERED on this the We day of fojtimla__. 2012, in Tallahassee, Florida. and Mf SECRETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Rachic’ Wilson, Esquire Agency for Health Care Administration (Interoffice Mail) Roberto E. Moran, Esq. Rasco, Klock, Reininger, et al 283 Catalonia Avenue Second Floor Coral Gables, Florida 33134 (U.S. Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Chief, Medicaid Program Integrity Finance and Accounting HOA Agency for Persons with Disabilities (Facility) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the Ainot Sek W12. = —az, Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Conclusions THIS CAUSE came before me for issuance of a Final Order on an August 1, 2011, letter from the Agency for Health Care Administration (“Agency”) to Bay Point Schools, Inc. (“Provider”) notifying Provider that it had been improperly reimbursed twelve thousand, one hundred sixty-four dollars ($12,264.00) by Medicaid. The August 1, 2011, letter indicated that partial payment had already been remitted by Provider and that five thousand, eight hundred sixty-four dollars ($5,864.00) remained due and owing from Provider to the Agency. The August 1, 2011, letter provided full disclosure and notice to Provider of procedures for requesting an administrative hearing to contest the allegations made in the letter. Provider filed a petition with the Agency requesting a formal administrative hearing on September 6, 2011. The Agency forwarded Provider’s hearing request to the Division of Administrative Hearings (“DOAH”) for a formal administrative hearing. On March 9, 2012, Provider filed a Motion to Withdraw Petition for Formal Hearing. DOAH issued an Order Filed September 6, 2012 1:46 PM Division of Administrative Hearings Closing File and Relinquishing Jurisdiction on March 12, 2012, closing the above-styled cause and relinquishing jurisdiction back to the Agency.
