The Issue The issue in this case is whether the Respondent, Agency for Health Care Administration, is liable to Petitioner, Miriam Lara, M.D., for attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and, if so, the amount of attorney's fees and costs Petitioner should be awarded.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is the agency of the State of Florida responsible for the administration of the Federal government's Medicaid program in Florida. Section 409.907, Florida Statutes. One of the duties imposed upon states in order to participate in the Medicaid program is the duty to terminate any approved Medicaid provider where the provider has been "convicted" of certain types of crimes. See Social Security Act, Section 1128(a)(1), 42 U.S.C. Section 1230a-7. In particular, 42 U.S.C. Section 1230a-7(a)(1) requires the mandatory exclusion from the Medicaid program of any individual or entity that has been "convicted" of a program- related crime: Any individual or entity that has been convicted of a criminal offense related to the delivery of any item or service under subchapter XVII of this chapter or under any State health care program. For this purpose, the term "convicted" is defined to include "participation in a . . . deferred adjudication, or other agreement or program where judgement of conviction has been withheld." 42 U.S.C. Section 1230a-7(i)(4). Petitioner, Dr. Miriam Lara, is a licensed medical doctor and an approved Medicaid provider in the State of Florida. On January 20, 1998, Dr. Lara was indicted for "Organized Fraud and Medicaid Fraud." A copy of the Arrest Warrant, Respondent's Exhibit 9, was provided to the Agency shortly after Dr. Lara's arrest putting the Agency on notice of the charges against her. On or about November 30, 1998,1 Dr. Lara entered into a "Deferred Prosecution Agreement and Speedy Trial Waiver" (hereinafter referred to as the "DPA") which was filed in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County. Dr. Lara agreed, in part, to the following in the DPA: I, [sic] understand that I have been tentatively accepted as a participant in the Pretrial Diversion Program, and that the charges against me will not be prosecuted so as [sic] long as I am a program participant in good standing and that my case will not come to trail during that time. While it is clear from the DPA that the charges against Dr. Lara were not to be prosecuted so long as she participated in the program, the DPA does not specifically state that the charges would be dropped if she completed the program. Although the DPA is not specific, the Office of the Statewide Prosecution and Dr. Lara intended, when they entered into the DPA that the charges would be completely dropped if Dr. Lara completed the Pretrial Diversion Program. On April 20, 1999, after Dr. Lara successfully completed the pretrial program,2 the Office of Statewide Prosecution nolle prossed all charges pending against her. In early 1999 the Agency became aware that Dr. Lara had entered into and completed some type of "pretrial program." Ellen Williams, a Medicaid/Healthcare Program Analyst for the Agency, was notified that Dr. Lara had completed what Ms. Williams understood to be a "pretrial intervention program." The Agency, through Ms. Williams, also became aware of the disposition of Dr. Lara's case some time during 1999. Ms. Williams was provided with a copy of a disposition record for Dr. Lara's case from the Clerk of the Circuit and County Court of the Eleventh Judicial Circuit of Florida. That disposition record, Respondent's Exhibit 11, states that the charges against Dr. Lara had been "NOLLE PROS . . ." on April 20, 1999. The Agency, through Ms. Williams, believed that all pretrial programs involved a program through which an individual charged with a crime could, by participating in the program, avoid being adjudicated "guilty" of the charged offense. Because the information contained on the disposition record provided to Ms. Williams indicated that the charges had been nolle prossed and, this appeared to be inconsistent with the Agency's belief that all pretrial programs result in adjudication being withheld, Ms. Williams attempted to find out precisely what had happened to the criminal charges against Dr. Lara. Ms. Williams first telephoned and spoke with Assistant Attorney General Hugo Acebo, whom she understood to be an attorney, about the matter. Ms. Williams was told by Mr. Acebo that Dr. Lara had entered into some type of pretrial program and that she had successfully completed the program. Ms. Williams did not recall being told by Mr. Acebo that the charges against Dr. Lara had been dropped. Nor did she recall being told that any plea had been entered by Dr. Lara or adjudication on the charges had been withheld. Consistent with the Agency's belief about the nature of pretrial programs, Ms. Williams assumed that Dr. Lara, by successfully completing the pretrial program, had merely avoided being adjudicated guilty of the offenses for which she had been charged. Ms. Williams did not understand that the charges against Dr. Lara had been dropped. On October 12, 1999, a Case Closing Report on Miriam Lara, M.D. (hereinafter referred to as the "Closing Report"), Case No. 04-96-03-0016, was issued by the Office of the Attorney General, Medicaid Fraud Control Unit, Fort Lauderdale Bureau. In pertinent part, the Closing Report states the following: According to Assistant Attorney General Hugo Acebo, Dr. Lara entered into a pretrial intervention (PTI) program, which she successfully completed in April 1998. The charges against her were then dropped. . . . (Emphasis added). Ms. Williams received a copy of the Closing Report. The Agency, therefore, had actual notice that the charges against Dr. Lara had been dropped, but Ms. Williams continued to incorrectly believe that, because the Closing Report indicated that Dr. Lara had entered into a "pretrial intervention (PTI) program, which she successfully completed . . . " she had been "convicted" of a criminal offense that is Medicaid program- related, consistent with the Agency's incorrect understanding of pretrial programs. Marie del Carmen Calzone, Esquire, who represented Dr. Lara at the time, spoke to Ms. Williams at least three times after the charges against Dr. Lara had been dropped. Ms. Calzone explained to Ms. Williams that the charges had been nolle prossed or dropped, that Dr. Lara had not entered any adverse plea to the charges, that "adjudication had not been withheld," and that Dr. Lara had not, therefore, been "convicted." Ms. Williams, however, incorrectly insisted that, because Dr. Lara had engaged in a pretrial program and successfully completed it, she had been "convicted" as that term is defined for Medicaid purposes. Based upon Ms Williams' understanding of the Agency's interpretation of the pertinent law, Ms. Williams drafted a letter notifying Dr. Lara that her participation in the Florida Medicaid program was being terminated (hereinafter referred to as the "Termination Letter"). The Termination Letter indicates that the decision to terminate Dr. Lara's participation in the Medicaid program was based upon the following: The Agency for Health Care Administration has received information from the Attorney General, Office of Statewide Prosecution that indicates the following: You were indicted on January 20, 1998, for Organized Fraud and Medicaid Fraud. On November 20, 1998, you entered into a pretrial intervention program, which resulted in a nolle prosequi of the charges. The Social Security Act at section 1128(a)(1) provides for the mandatory exclusion from participation in the Medicaid program of any individual or entity convicted of a criminal offense that is program-related. Section 1128(I)(4) defines convicted to include "when the individual or entity has entered into participation in a first offender, deferred adjudication, or other arrangement or program where judgment of conviction has been withheld." Section 1902(p)(1) of the Social Security Act provides for state authority to take action to exclude providers from the Medicaid program for the reasons cited in section 1128. The Termination Letter was signed on or about April 13, 2001, almost two years after the charges against Dr. Lara had been nolle prossed. The Termination Letter was provided to Dr. Lara. Dr. Lara disputed the Agency's proposed action to terminate her participation in the Medicaid program and filed a Petition for Formal Hearing Pursuant to Section 120.569, Fla. Stat. (2001) and Petition for Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Petition for Formal Hearing"). The Petition for Formal Hearing was filed with the Division of Administrative Hearing on July 13, 2001. The matter was styled Miriam Lara, M.D. vs. Agency for Health Care Administration, and designated DOAH Case No. 01-2789. On September 18, 2001, realizing that Dr. Lara had not been "convicted" of any charges, the Agency filed a Notice of Withdrawal of Final Agency Action in the Underlying Case. Consequently, an Order Closing File was entered the same day, canceling the scheduled final hearing of the Underlying Case and closing the file of the Division of Administrative Hearings. As stipulated to by the parties, the Agency is an "agency" as defined in Section 57.111, Florida Statutes; the Agency initiated an administrative proceeding against Dr. Lara; the Agency was not a nominal party; and Dr. Lara, a "small business party" as defined in Section 57.111, Florida Statutes, was the "prevailing party" in the Underlying Case by virtue of the filing of the Notice of Withdrawal of Final Agency Action. The amount of reasonable attorney's fees incurred by Dr. Lara in the Underlying Case exceed $15,000.00. On November 26, 2001, Dr. Lara filed a Renewed Petition to Determine Amount of Attorney Fees and Costs Pursuant to Section 57.111, Fla. Stat. (2001) and Other Relief Under Fla. Stat. and F.A.C. (hereinafter referred to as the "Renewed Petition"). An Attorney Fee Affidavit has been attached to the Renewed Petition in which it is represented that attorney's fees in the amount of $18,279.50 were reasonably incurred in the Underlying Case, but also recognizing that fees and costs are capped at $15,000.00 under Section 59.111(4)(d)2., Florida Statutes. The Renewed Petition was designated Case No. 01-4669F. The pertinent information available to the Agency at the time it sent the Termination Letter to Dr. Lara included the following: Dr. Lara had been charged with criminal offenses that are program related in January 1998; Dr. Lara entered into a "Deferred Prosecution Agreement" in November 1998; Dr. Lara successfully completed the pretrial diversion program. At no time did she enter any plea to the charges and, therefore, there was no adjudication on the charges; and As a consequence of having completed the pretrial diversion program, all charges against her were dropped in 1999. All information necessary to determine that Dr. Lara had not been "convicted" of charges related to the Medicaid program was available to the Agency before action was taken to terminate her participation in the Medicaid program.
Findings Of Fact Respondent graduated from the University of Havana Medical School in 1951 and practiced medicine in Cuba from that time until he immigrated to the United States in 1960. In Cuba his practice was primarily in the fields of obstetrics and gynecology. In his application dated 9 February 1975 to take the Florida Medical Examination, Respondent listed work at Hudson County Hospital for Mental Diseases (New Jersey) in 1960, work for the American Plasma Company (Miami) from 1965 to 1968, work at the Opa Locka General Hospital from 1967 to 1970, and that he was presently working as assistant doctor at 620 Southwest 1st Street, Miami. Prior to commencing this work at the Southwest Medical Clinic he contacted Physicians's Association of Clinics, Hospitals and Annex (PACHA), an organization which helps Cuban doctors obtain Florida licenses, and was told he could work at the clinic under Dr. Tomas and should register with the Board of Medical Examiners. Respondent registered with the Florida State Board of Medical Examiners as an unlicensed physician in two undated registrations, copies of which were admitted into evidence as Exhibit 5. In the earlier registration he states he is not a naturalized citizen and in the later application he states he is a naturalized citizen, although the year of naturalization is not shown. Anne West, who was apparently running an abortion referral service, called the State's Attorneys office in Miami on behalf of Respondent and was told Respondent could work at the clinic under a licensed doctor. She subsequently became Mrs. Bulas. Respondent testified he commenced doing medical work in the Miami area in 1975 when he became associated with and worked under the supervision of Kamel Tomas, M.D. in a clinic located at 620 Southwest 1st Street, Miami. He subsequently worked at this clinic under the supervision of two other licensed doctors whose names are Hernandez and Martin. In 1976 Respondent successfully passed the Florida Medical Examination and was licensed in July 1976. While working at the clinic on Southwest 1st Street Respondent performed several abortions. In an 18-count Information filed 23 March 1978 (Exhibit 1) for the period 1 May 1975 through 5 March 1976 Respondent was charged with 11 counts of unlawful practice of medicine, 6 counts of larceny and one count of unlawful termination of pregnancy. At his trial and upon the advice of counsel he pleaded nolo contendere, was found guilty of 10 counts of unlawful practice of medicine, six counts of grand larceny and one count of unlawful termination of pregnancy, and Adjudication of Guilt was withheld (Exhibit 2). Most of these charges alleged felonies. In Exhibit 3 the court stayed imposition of sentence and placed Respondent on probation for 5 years with a condition of probation that he be confined in the Dade County Jail for a term of one year. From reading the counts of the Information, as well as from the testimony of Respondent, it is clear that the larcenies alleged resulted from the fees charged by the clinic to those patients treated by Respondent, which formed the bases for the unlawful practice of medicine counts. The information alleging unlawful termination of pregnancy was based upon the performance of an abortion by Respondent while not licensed in Florida. The testimony was unrebutted that numerous clinics in Miami employ Cuban doctors who are unlicensed in Florida. In a class conducted at Jackson Memorial Hospital to prepare former Cuban doctors for the Florida examination there were about 460 in the class attended by Respondent, most of whom worked in clinics in Miami. At the time Respondent worked at the clinic he believed that so long as he was under a licensed doctor the medical work he performed was lawful. However, Respondent was not under the direct supervision of the licensed doctor as each was working on a different patient in separate examining rooms at the same time. No evidence was presented to indicate Respondent was not fully qualified by training and experience to perform the medical practices that he performed prior to receipt of his Florida license.
The Issue The issues in this case are whether Respondent, Isaac Nosovsky, M.D., committed a violation of Chapter 458, Florida Statutes (2005), as alleged in the Administrative Complaint filed by Petitioner, the Department of Health, on July 18, 2006, in DOH Case Number 2006-07801, as amended; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Isaac Nosovsky, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 29814. Dr. Nosovsky’s address of record is 1865 North Corporate Lakes Blvd., Suite 2, Weston, Florida 33326. The Indictment and Conviction. On or about March 23, 2006, Respondent was indicted in the United States District Court, Southern District of Florida, Case No. 06-20178 CR, United States of America v. Isaac Nosovsky and Faustina Adela Gonzalez, on seven counts (hereinafter referred to as the "Indictment"): In Count 1, Dr. Nosovsky is charged with Conspiracy to Defraud the United States and to Commit Health Care Fraud. In particular, it is alleged that Dr. Nosovsky committed conspiracy against the United States Department of Health and Human Services in its administration and oversight of Medicare and against Medicare in connection with the delivery of any payment for health care benefits, items, and services, in violation of Title 18, U.S.C. Section 371. In Counts 2 through 7, Dr. Nosovsky is charged with Health Care Fraud. In particular, it is alleged that he committed Health Care Fraud against a health care benefit program affecting commerce, that is, Medicare, in violation of Title 18 U.S.C. Sections 1347 and 2, in connection with the delivery and payment for health care benefits, cost of therapies, treatments, and related items and services allegedly performed by the Nosovsky Clinic. Generally, the Indictment was predicated upon the allegation that, in or around August 2004, Dr. Nosovsky and his co-conspirator formed a clinic, the Nosovsky Clinic, which it then used to unlawfully enrichment themselves by "(a) submitting and causing the submission of false and fraudulent claims to Medicare; (b) paying kickbacks and bribes to Medicare beneficiaries so that they would serve as patients at the Nosovsky clinic, thereby furthering the billing fraud scheme; and concealing the submission of false and fraudulent claims to Medicare, the receipt and transfer of fraud proceeds, and the payment of kickbacks and bribes." The Indictment alleges the following facts regarding the Nosovsky Clinic: The medical clinic of ISAAC NOSOVSKY (hereinafter the "Nosovsky clinic") was located at 2250 Southwest 3rd Avenue, Suite 150, in Miami, Florida, and was in business from in or around November 2004 through in or around April 2005, when it closed. The Nosovsky clinic claimed to specialize in the treatment of patients diagnosed with Human Immunodeficiency Virus ("HIV"). HIV is a viral infection that attacks the patient’s immune system. The Nosovsky clinic purposed to provide intravenous infusion treatments, i.e., the insertion of a needle into a patient's vein, in order to administer certain specialized medications. The Nosovsky clinic also purposed to provide injections, i.e., the insertion of a syringe into the patient's arm, in order to administer certain specialized medications. ISAAC NOSOVSKY was a medical doctor licensed to practice medicine in the State of Florida pursuant to license number ME29814. NOSOVSKY was employed by the Nosovsky clinic and purported to treat patients there from in or around November 2004 through in or around April 2005. FAUSTINA ADELA GONZALEZ was employed as a medical assistant licensed to in the State of Florida pursuant to license number CNA121032. GONZALEZ WAS EMPLOYED BY THE Nosovsky clinic as a medical assistant and purported to treat patients there from in or around November 2004 through in or around April 2005. The Indictment alleges the following facts concerning the Medicare Program: The Medicare Program (Medicare") was a federal program that provided free or below- cost health care benefits to certain individuals, primarily the elderly, blind and disabled. The benefits available under Medicare are prescribed by statute and by federal regulations under auspices of the United States Department of Health and Human Services, through its agency, the Centers for Medicare and Medicaid Services ("CMS"). Individuals who receive benefits are referred to as beneficiaries. Medicare was a "health care benefit program," as defined by Title 18, United States Code, Section 24(b). Medicare Part B paid for a portion of the cost of certain necessary medical services and medications that were provided and ordered by physicians, clinics, and other qualified health care providers. Medicare Part B was administered in Florida by First Coast Service Options ("FCSO"), a company that contracted with CMS to receive, adjudicate, process, and pay certain Part B claims. Physicians, clinics, and other healthcare providers that provided services to Medicare beneficiaries were able to apply for and obtain a “provider number.” A health care provider who had been issued a provider number was able to file claims with Medicare to obtain reimbursement for services provided to beneficiaries. A Medicare claim was required to set forth, among other things, the beneficiary's name and Medicare identification number, the services that had been performed for the beneficiary, the date the services were provided, the cost of the services, and the name and identification number of the physician or other health care provider who had ordered the services. For Medicare billing purposes, medical services and medications provided to beneficiaries were identified by a Current Procedural Terminology ("CPT") code. For services purportedly rendered from in or around November 2004 through in or around May 2005, the Nosovsky clinic billed Medicare under a provider number assigned to ISAAC NOSOVSKY, 96542O. The indictment alleges that, having formed the Nosovsky Clinic and obtaining a Medicare provider number, Dr. Nosovsky used the Medicare system in his clinic to defraud the United States and commit Health Care Fraud in the following manner: Co-conspirators established the Nosovksy [sic] clinic, with ISAAC NOSOVSKY agreeing to serve as its medical director. ISAAC NOSOVSKY pre-signed numerous, blank health care-related documents including, but not limited to, "Infusion Therapy" sheets, progress notes, and Medicare superbills. FAUSTINA ADELA GONZALEZ failed to provide Medicare beneficiaries with prescribed medications. In some cases, GONZALEZ bandaged patients' arms to give the appearance that a treatment or therapy had been administered. FAUSTINA ADELA GONZALEZ falsely stated on the pre-signed "Infusion Therapy" sheets that she had provided Medicare beneficiaries with infusion therapy or treatments with specific dosages of medications. FAUSTINA ADELA GONZALEZ, among other co-conspirators, fabricated therapy notes and related documents stating that Medicare beneficiaries had received specific treatments, therapies, and dosages of medications, when, in fact, the beneficiaries had actually not received the treatments, therapies, and medications indicated on the therapy notes and documents. To conceal the fact that the Medicare beneficiaries were not receiving the treatments, therapy, and medications that were described in various documents and that were being utilized to bill Medicare, various co-conspirators and FAUSTINA ADELA GONZALEZ obtained fraudulent and/or falsified documents, including the pre- signed documents from ISAAC NOSOVSKY, and placed them in the patient files of the beneficiaries. To promote and further the billing fraud scheme, co-conspirators paid kickbacks and bribes to Medicare beneficiaries so that they would serve as patients. Co-conspirators submitted and caused the submission of numerous false and fraudulent claims to Medicare on behalf of the Nosovsky clinic, seeking reimbursement for the cost of infusions, injections, medications, and other items and services that were not provided, not provided as claimed, or not medically necessary. As a result of the submission of these claims, Medicare paid in excess of $1,300,000 into a bank account in the name of ISAAC NOSOVSKY and a co-conspirator. The Indictment names six patients that were involved in Dr. Nosovsky’s conspiracy to defraud Medicare; E.P., M.P, T.R., J.D., A.C., and J.M. The indictment alleges that Dr. Nosovsky and his co-conspirators used the following means to perpetrate the fraud with regard to Medicare Beneficiary E.P. These alleged facts are, except for dates and the specifics as to medication prescribed, the same for all the other five patients. On or about November 1, 2004, ISAAC NOSOVSKY signed a progress note falsely indicating that he had examined Medicare beneficiary E.P. and that the patient required 80 units of the medication acthar gel . . . . On or about November 1, 2004, FAUSTINA ADELA GONZALEZ prepared an "Infusion Therapy" sheet falsely indicating that GONZALEZ had administered 80 units of acthar gel to Medicare beneficiary E.P. On or about November 1, 2004, ISAAC NOSOVSKY signed a superbill falsely indicating that Medicare beneficiary E.P. had received 70 units of acthar gel. On or about November 1, 2004, a co- conspirator paid a cash kickback to Medicare beneficiary E.P. On or about December 8, 2004, a co- conspirator caused the submission of a false claim to Medicare on behalf of the Nosovsky clinic, seeking reimbursement for a dosage of acthar gel that supposedly had been provided to Medicare beneficiary E.P. on or about November 1, 2004. On or about March 30, 2006, Dr. Nosovsky was arraigned in the United States District Court, Southern District of Florida, on the Indictment and entered a plea of not guilty. On or about May 31, 2006, Respondent was found guilty by jury verdict of all seven counts of the Indictment. On August 14, 2006, United States District Judge Paul Huck adjudicated Dr. Nosovsky guilty of the criminal offense charged in the Indictment. Judge Huck sentenced Dr. Nosovsky to 60 months’ incarceration on Count 1, 65 months’ incarceration on Counts 2-7, to run concurrently; participation in a drug/alcohol treatment program while incarcerated; three years’ supervised probation; 200 hours of community service; and, restitution in the amount of $1,305.066. The Relationship of Dr. Nosovsky's Convictions to the Practice of Medicine. In light of the jury conviction on all counts of the Indictment, it is concluded that Dr. Nosovsky engaged in the activities alleged in the Indictment for purposes of this proceeding. All of those activities related to the practice of medicine. But for Dr. Nosovsky's license to practice medicine in Florida, Dr. Nosovsky would not have been able to commit the crimes for which he was committed. It was his license to practice medicine that facilitated his ability to open the Nosovsky Clinic, to obtain a Medicare provider number, and to fully participate in the Medicare program. All of the activities he engaged in, such as signing necessary Medicare documents and medical backup, were carried out in his capacity as a licensed Florida physician. Based upon the Affidavit of John P. Mahoney, M.D., which is found credible, the crimes for which Dr. Nosovsky was committed evidenced a lack of honesty, integrity, trustworthiness, good judgment, and sound morale character, all attributes expected of physicians licensed in Florida. The scope and severity of Dr. Nosovsky's conduct evidences a lack of these qualities. Prior Disciplinary Action. Dr. Nosovsky was previously disciplined by the Board of Medicine in Department of Business and Professional Regulation v. Isaac Nosovsky, M.D., DBPR Case No. 92-00411. In particular, Dr. Nosovsky was found to have violated Section 458.311(1)(m), Florida Statutes (failure to maintain medical records justifying a course of treatment), and Section 458.311(1)(t), Florida Statutes (the standard of care expected of physicians).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Isaac Nosovsky, M.D., has violated Section 458.331(1)(c), Florida Statutes, as described in this Recommended Order; and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 23rd day of March, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 23rd day of March, 2007. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz, Dutko & Kroll, P.A. 600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301-2802 April Dawn M. Skilling, Esquire Office of the General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Larry McPherson, Executive Director Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent's Florida license to practice medicine should be revoked for malpractice under section 458.331(1)(t), Florida Statutes (2006).
Findings Of Fact Respondent is licensed to practice medicine in Florida, holding license number ME 66823. He is a radiologist and is certified by the American Board of Orthopedic Radiology and Diagnostic Radiology. On June 17, 2004, the Board of Medicine (Board) disciplined Respondent's medical license by issuing a letter of concern, imposing a $15,000 fine, assessing $4,010.59 in costs, requiring eight hours of continuing medical education, and prohibiting him from treating or prescribing medication to members of his family. On or about October 4, 2006, while working at Drew Medical, Inc., Respondent performed a diagnostic procedure called an intravenous pyelogram (IVP) without tomograms for Patient G.P., who had complained of right-side pain and had a history of kidney stones. An IVP without tomograms is a series of time- lapse x-rays using a dye material to provide radiographically contrasting images to detect a stone in a kidney or ureter. The resulting x-ray images revealed a partial obstructing stone in the right-side kidney/ureter area, which Respondent detected and reported. One of the resulting x-ray images contained an anomaly having the classical appearance of an abdominal aortic aneurysm, including conspicuous tissue displacement and rim calcification. It had an elongated, water balloon-type appearance with calcifications on one of the walls. It was alarming or life- threatening in size, such that it could cause death by bleeding. Respondent did not mention the aneurysm in his report or recommend any further evaluation of the anomaly. Although he was tasked to look for kidney stones, Respondent's failure to report the aneurysm or recommend any further evaluation of the anomaly fell below the level of care, skill, and treatment that is recognized by reasonably prudent, similar physicians as being acceptable. Patient G.P. was admitted to Orlando Regional Hospital with a ruptured abdominal aortic aneurysm on October 6, 2006. Attempts were made to repair the rupture, but they were not successful. The patient died on October 12, 2006. By his conduct in disappearing without a trace, despite the diligent efforts of DOH to find him, and not participating in any manner in the hearing he requested to dispute the Administrative Complaint, Respondent effectively abandoned his license to practice medicine in Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of medical malpractice, revoking his medical license, and imposing a $10,000 administrative fine. DONE AND ENTERED this 25th day of July, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 25th day of July, 2012. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Robert Dean Marshall, M.D. Apartment 310 400 East Colonial Drive Orlando, Florida 32803 Robert Dean Marshall, M.D. 5987 Southwest Moore Street Palm City, Florida 34990 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Joy Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of November 1993.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Prior to the institution of this proceeding, Petitioner had undergone surgical sterilization through a procedure known as a vasectomy. Subsequent to the Petitioner having the vasectomy, Petitioner made a decision to have the procedure surgically reversed. At all times material to this proceeding, Petitioner was a member of the State of Florida Employees Group Health Self Insurance Plan (Plan). At some time prior to having the vasectomy surgically reversed the Petitioner obtained and reviewed the Brochure from the Plan (Petitioner's Exhibit 1). Page 1 of the Brochure advises the members of the Plan (members) that the Brochure is "not a contract since it does not include all of the provisions, definitions, benefits, exclusions, and limitations" of the Plan and that its purpose is to furnish members a summary of the benefits available under the Plan and provides a regular telephone number and a SunCom telephone number for the Office of State Employees Insurance (OSEI) in Tallahassee, Florida for the members to call if there are any questions. Page 4 of the Brochure contains a paragraph entitled "Benefit Inquiries" and provides a regular telephone number and a SunCom telephone number for members to call the OSEI on questions concerning benefits. Page 12 of the Brochure contains a paragraph entitled "Claims Inquiries" and provides a TOLL FREE WATS LINE number for the Jacksonville Office of Blue Cross and Blue Shield for members to use when calling that office on questions concerning claims or claims problems. OSEI interprets "Claims Inquiries" to mean inquiries concerning payment, nonpayment or timeliness of claims as distinguished from whether certain services are covered under the Plan which would be "Benefit Inquiry". Page 9 of the Brochure contains a paragraph entitled "Limitations and Exclusions" wherein surgery to reverse surgical sterilization is listed as one of those procedures that the Plan finds necessary to limit or exclude payment. Immediately above the paragraph entitled "Limitations and Exclusions" on page 9 the Brochure advises the member that exclusions and limitations are contained in the Benefit Document on file in the individual's personnel office and the OSEI in Tallahassee, Florida. The Benefit Document is defined on page 2 of the Brochure as the document containing "the provisions, benefits, definitions, exclusions and limitations of the" Plan. Section VII, EXCLUSIONS, subparagraph P. of the State Employees Group Health Insurance Benefit Document (Document) (Respondent's Exhibit 3) specifically excludes surgery to reverse surgical sterilization procedures from coverage under the Plan. The Department of Administration has been designated by the Florida Legislature as the State agency responsible for the administration of the Plan and to make the final determination as what benefits are covered under the Plan in accordance with the Document. There was no evidence presented to show that this responsibility had been delegated to Blue Cross and Blue Shield of Florida, Inc. (Administrator) who was selected by the competitive bid process to provide claims payment services, actuarial and printing services, and medical underwriting of late enrollee applications. Before having surgery to reverse surgical sterilization, the Petitioner contacted the Jacksonville Office of the Administrator and was advised by an unidentified person in that office that the Plan would cover the hospital costs for reverse surgical sterilization but would not cover the doctor's fee. The Petitioner did not at any time material to this proceeding contact the OSEI in Tallahassee or the local personnel office concerning the Plan's coverage of surgery to reverse surgical sterilization. Petitioner acted on the advice of the unidentified person in the Jacksonville Office of Blue Cross and Blue Shield, plus his reading of the Brochure, to come to the conclusion that there was a limitation on the benefits available under the Plan for surgery to reverse surgical sterilization rather than an exclusion of benefits for that procedure; the limitation being that the Plan would pay for hospital costs but not the doctor's fees. Prior to entering the hospital, the Petitioner's admission, being elective, was certified under the Plan's Preadmission Certification Program. However, the Petitioner was advised that the admission being certified did not mean that the services requested were covered under the Plan and that the services rendered would be subject to the limitations and exclusions listed in the Plan. On or about July 30, 1986, Petitioner was admitted to Fish Memorial Hospital where Dr. Youngman performed surgery to reverse surgical sterilization and was discharged on July 31, 1986. After surgery was performed, claims were made under the Plan and, the State of Florida, through the Administrator, made the following payments in connection with the surgery: (a) Fish Memorial Hospital - $935.10; (b) Southeast Volusia Radiology Associates - $19.10; (c) Clifford Chu, M.D. - $742.00 and; (d) Robert Charles Youngman, M.D. - 742.00 Although claims made by the different health care providers (providers) for the services rendered to the Petitioner indicated a diagnosis of Azoospermia which is defined as the absence of live spermatozoa in the semen, there was insufficient evidence to show that this diagnosis was the primary reason for payments being made in error to the providers by the Administra- tor for the services rendered in connection with Petitioner's surgery to reverse surgical sterilization. Subsequent to the health care providers being paid by the Administrator for services rendered to Petitioner under the Plan, the OSEI made a determination that none of the services rendered to the Petitioner to reverse surgical sterilization were covered under the Plan, and demanded reimbursement from the providers. All of the providers, with the exception of Dr. Youngman, reimbursed the Plan but, since the Petitioner had paid Dr. Youngman prior to the claim being made, the Petitioner had received Dr. Youngman's claim and subsequently reimbursed the Plan. Petitioner made a demand on the State to pay the providers since he had been informed by the Administrator that the services, at least the hospital costs, were covered under the Plan. Respondent, at Petitioner's request, reviewed its denial of coverage and determined that costs incurred for surgery to reverse surgical sterilization was not covered under the Plan. By letter dated September 25, 1987, received by Petitioner on October 1, 1987, Respondent advised Petitioner of that decision and of his right to a hearing should he desire one. Petitioner was also advised that he had twenty-one (21) days to file a petition and failure to timely comply would result in the action contemplated in the letter becoming final. A Petition For Formal Proceedings and Notice of Appearance was received by the Respondent on October 26, 1987 bearing a certificate of service dated October 23, 1987. The petition was mailed by Petitioner and received by the Respondent more than 21 days after receipt of the letter by the Petitioner on October 1, 1987. Respondent's ore tenus Motion For Remand Or, In The Alternative, To Dismiss The Petition citing Petitioner's failure to timely file his petition was filed at the hearing on May 12, 1988 some five and half (5 1/2) months after Respondent's receipt of the petition. Upon the Respondent determining that the Petitioner's surgery to reverse surgical sterilization was not covered under the Plan, Petitioner became responsible for all costs incurred for the surgery rather than just Dr. Youngman's fee which resulted in Petitioner being responsible for $3,057.70, in addition to Dr. Youngman's fee. Had the surgery been covered under the Plan, the Petitioner would have only been responsible for $91.90, plus Dr. Youngman's fee.
Recommendation HAVING considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Department of Administration enter a Final Order DENYING Petitioner payment for the costs incurred for the surgery to reverse surgical sterilization requested in his Petition for Formal Proceedings. RESPECTFULLY SUBMITTED and ENTERED this 20th day of July, 1988, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 20th day of July, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-1452 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Petitioner's Proposed Findings of Fact were submitted in unnumbered paragraphs but, for clarity, I have numbered them 1 through 18. The first two sentences of paragraph one are rejected as not being supported by substantial competent evidence in the record. Although an employee of the Administrator represented to Petitioner that the procedure was covered, there was no approval in that the Administrator did not have that authority. The last two sentences of paragraph one are adopted in Findings of Fact 15, 16, and 17. The first two sentences of paragraph 2 are adopted in Finding of Fact 19 but clarified. The last two sentences in paragraph two are adopted in Finding of Fact 20. Adopted in Finding of Fact 20 but clarified. (4-7) Rejected as immaterial to irrelevant except the last sentence of paragraph 7 which is adopted in Finding of Fact 11 but clarified to show the 800 number being provided under "Claims Inquiries". Adopted in Finding of Fact 11. Adopted in Finding of Fact 11 but clarified. Adopted in Findings of Fact 11 and 14 but clarified. Adopted in Finding of Fact 16. Rejected as immaterial or irrelevant. Adopted in Finding of Fact 18. Adopted in Finding of Fact 24 but clarified. Rejected as not supported by substantial competent evidence in the record. Adopted in Findings of Fact 9 and 13 but clarified. The first sentence of paragraph 17 is adopted in Finding of Fact 8 and although there is a difference in the meaning of "limitations" and "exclusions", there was no substantial competent evidence in the record that the Brochure and Document were inconsistent in this regard, therefore the last sentence is rejected. Rejected as a restatement of a witness' testimony and not a finding of fact but additionally, rejected as not being supported by substantial competent evidence in the record. Specific Rulings on Proposed Findings of Fact Submitted by Respondent (1-6) Adopted in Findings of Fact 1 through 6, respectively. (7-8) Adopted in Finding of Fact 8. (9-10) Adopted in Finding of Fact 7. (11-14) Adopted in Findings of Fact 15, 12, 11 and 13, respectively. (15-16) Adopted in Finding of Fact 17. (17) Rejected as not supported by substantial competent evidence in the record. See Finding of Fact 17. (18-19) Adopted in Findings of Fact 18 and 19, respectively. (20) Rejected as a restatement of a witness' testimony and not a Finding of Fact. Also, it would be rejected as not being supported by substantial competent evidence in the record. (21-22) Adopted in Finding of Fact 20. (23) Adopted in Finding of Fact 21. (24-25) Adopted in Finding of Fact 22. (26-28) Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rejected as a conclusion of law. COPIES FURNISHED: William A. Frieder, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Lester A. Lewis, Esquire P. O. Drawer 9670 Daytona Beach, Florida 32020 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At all times material hereto, Dr. Esteban Valdes-Castillo, a Board- certified psychiatrist, was the Medical Director of Progressive Health Center, Inc. Blanche Lear, a psychiatric social worker, was an employee of the Center. Between 1978 and August, 1981, Petitioner paid Respondent $45,627.16 in Medicaid payments for counseling ser- vices rendered by Blanche Lear. A two-way mirror was located in the common wall between Lear's and Valdes-Castillo's offices. Of the Medicaid recipients counseled by Lear, Valdes-Castillo did not meet, interview, counsel or even observe all of the patients for whom payments were made to the Center by Petitioner. Further, Valdes-Castillo only observed Lear's coun- seling sessions approximately once a month over the time period involved and then only upon the specific request of Lear to observe a specific patient for a specific reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Petitioner directing Respondent Progressive Health Center, Inc., to reimburse to Petitioner the amount of $45,627.16. DONE and RECOMMENDED this 14th day of March, 1983, in Tallahassee, Leon County, 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 14th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 J. Michael Sara, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
