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DEPARTMENT OF INSURANCE vs GEORGE JESUS GONZALEZ, 00-003778PL (2000)

Division of Administrative Hearings, Florida Filed:Miami, Florida Sep. 08, 2000 Number: 00-003778PL Latest Update: Jan. 27, 2003

The Issue Whether one or more grounds exist for suspending, or imposing other discipline against, Respondent’s license, where Petitioner charges that Respondent engaged in fraudulent or dishonest practices in the conduct of business as a licensed health insurance agent.

Findings Of Fact The evidence presented at final hearing established the facts that follow. The Big Picture 1. Gonzalez is, and at all times material was, a Florida- licensed health insurance agent whose conduct qua licensee is subject to the regulatory jurisdiction of the Department. 2. From April 1997 until January 25, 1999, Gonzalez worked as a sales representative for Foundation Health, a Florida Health Plan, Inc. (“Foundation”) at its offices in Dade County, Florida. Foundation paid Gonzalez a base salary and car allowance plus commissions and bonuses tied to production. 3. As an agent of Foundation, Gonzalez’s job was to solicit applications from Medicare recipients for membership in Foundation’s Senior Value Medicare Plan, a health maintenance organization (“HMO”) that, through managed care, provided a broader spectrum of benefits than otherwise was available under traditional Medicare coverage. For each Medicare recipient enrolled in the Senior Value Medicare Plan, Foundation received a monthly payment from the federal Health Care Financing Administration (“HCFA”). 4. On January 14, 1999, Gonzalez, as Foundation’s representative, signed an application for enrollment in the Senior Value Medicare Plan that had been filled out for an applicant named “Doris Simpson.” Included in the application were numerous identifying data such as Ms. Simpson’s address, phone number, date of birth, social security number, and Medicare number. Gonzalez submitted Ms. Simpson’s January 14, 1999, application to Foundation, initiating the enrollment process. 5. The Doris Simpson who fit the application’s description had died on or around July 1, 1998. The fact of her death was discovered in short order by HCFA during the ordinary course of the enrollment process. HCFA naturally rejected the bogus application and notified Foundation of the problem on or around January 20, 1999. 6. On January 22, 1999, Foundation suspended Gonzalez for three days, effective immediately, pending the outcome of its investigation into the Doris Simpson matter. 7. Gonzalez resigned his employment with Foundation on January 25, 1999. Thereafter, on February 1, 1999, Gonzalez began working for Physicians Healthcare Plans, Inc. as a sales representative, a job he has held ever since. Mistake or Misconduct? 8. The foregoing facts are largely undisputed; those that follow mostly are, hotly. Getting to the bottom of whether Gonzalez made an honest mistake, as he maintains, or submitted a fraudulent application, as the Department has charged, is facilitated by a careful scrutiny of Gonzalez’s conflicting explanations of what happened. 9. Gonzalez’s most contemporaneous account of the Simpson affair appears to be contained in an undated handwritten document, entitled simply “Statement,” that Gonzalez himself indisputably prepared and signed. The full text of this paper follows: STATEMENT Prospect: Doris Simpson Ss# 075-22-6675 Agent: George J. Gonzalez Ss# 263-92-7916 To whom it may concern: To the best of my recollection I arrived at 20879 N.W. 9th Ct #107 (Walden Ponds Community) during the morning of (on or about) 11 a.m. 14th Jan.—through the gate system. Ms. Simpson agreed to my visit & let me in. Ms. Simpson opened [the] door and throughout my presentation produced a Medicare card and then proceeded to verification. Verification person was “DAWN.” Throughout the whole process everything proceeded to a normal sit down “application-to-verification” prospect call. P.S. She is blind, African-American. {Signed] George J. Gonzalez 10. Gonzalez’s manager at Foundation, Sergio Rumie, testified that sometime between January 20 and January 22, 1999, Gonzalez personally had handed him this Statement, which, according to Mr. Rumie, constituted Gonzalez’s written explanation of what had occurred with the Simpson application. Mr. Rumie recalled that in a discussion between the two of them, Gonzalez had told him that he (Gonzalez) had met with someone (obviously not Doris Simpson) in the Simpson household on January 14, 1999, who had held herself out as Ms. Simpson and signed the application. Mr. Rumie believed Gonzalez. 11. Although the Statement is not dated, two details in Gonzalez’s handwritten memorandum strongly suggest that the events of January 14, 1999, were its intended subject. The first of these telltale details is the date itself. The controversial Simpson application is dated January 14, 1999. The Statement refers to a meeting between Gonzalez and Doris Simpson on January 14. No imagination is required to connect one to the other. 12. The second common denominator linking the Statement to the phony Simpson application is the verifier’s name, Dawn. Before going on, however, some additional background must be provided, so that the significance of this datum may be understood. 13. At all times material, an independent contractor located in Utah performed application verification services for Foundation. The name of this contractor is not in evidence. For convenience’s sake, following the witnesses’ lead, the contractor will be referred to simply as “Utah.” 14. As part of the approved sales process, Foundation required its agents to place a telephone call to Utah, in the presence of the prospective enrollee, whenever an application had been completed. Once connected, the agent was supposed to introduce the applicant to the verifier, and then turn the phone over to the applicant. Using a script, the verifier would ask the applicant a series of questions, to confirm that he or she understood the transaction at hand. If the interview went well, the verifier would give the agent a verification number along with his or her name, both of which the agent would record on the face of the application. Foundation would not accept an _application unless it contained a verification number. 15. On the controversial Simpson application of January 14, 1999, Gonzalez wrote, by hand, a verification number and the verifier’s name, which happens to have been Dawn—the very name, recall, of the verifier who was so prominently identified (as “DAWN”) in the Statement. 16. If the story ended here, it would be difficult to find that Gonzalez had willfully submitted a false application. Rather, to this point, Gonzalez seems to have been the victim of a strange hoax, fooled by an imposter pretending (for reasons that admittedly are not readily apparent) to be the late Doris Simpson. Mr. Rumie, after all, who knew Gonzalez and was ina position to assess his character and credibility at the time of the incident, had believed this to be the case. 17. But there is more to the story. The exculpatory scenario just mentioned holds water only if Gonzalez were unacquainted with the real Doris Simpson, for if Gonzalez had known the decedent personally, then common sense would counsel that he could not have fallen for a poseur’s deceit. 18. Gonzalez testified that he had been to Ms. Simpson's home on three occasions before January 1999, and that he knew her well. Twice, he said, he had taken an application from Ms. Simpson in person, had submitted the application, which was accepted, and thereby had succeeded in enrolling her in Foundation’s HMO. Each time, however, Ms. Simpson had dis- enrolled before long. Corroborating Gonzalez’s account are two completed applications, dated March 31, 1997, and June 4, 1998, and the fact that Ms. Simpson had been a member of the Senior Value Medical Plan for brief periods following these dates. 19. Gonzalez claimed also to have taken an application from Ms. Simpson in January 1998 that was rejected. In contrast to the other two, however, no application from January 1998 was produced at hearing—indeed, no persuasive corroborating evidence of any kind was adduced in support of this supposed January 1998 application. 20. The reliability of Gonzalez's testimony that he knew Ms. Simpson personally from dealings between them that had occurred before January 1999 is high because the fact is against his interests; this much of Gonzalez's testimony, therefore, is accepted as true and adopted as a fact finding. 21. On the other hand, Gonzalez's testimony that he met with Ms. Simpson in January 1998 and took an application from her at that time is suspiciously self-serving (as will be seen) and, ultimately, not believable. Initially, Gonzalez’s failure to produce the purported application raises a skeptical eyebrow. But what sinks Gonzalez's story about meeting Ms. Simpson in January 1998 is that the tale was told in an incredible attempt to explain away the Statement (which, if intended to refer to events of January 14, 1999, cannot be squared with Gonzalez’s admission that he had by then known Ms. Simpson personally from prior dealings) as a memorandum regarding this purported January 1998 visit. Gonzalez maintained that, by coincidence, he had happened to meet with Ms. Simpson on January 14, 1998, and again on January 14, 1999, and that both times the verifier, as chance would have it, was Dawn. This contention is contrived and forced. 22. Taken as a whole, the evidence is convincing that Gonzalez wrote the Statement in January 1999 for his former employer and delivered it to Mr. Rumie between January 20 and January 22, 1999, with the intent that the Statement be understood as a description of the circumstances surrounding Gonzalez’s solicitation of the January 14, 1999, application from the putative Ms. Simpson. The contents of the Statement, 10 however, are false and misleading, as was Gonzalez's testimony at hearing about the Statement. 23. Gonzalez gave a different account of the Simpson application to the Department of Insurance in response to the Administrative Complaint in this matter. In an undated letter to the Department which the Department received on September 6, 2000, Gonzalez wrote: By recollection I believe this case involves a mail-in situation. I recall that I sent maybe two/three such invitation packages in the Spring of 1998 and one could have been for Mrs. Simpson. That practice is no longer tolerated after a new Vice-president of marketing (Medicare) was installed in the Sawgrass Headquarters late May of that same year. As 1998 was ending in December (late) I believe I received an application signed and (I believe) it was the Simpson one. I completed the data in those days that followed early in January 1999, before starting my new job did a phone verification (3 way) or gave this information to a verifying person (Utah) and the person was thus verified (I cannot be clear on this). Hearing no problems from Utah I recorded the authorization # on a call back from Utah or after the verification; if done by 3-way. I did not know of her death and in fact only found out when receiving your package of counts and allegations on August 21, 2000. I would only add that Mrs. Simpson had a family member there, perhaps her sister. During my first application for the plan with Mrs. Simpson in late 1997 I believe she helped in the signing and subsequent verification of her sister. Mrs. Simpson 11 could not sign any proper way the petitions. I believe she was blind in my recollections. 24. Ironically, one of the few unqualified representations in this letter of Gonzalez's to the Department—that he “in fact” had first learned of Ms. Simpson’s death upon receipt of the Administrative Complaint—was clearly untrue. In fact, Gonzalez undeniably had known of Ms. Simpson's death at the time of his resignation from Foundation on January 25, 1999, if not sooner, and certainly long before August 21, 2000, in any event. 25. As for the rest of this explanation, Gonzalez essentially stuck with it at hearing, although his memory apparently had improved by then, for he seemed far more confident of the details than he had as author of the above- quoted letter. 26. In a nutshell, Gonzalez claimed that, on his own initiative, he had mailed a partially filled-out application to Ms. Simpson in June or July 1998 with note asking her to sign and return the document if she wanted to re-enroll in Foundation's Medicare HMO. He claimed to have had no further contact with Ms. Simpson until, in late December 1998 or early January 1999, he received through the mail Ms. Simpson's signed- but-undated application. According to Gonzalez, despite the delay of some five months, Gonzalez failed to call Ms. Simpson to confirm her continued interest and instead signed the 12 application on January 14, 1999, inscribing the same date next to the purported signature of Ms. Simpson. He claimed to have contacted Utah, provided the necessary information to the verifier, and in due course to have received a verification number from Dawn, which signified to him that all was in order. 27. This story is facially unbelievable and is rejected as a fabrication. Moreover, there is an out-of-place detail on the January 14, 1999, application that exposes the chicanery; namely, the designated primary care physician, a Dr. Nidal Radwan, who is specifically identified therein as Ms. Simpson's current physician. When Gonzalez was asked at hearing to point out the parts of the application that he had filled out, Gonzalez replied, making reference to the top quarter of the first page where the primary care physician information appears, that [t]he part that's my handwriting is the name, the address, the phone number, and the date of birth, and doctor selected, which was her last doctor. I put it there, I said does she [sic] want this doctor again. Transcript of Final Hearing at 193 (emphasis added). 28. At the time Gonzalez supposedly prepared this application, in June or July 1998, he had not spoken with Ms. Simpson specifically about doing so; indeed, she may well already have passed away. He certainly did not speak with her about doctors after July 1, 1998. Yet on the previous 13 application that Gonzalez had taken from Ms. Simpson just a few weeks before her death, dated June 4, 1998 (Respondent's Exhibit 4), Ms. Simpson had chosen a Dr. [Illegible] -Nunez as her primary care physician—not Dr. Radwan. 29. It is commonly known that for a genuine insurance application, the sales representative or agent will endeavor to elicit truthful, complete, and current information from the applicant and rely upon the applicant's representations in preparing the paperwork. The fact that Gonzalez's selection of Dr. Radwan as Ms. Simpson's "current" primary care physician was not based on information obtained from Ms. Simpson—aindeed, his election deviated from her last (known) written expression of intent in this regard—-exposes the act as an arbitrary choice of Gonzalez's, which in turn underscores the counterfeit nature of the January 14, 1999, application. The Charges 30. In Count I of its Administrative Complaint, based on allegations that Gonzalez had signed and presented an application for insurance in the name Doris Simpson, who was at the time deceased, the Department accused Gonzalez of having submitted an enrollment form that he "knew or should have known" contained false or fraudulent information, in violation of Sections 626.611 and 626.621, Florida Statutes. Specifically, the Department alleged the following grounds for discipline: 14 (a) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising. [Section 626.611(5), Florida Statutes] ; (b) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7}, Florida Statutes] ; (c) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes] ; (d) Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code. [Section 626.611(13), Florida Statutes] ; (e) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment. [Section 626.621(2), Florida Statutes] ; (£) In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest. [Section 626.621(6), Florida Statutes] ; [and] (g} UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS.- The following are defined as unfair methods of competition and unfair or deceptive acts or practices: Misrepresentation in insurance applications.- Knowingly making a false or 15 fraudulent written or oral statement or representation on, or relative to, an application or negotiation for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. [Section 626.9541(1) (k), Florida Statutes] [.] Ultimate Factual Determinations 31. Because the evidence does not illuminate all the particulars of Gonzalez’s scheme, it is impossible to reconstruct completely the precise course of his misconduct. The evidence is sufficient, however, to establish, clearly and convincingly, that on or around January 14, 1999, Gonzalez: (a) signed an insurance application for Ms. Doris Simpson knowing that she had neither requested the sought-after coverage, nor supplied information for that application, nor executed the application herself; (b) placed a date next to the purported signature of Ms. Simpson (which he knew was not hers) intentionally to represent, falsely, that “she” and he had signed the instrument contemporaneously (and hence, implicitly, in one another’s presence); and (c) with intent to deceive, submitted this bogus application to his employer, Foundation, for the purpose of obtaining a commission or other benefit. 16

Conclusions For Petitioner: Anoush A. Arakalian, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 For Respondent: Ignacio Siberio, Esquire 525 Northwest 27th Avenue, Suite 100 Miami, Florida 33125

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order suspending Gonzalez’s health insurance agent license for a period of one year. 21 DONE AND ENTERED this 10 day of July, 2001, in Tallahassee, Leon Count 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 lot day of July, 2001.

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