The Issue The issue in the case is whether the allegations of the Administrative Complaint filed by the Petitioner are correct and, if so, what penalty should be imposed against the Respondent.
Findings Of Fact Beginning on October 3, 1995, and at all times material to this case, the Respondent has been licensed as a medical doctor in the State of Florida, holding license number ME 69324. At all times material to this case, the Respondent was also a licensed medical doctor in Minnesota. From 1984 to 1998, the Respondent was employed as a professor at the University of Minnesota (University). As a University professor, the Respondent was involved in chemical dependency research and participated in human research projects intended to treat drug addictions. Beginning in June 1993, the Respondent conducted a study wherein Gamma-Hydroxybutrate (GHB) was provided to human test participants. The Respondent was the principal investigator in the study. He personally applied to and received permission from the U.S. Food and Drug Administration (FDA) to conduct the study. The human participants in the 1993 GHB study were primarily a group of Southeast Asians known as "Nmong" who exhibit high rates of opium addiction. The purpose of the study was to determine whether GHB could be beneficial in detoxification from opium addiction. As the principal investigator, the Respondent was responsible for planning and implementation of the study. Obtaining the "informed consent" of study participants was a requirement of the University's standard protocol, and is a standard requirement for any human research project The informed consent documentation used in the Respondent's GHB study consisted of five English-text pages. The participants in the GHB study were essentially unable to speak or read English. The Respondent assumed that the University hospital, where the study was conducted, would obtain the appropriate informed consent from participants. By the time the GHB study began, informed consent had not been obtained from all the human test subjects. The University apparently became aware of the informed consent issue, and asked the Respondent on August 4, 1993 to discontinue the test. The Respondent terminated the test on August 5, 1993. After the test was terminated, the University reviewed the test's procedures and determined that in addition to the informed consent issue, test administrators had failed in some cases to follow dosing protocol limits, and had also failed to provide a substitute drug (methadone) to study participants who sought the substitution. Based on the improper implementation of the study, the University took disciplinary action against the Respondent including a reprimand, restrictions against conducting research involving university hospital patients, and imposition of a two- year monitoring period of the Respondent's clinical performance. Based on the University action, the Minnesota Board of Medical Practice reviewed the situation. The Board is the licensing authority for physicians in the State of Minnesota. By Order dated May 9, 1998, the Respondent entered into a stipulation and order with the Minnesota Board of Medical Practice. The stipulation and order required as follows: provide proof of compliance with requirements imposed by the University of Minnesota; notify the Minnesota Board of Medical Practice if Respondent participated in human research studies for a period of two (2) years; c. obtain a supervising physician, meet with the supervising physician monthly, and provide the supervising physician with information pertaining to Respondent's clinical practice outside the scope of his teaching responsibilities; d) meet with a designated member of the Minnesota Board of Medical Practice quarterly to review Respondent's progress under the terms of the order; and c) pay a civil penalty in the amount of $3,500. Although the Respondent did not have a private clinical practice in Minnesota, he had a limited number of clinical patients at a VA hospital in Minnesota who were outside his teaching responsibilities. In accordance with the terms of the settlement and order, the Respondent obtained a supervising physician who apparently oversaw the clinical practice. In September 1998, the Respondent moved to Florida and began a private clinical practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner enter a final order imposing a suspension of the Respondent's Florida licensure until the Respondent's Minnesota license is unencumbered. DONE AND ENTERED this 20th day of July, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 20th day of July, 2000. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way BIN C01 Tallahassee, Florida 32399-3251 Kristy M. Johnson, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald W. Weidner, Esquire G. Thomas Bowden, II, Esquire Donald W. Weidner, P.A. 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246
The Issue Should discipline be imposed against Respondent's license to practice chiropractic medicine for violation of Sections 456.072(1)(c) and (m) and 460.413(1)(k), Florida Statutes (2003)?
Findings Of Fact Facts Established by Admission Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes. Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Chapters 456 and 460, Florida Statutes. Respondent is and has been at all times material hereto a licensed chiropractic physician in the State of Florida, having been issued license number CH 4899. On or about September 30, 2003, an Information was filed in the United States District Court for the Middle District of Florida in Case No. 03-CR-314-J-25MMH, charging Respondent with conspiracy to defraud a health beneficiary program and to obtain by means of false and fraudulent pretenses and representations the money of a health beneficiary program in violation of 18 U.S.C. § 1347 and 2. Respondent was vice-president of Jacksonville Health Care Systems (JCHS) during all relevant times of the alleged criminal conspiracy. JCHS operated as a medical clinic offering and supplying chiropractic and medical services to patients. Respondent caused or allowed claims to be filed with Medicare and other health care benefit programs claiming reimbursement for the professional component of Magnetic Resonance Imaging tests (MRI). For Diagnostic Ultrasound (DU) and Nerve Conduction Velocity (NCV) billing, Respondent submitted claims for the technical portion of an DU or NCV test, which is the performance of the test, even though Respondent did not contribute his professional expertise to the performance of the test. After tests were completed Respondent would submit (some) claims to be filed by JHCS to various health care benefit programs for the technical component of the DU and NCV tests. Facts Admitted In The Prehearing Stipulation Respondent is and has been at all times material hereto a licensed chiropractic physician in the State of Florida, having been issued license number CH 0004899 on September 5, 1989. Respondent's last known address if Post Office Box 600435, Jacksonville, Florida 32260. Respondent admits that United States District Judge Henry Adams accepted a plea of guilty entered by Charles Doll. Respondent had the title of vice-president of Jacksonville Health Care Systems; however, he did not own JHCS during all relevant times. Respondent caused or allowed claims to be filed by JHCS with Medicare and other health care benefit programs claiming reimbursement of the professional component of MRI tests. The MRIs were read and interpreted by a qualified radiologist, who was paid for each read by JHCS and was given an IRS form 1099 for all fees paid to him. Respondent caused or allowed claims to be filed by JHCS with Medicare and other health care benefit programs claiming reimbursement for the technical portion for DU and NCV, which is the administration of the test. All tests were performed by a qualified person employed by a company not owned by JHCS. Additional Facts In United States of America v. Charles Doll, United States District Court, Middle District of Florida, Jacksonville Division, Case No. 3:03-cr-314-J-25MMH, Respondent pled guilty to Count 1 of the information, 18 U.S.C. §§ 1347 and 371. The nature of the offense was conspiracy to defraud a health care benefit program. The offense ended September 2002. The judgment in the criminal case held to the following effect: The defendant is sentenced as provided in pages 2 through 5 of this judgment. This sentence is imposed pursuant to the Sentencing Reform Act of 1984, as modified by United States v. Booker. At page 4 of 5 the obligation for restitution is set forth as part of the sentence. The sentence was imposed in the case on February 11, 2005, in which Respondent was placed on probation, for a term of three years. A special condition of supervision was that Respondent participate in the Home Detention Program for a period of six, assumed to be months, and that he perform 100 hours of community service. Respondent was required to pay a $10,000.00 fine and to make $400,000.00 in restitution. The payees in the restitution were: Aetna, Inc., $52,944.00; United Health Group, $38,076.00; DHHS/CMMS, Division of Accounting, $245,609.00; and Blue Cross/Blue Shield of Florida, $63,371.00. Respondent would receive credit for all payments previously made toward any criminal monetary penalties imposed on a joint and several basis with Respondent Mark Schoenborn, United States District Court, Case No. 3:03-cr-315-J-25MMH. Respondent does not use MRIs in his practice but refers patients for MRIs. The reason for the referral is that the results of an MRI will show soft tissue damage, if it exists, and the appearance of a disc on the MRI, before the patient was referred for an MRI, a diagnosis would have been made. Respondent perceives the MRI as a tool to confirm the diagnosis. The patient would have undergone examination and orthopedic tests before the MRI. Respondent has referred patients for NCV testing. The referral is to persons who can perform those studies and read the results. Respondent believes that as a licensed chiropractor he is allowed to make those referrals. Respondent has referred patients for DU. Respondent uses those tests to show inflammation processes. The diagnosis of the patient's condition would have been formed before the ultrasound was ordered. Dr. Doll understands that the practice of chiropractic medicine is related to the finding of subluxations and treatment of subluxations. A subluxation is a misaligned vertebrae. According to Respondent subluxations are caused by chemical events, stress, and trauma relating to responses in the body that promote reactions in the spine related to the soft tissue. Subluxation can cause a pinched nerve which can be addressed by adjustments and other modalities. Expert Opinion Michael William Mathesie, D.C., is licensed to practice chiropractic medicine in Florida. He is an expert in the field of chiropractic medicine. Petitioner hired Dr. Mathesie as its consultant in the case, to express an opinion concerning Respondent's practice in view of the allegations in the Administrative Complaint. Dr. Mathesie expressed the opinion that conspiracy to defraud a health care benefit program involves the receipt of money for services that the chiropractic physician may not have deserved to receive. Further, the criminal offense is related to the ability of the Respondent to practice chiropractic medicine, according to Dr. Mathesie, in that the collection of money that was unearned possibly focuses on ulterior motives other than what is necessary to treat the patient. In Dr. Mathesie's opinion the practice of chiropractic medicine consists of diagnosis and treatment of nerves, muscles, joints, and conditions of the spine and extremities. Diagnosis of a patient would consist of inspection and palpation, range of motion, orthopedic maneuvers, neurological evaluations, X-rays, CT scans, MRIs, neurological diagnostic testing, and other specialized tests, as well as blood laboratory evaluations. Treatment would consist of adjustments to the spine to correct subluxations, or other lesions of the spine causing nerve irritation or impulses or nerve transmission problems, physical therapy modalities, nutrition, counseling and other non- pharmaceutical and non-neurological procedures are also involved. Dr. Mathesie expressed the opinion that by a plea of conspiracy to defraud a health care benefit program, Respondent made deceptive and untrue or fraudulent representations in the practice of his profession. His opinion takes into account the payment for services through billing a health care benefit program for the patient's treatment, and a conspiracy to defraud would be a fraudulent act. Jan Allen Fralicker, D.C., was called as an expert to testify in behalf of Respondent Schoenborn. Dr. Fralicker is licensed in Florida to practice chiropractic medicine. In addressing the allegations in the Administrative Complaint directed to Respondent Schoenborn of a violation of Section 456.072(1)(c), Florida Statutes, and equally applicable to Respondent Doll, Dr. Fralicker does not believe that the allegations pertain to the practice of chiropractic medicine. Dr. Fralicker explains that the practice of chiropractic medicine in Florida is the diagnosis and treatment of human elements without the use of drugs or surgery, to include diagnostic testing. The crime to which Respondent Doll pled and Dr. Schoenborn pled, involves fraud in the criminal aspect, according to Dr. Fralicker, for receiving money for services not performed. The criminal activity did not actually involve Respondent's functioning as a chiropractor related to patients being treated. In Dr. Fralicker's opinion ordering the tests involved in the case, as Dr. Fralicker understands it, was the practice of chiropractic medicine, but defrauding a health care benefit program is not related to the practice of chiropractic medicine. Nothing about Dr. Fralicker's understanding of the criminal law matter involved a standard of care issue. Dr. Fralicker separates the criminal activity from the practice of chiropractic medicine. In summary, while ordering diagnostic tests is part of chiropractic medicine, pleading guilty to defrauding a health care program is not, in the view of Dr. Fralicker. What Respondents were engaged in was practicing chiropractic and then separately involving themselves in criminal activity to defraud, i.e. getting paid for something not being done. Dr. Fralicker is familiar, as a chiropractic physician, with submitting billing to be reimbursed for services as a chiropractic physician. He submits requests for reimbursement. The submission of requests for reimbursement is seen by Dr. Fralicker as part of the practice of chiropractic medicine. Dr. Fralicker believes that chiropractors providing a service must meet the standards of what the general population of chiropractors would do in the area where the practice involving appropriate diagnosis and referral to another professional if necessary for additional treatment. He does not believe that the Respondent violated the professional standards. Neither opinion of the experts is persuasive, beyond its value in establishing the nature of the practice of chiropractic medicine in delivering care and billing for the services provided.
Recommendation Based upon the consideration of the facts found and the conclusions of law made, it is RECOMMENDED: That a final order be entered finding a violation of Section 456.072(1)(c), Florida Statutes, and revoking Respondent's license as a chiropractic physician. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 16th day of March, 2006. COPIES FURNISHED: Ephraim D. Livingston, Esquire William Miller, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Charles B. Lembcke, Esquire 1300 River Place Boulevard, Suite 605 Jacksonville, Florida 32207 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way 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 primary issue in this case is whether the crime of which Respondent was convicted directly relates to the practice of medicine or the ability to practice. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Grigory Kliger, M.D., was licensed to practice medicine in the state of Florida, having been issued license number ME82106. Petitioner has regulatory jurisdiction over licensed physicians such as Dr. Kliger. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Dr. Kliger with one such offense, namely, being found guilty of a crime which directly relates to the practice of medicine. On February 1, 2005, in a case styled United States v. Kliger, No. 05-CR-12, which was then pending in the U.S. District Court for the Eastern District of New York, Dr. Kliger pleaded guilty to one count of a single-count information. The criminal offense with which he had been charged was conspiracy to commit health care fraud as defined in sections 1347 and 1349 of Title 18 of the U.S. Code. During the plea colloquy, Dr. Kliger testified under oath as follows regarding his criminal conduct: Between 1996 and June 2003, I knowingly and willfully agreed with others to defraud no- fault insurance companies which provided healthcare benefit programs that effected [sic] interstate commerce. * * * I was a doctor and had an ownership interest in several medical clinics, including medical clinics in Brooklyn, Queens and the Bronx, New York and elsewhere which submitted false claims to insurance companies for medical benefits, items and services that were never performed or delivered, were not ordered by a physician or were not necessary for treatment. When I caused this [sic] false claims to be submitted and reimbursed by the insurance, I knew watt [sic] I was doing was wrong. The magistrate judge found that Dr. Kliger's testimony was given knowingly and voluntarily and that there was an adequate factual basis for his plea; she recommended that the district judge accept Dr. Kliger's plea of guilty. Some time later, the court accepted the plea and, based thereon, adjudicated Dr. Kliger guilty as charged, entering a judgment of conviction on or about August 1, 2008. The judgment was later amended at least twice, most recently on March 13, 2012, to correct the spelling of Dr. Kliger's last name, which had been inscribed erroneously as "Kligor." Based on this conviction, the court sentenced Dr. Kliger to a term of 18 months' incarceration in a federal prison, to be followed by three years of supervised release with special conditions. In addition, Dr. Kliger was ordered to make restitution to the various insurance companies and clinics he had conspired to defraud. The total amount of the required restitution payments is approximately $2.5 million. The crime of which Dr. Kliger was convicted is directly related to the practice of medicine.
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 Dr. Kliger guilty the offense described in section 458.331(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of medicine. It is further RECOMMENDED that the Board of Medicine revoke Dr. Kliger's medical license and impose an administrative fine of $10,000. DONE AND ENTERED this 9th day of April, 2013, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 9th day of April, 2013. COPIES FURNISHED: Yolonda Y. Green, Esquire Robert A. Milne, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Mark L. Pomeranz, Esquire Pomeranz & Associates, P.A. 1920 East Hallendale Beach Boulevard Suite #802 Hallendale Beach, Florida 33009 Allison Dudley, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
