07-001454PL Department Of Health, Board Of Medicine vs. Edgar Zamora, M.D. Status: Closed Recommended Order on Friday, July 20, 2007.

Summary: Respondent violated Section 458.331(1)(c), Florida Statutes, by a conviction to defraud the United States, and for health care fraud.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner, )

)

vs. ) Case No. 07 - 1454 PL

)

EDGAR ZAMORA , M.D., )

)

Respondent. )

_________________________________ __ )

RECOMMEND ED ORDER

This case came before Larry J. Sartin, an Administrative

Law Judge of the Division of Administrative Hearings, on a

factual record stipulated to by the parties.

APPEARANCES

For Petitioner: Diane K. Kiesling

Assistant General Counsel

Office of the General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Benedict P. Kuehne , Esquire

Sale & Kuehne , P.A.

BankAmerica Tower, Suite 3550

100 So uthe ast Second Stree t

Miami, Florida 33331 - 2156

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent, Edgar

Zamora, M.D., committed a violation of Chapter 458, Florida

Statutes (2005), as alleged in an Amended Administrative

Complaint iss ued by Petitioner, the Department of Health and, if

so, what disciplinary action should be taken against his license

to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

On or about May 26, 2006, the Department of Health issued

an Administra tive Complaint in DOH Case No. 2004 - 03514 against

Edgar Zamora , M.D., an individual licensed to practice medicine

in Florida, in which it alleged that Respondent had committed a

violation of Section 458.331(1)(c), Florida Statutes (2005). On

June 21, 2006 , the Department of Health issued a Corrected

Administrative Complaint alleging the same statutory violation.

Respondent , through counsel, filed an Election of Rights

form on July 14, 2006, in which he disputed the allegations of

fact contained in the Corr ected Administrative Complaint and

requested a formal administrative hearing pursuant to Section

120.569 (2)(a), Florida Statutes (2006) .

Pursuant to an Order issued by the Board of Medicine on

October 16, 2006, the matter was filed with the Division of

Adm inistrative Hearings on March 28, 2007, with a request that

an administrative law judge be assigned the case to conduct

proceedings pursuant to Section 120.57(1), Florida Stat utes

(2006 ). The matter was designated DOAH C ase Number 07 - 1454 PL

and wa s assign ed to the undersigned.

The final hearing was scheduled by a Notice of Hearing by

Video Teleconference entered April 4, 2007 , for May 25 , 2007.

On April 4, 2007, a Motion to Amend Administrative

Complaint was filed. That Motion was granted by Order entered

April 16, 2007.

Following the scheduling of the final hearing, the parties

filed a number of motions which ultimate led to a pre - hearing

conference, held by telephone. Those motions include

Petitioner's Motion for Pre - Hearing Conference, Respondent's

Uno pposed Motion for Continuance of May 25, 2007 Video

Teleconference Hearing, Respondent's Motion for Stay of

Proceedings Pending Outcome of Federal Appeal, and Petitioner's

Response to Motion for Stay of Proceedings Pending Outcome of

Federal Appeal and Pet itioner's Request for a Telephonic Hearing

on the Merits of the Case.

The pre - hearing conference was conducted on April 18, 2007.

During the pre - hearing conference, which effectively granted

Petitioner's Motion for Pre - Hearing Conference, Respondent's

Mot ion for Stay of Proceedings Pending Outcome of Federal Appeal

was denied. It was agreed, however, that the final hearing

would be cancelled and that the matter would proceed to

resolution upon a stipulated record. Exactly how the matter

would proceed was to be agreed to by the parties and reported to

the undersigned.

Following the pre - hearing conference, an Order Canceling

Hearing was entered. In addition to canceling the May 25, 2007,

hearing, the parties were ordered to "advise the undersigned in

writi ng no later than May 1, 2007, as to the status of this

matter."

On May 1, 2007, Petitioner filed a Joint Response to

Scheduling Order. Petitioner reported the following:

1. The parties agree that the attached

certified copies of the Indictment, Jury

Ve rdict of Conviction, and Sentencing in the

case of 04 - 20059CR - JORDAN in the United

States District Court, Southern District of

Florida, are admissible without more in the

above - styled cause.

2. The parties agree that this case can

be heard without a fo rmal hearing. The

parties have further agreed that either

affidavits or deposition of experts as

needed will be filed on June 5, 2007.

3. Petitioner is authorized to file this

response by Respondent.

Respondent did not file a response to the Joint Re sponse to

Scheduling Order or otherwise indicate disagreement with

Petitioner's representations.

Petitioner filed certified copies of the Indictment, Jury

Verdict of Conviction, and Sentencing in the case of 06 - 20059CR -

JORDAN in the United States District Court, Southern District of

Florida.

On May 2, 2007, a Scheduling Order was entered. Pursuant

to this Order, the Indictment, Conviction, and Sentence were

admitted as evidence. Additionally, the parties were given

until June 5, 2007, to file either affid avits or depositions of

experts (addressing the issue of whether the crime for which

Respondent was convicted was a crime which directly related to

the practice of medicine or to the ability to practice

medicine ), and to June 15, 2007, to file proposed rec ommended

orders.

Consistent with the agreement of the parties and the

Scheduling Order, on June 5, 2007, Petitioner filed an Affi davit

of John P. Mahoney, M.D. ( hereinafter referred to as

"Dr. Mahoney's Affidavit"). Dr. Mahoney's Affidavit is hereby

admit ted as evidence. No affidavit or deposition has been filed

by Respondent .

O n June 15, 2007, a Friday, in conformance with the

Scheduling Order, Petitioner filed Petitioner's Proposed

Recommended Order. Respondent did not file Respondent's

Proposed Recomm ended Order until 8:1 3 a.m., Monday, June 18,

2007. That same day, Petitioner filed a Motion to Strike

Respondent's Proposed Recommended Order arguing that it had been

prejudiced "by Respondent's late filing because it [gave] the

Respondent the opportunit y to review Petitioner's proposed

recommended order and include responses to it in Respondent's

proposed recommended order." As an alternative to striking

Respondent's Proposed Recommended Order, Petitioner requested

that it not be considered in preparing this Recommended Order.

On June 19, 2007, Respondent filed Respondent's Response in

Opposition to Motion to Strike Respondent's Proposed Recommended

Order, or Alternative Motion to Permit Filing One - Day Out of

Time. Counsel for Respondent represented tha t he had prepared

the proposed recommended order on Thursday, June 14, 2007 , and

that, due to his absence from the office the next day, it was

not filed until June 18, 2007. Counsel also represented that he

had not reviewed Petitioner's Proposed Recommend ed Order or even

been aware of it at the time Respondent proposal was filed.

Allowing Respondent to present argument in this matter is a

fundamental right. Therefore, to impose any sanction on

Respondent for filing his proposed order late, it must be

conc luded that there has been actually prejudice to Petitioner

caused by Respondent's actions. Given the fact that Petitioner

has only alleged that Respondent had the "opportunity" to review

Petitioner's proposal , while counsel for Respondent has

represented unequivocally that he did not do so, it appears

there was no actual prejudice. To substantiate this conclusion,

however, both pleadings have been reviewed. Based upon that

review, it is concluded that Petitioner has not been prejudiced

by Respondent's la te filing of its proposed recommended order.

Consequently, Petitioner's Motion to Strike Respondent's

Proposed Recommended Order is denied and Respondent's

Alternative Motion to Permit Filing One - Day Out of Time is

granted.

Inconsistent with the agreement of the parties and the

Order Canceling Hearing and the Scheduling Order entered in this

case, Respondent filed on June 19, 2007, Respondent's Submission

in Opposition to Allegations of Amended Administrative Complaint

and Petitioner's Proffer, and, on Jun e 19 , 2007, Respondent's

Statement of Mitigation and, on June 25, 2007, Respondent's

Notice of Submission of Sentencing Materials Filed in Underlying

Federal Court Case for Mitigation Consideration. Neither of the

submittals nor the Statement of Mitigati o n was agreed to by the

parties or requested by the undersigned. Petitioner filed

motions to strike the two submittals .

In lieu of striking Respondent's late submittals, by Order

entered July 9, 2007, Petitioner was given an opportunity to

respond to the l ate, unagreed - u pon pleadings on or before

July 25, 2007. On July 13, 2007, Petitioner filed Petitioner's

Response to Respondent's Submissions. The Response has been

fully considered in entering this Recommended Order. Having

given Petitioner an opportun ity to respond to Respondent's

unsolicited submittals, Petitioner's request to strike

Respondent's Submission in Opposition to Allegations of Amended

Administrative Complaint and Petitioner's Proffer and

Respondent's Notice of Submission of Sentencing Mate rials Filed

in Underlying Federal Court Case for Mitigation Consideration is

denied. The submittals have been fully considered in rendering

this Recommended Order.

On July 16, 2007, Respondent filed Respondent's Motion to

Strike Petitioner's Late - Filed No tice of Filing Amended

Administrative Complaint. Petitioner filed a Response to this

Motion. After due consideration, the Motion to Strike is

denied.

C onsistent with the agreement reached by the parties, both

parties filed proposed orders for considerati on in entering this

Recommended Order. Those pleadings have been fully considered.

FINDINGS OF FACT

A. The Parties .

1. 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).

2. Respondent, Edgar Zamora , M.D., is, and was at all

times material t o this matter, a physician licensed to practice

medicine in Florida pursuant to Chapter 458, Florida Statutes,

having been issued license number ME 68598 .

B. The Indictment and Conviction .

3 . O n or about January 27, 2004, Dr. Zamora was indicted

in the U nited States District Court, Southern District of

Florida, Case No. 06 - 20059 CR - JORDAN , United States of America v.

Heldy Artiles, et al. , on one count of C onspiracy to commit

offenses against the United States, in violation of Section 18

U.S.C. § 731 (Coun t 1), and one count of Health Care Fraud, in

violation of Section 18 U.S.C. § 1367 (Count 7)(hereinafter

referred to as the "Indictment").

4. The Indictment provides the following identification of

Dr. Zamora:

5. Defendant EDGAR ZAMORA was a medical

do ctor licensed to practice medicine in the

State of Florida. He was employed by Miami

Health as the clinic's doctor from in or

around March 2000 through in or around June

2000.

5. In Count 1 of Indictment, it is alleged that Dr. Zamora

and the other name d defendants committed Health Care Fraud

Conspiracy against "Medicare and Private Insurance Companies, in

connection with the delivery of and payment for health care

benefits, items, and services” in order to "enrich themselves"

in the following manner :

(a ) submitting false and fraudulent claims

to health care benefit programs; (b) paying

kickbacks and bribes to Medicare

beneficiaries and PIP - insured individuals so

that they would serve as fictitious

patients, thereby furthering the billing

fraud scheme; (c ) concealing the submission

of fraudulent claims to health care benefit

programs, the receipt and transfer of fraud

proceeds, and the payment of kickbacks; and

(d) diverting fraud proceeds f o r the

defendants' personal use and benefit.

Page 11 of the Indic tment.

6 . The Indictment alleges the following facts concerning

the Medicare Program:

2 5 . The Medicare Program ( " Medicare") was

a federal program that provided free or

below - cost health care benefits to certain

individuals, primarily the elderly, blin d

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 ("CM S") .

Individuals who receive benefits are

referred to as beneficiaries.

2 6 . Medicare was a "health care benefit

program," as defined by Title 18, United

States Code, Section 24(b).

2 7. Part B of the Medicare Program was a

medical insurance program that covered,

among other things, certain physician

services, medical testing, medications, and

durable medical equipment. Durable medical

equipment, or "DME," is equipment that is

designed for repeated use and for a medical

purpose, such as a knee or ba ck brace,

nebulizer, or oxygen concentrator.

28. The Medicare Part B Program was

administered in the State of Florida by two

entities, Palmetto Government Benefits

Administrators ("PGBA") and Blue Cross/Blue

Shield of Florida ("BC/BS"), both of which

w ere private health insurance carriers that

contracted with HCFA to receive, adjudicate,

and pay Medicare Part B claims. PGBA

processed and paid claims for DME and

related supplies, including the associated

medications. BC/BS processed and paid

claims for physician and medical clinic

services and diagnostic tests.

Pages 5 and 6 of the Indictment.

7. In part, the Indictment describes the following

Medicare billing procedures:

29. Qualified DME or pharmaceutical

companies who supplied medical equipment or

medications in connection with the Medicare

program applied for and were given a

"supplier number." The supplier number

allowed DME suppliers and pharmaceutical

companies to seek reimbursement for medical

equipment and medications that they had

supplie d to Medicare beneficiaries.

30. Medical clinics or doctors who

provided services in connection with the

Medicare program applied for and were given

a "provider number," which allowed them to

seek reimbursement for medical services that

they had provid ed to Medicare beneficiaries.

31. In order to receive payment from

Medicare, a participating DME or

pharmaceutical supplier was required to

submit a health insurance claim form, known

as a Form HCF A - 1500 ("HCFA 1500"), and/or an

Electronic Media Claim ("EMC"), which set

forth, among other things, the beneficiary's

name and unique Medicare identification

number, the name and identification number

of the doctor who ordered the item or

medication, the item or medication that was

supplied, the date of servi ce, and the

charge for the item or medication.

32. Likewise, in order for participating

medical clinics and doctors to receive

payment form Medicare, the providers were

required to submit a HCFA 1500, and/or EMC,

which set forth, among other things, th e

beneficiary's name and unique Medicare

identification number, the date of service,

a description of the medical procedures and

services provided to the patient, the

physician who performed or ordered the

procedures or services, and the amount

charged for each procedure and service.

33. Medicare, through BC/BS and PGBA,

would generally pay 80% of the allowed cost

for medical services, DME, and medications

that were medically; necessary and ordered

by licensed doctors or other qualified

health care prov iders.

34. Payments under the Medicare program

were often made directly to the doctor or

other provider or supplier of the medical

goods or services rather than to the

patient/beneficiary. For this to occur, t he

beneficiary was required to assign the right

of payment to the provider or supplier.

Thereafter, the provider or supplier assumed

responsibility for submitting its bill

directly to Medicare and obtaining payment.

35. From January 1997 through March 2000,

Miami Health Billed Medicare electr onically

by EMC under its assigned Medicare provider

number, 40779. In or around March 2000,

Miami Health was suspended by the Medicare

Program, after which Miami Health billed

Medicare by EMC using the Medicare provider

number assigned to the doctor that was

working at the clinic at the time. From in

or around March 2000 through in or around

June 2000, Miami Health billed Medicare

under the provider number assigned to EDGAR

ZAMORA , 27247. . . . .

. . . .

Pages 6 through 8 of the Indictment.

8. With regard to Dr. Zamora, the Indictment alleges the

"manner and means of the conspiracy" consisted of the following:

12. GUILLERMO GARCIA, EDGAR ZAMORA , and

JOSE GARRIDO signed the altered, typed

doctor notes and prescriptions, knowing that

the notes and p rescriptions had been changed

and called for medically unnecessary tests,

therapy, medications, and DME, and, in some

cases, knowing that the altered notes

reflected office visits that had not

occurred.

Page 13 of the Indictment.

9. Finally, as to Count 1, Dr. Zamora is alleged to have

committed the following "overt acts" with regard to "Car

Accident Patient N.R. " :

27. On or about June 19, 2000, EDGAR

ZAMORA signed a typed final examination

medical report concerning staged accident

patient N.R., knowin g that the typed note

included false patient diagnoses and also a

disability rating of 4% that had been

fabricated by HELDY ARTILES .

Page 18 of the Indictment.

10. As to Count 7 of the Indictment, it was charged that

Dr. Zamora and the other named defen dants "in connection with

the delivery of and payment for health care benefits, items, and

services," committed Health Care Fraud against Medicare by:

(a) submitting or causing to submit false

and fraudulent claims to Medicare and the

Private Insurance Com panies for the co s ts of

medical tests, medical equipment, therapy,

and medications; (b) paying kickbacks to

Medicare beneficiaries and PIP - insured

patients so that they would serve as

patients, thereby furthering the fraudulent

billing scheme; (c) conceali ng the

submission of false and fraudulent claims to

Medicare and the Private Insurance

Companies; and (d) diverting fraud proceeds

for the defendants' personal use and

benefit.

Page 25 of the Indictment.

11. In particular, Dr. Zamora was alleged to have

committed Health Care Fraud against Medicare by using his

Medicare health care provider number when he submitted claims

related to Car Accident Patient N.R. for an "[o]ffice visit, x -

rays, tests, and physical therapy . . . ." Page 26 of the

Indictment.

12 . On March 26, 2005 , Dr. Zamora was found guilty by jury

verdict of both counts against him of the I ndictment .

1 3 . On December 5, 2005 , United States District Judge

Adalberto Jordan adjudicated Dr. Zamora guilty of the criminal

offense charged against hi m in the Indictment. Judge Jordan

sentenced Dr. Zamora to 27 months’ incarceration on both counts,

to run concurrently; two years of supervised release; and

restitution of $221,726.96.

C. The Relationship of Dr. Zamora's Conviction to the

Practice of Me dicine .

1 4 . In light of the jury conviction on both counts of the

Indictment relating to him , it is concluded that Dr. Zamora

engaged in the activities alleged in the Indictment. All of

those activities related to the practice of medicine .

1 5 . But for D r. Zamora's license to practice medicine in

Florida, Dr. Zamora would not have been able to commit the

crimes for which he was convicted . It was his license to

practice medicine that facilitated his ability to work at Miami

Health , to obtain a Medicare pr ovider number, and to fully

participate in the Medicare program. All of the activities he

engaged in, such as signing necessary Medicare documents and

medical records backup, were carried out in his capacity as a

licensed Florida physician.

16. The crime s for which Dr. Zamora were convicted were

crimes " which directly relat es to the practice of medicine."

D. Prior Disciplinary Action .

1 7 . Dr. Zamora has not previously been disci plined by the

Board of Medicine.

CONCLUSIONS OF LAW

A. Jurisdiction .

1 8 . T he Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes (2006).

B. The Charges of the Administrative Complaint .

1 9 . Section 458.331(1), Florida Statutes (2005) ,

authorizes the Board of Medicine (hereinafter referred to as the

"Board"), to impose penalties ranging from the issuance of a

letter of concern to revocation of a physician's license to

practice medicine i n Florida if a physician commits one or more

acts specified therein.

20 . I n its Amended Administrative Complaint , the

Department has alleged that Dr. Zamora has violated Section

45 8.331(1)(c), Florida Statutes (2005).

C. The Burden and Standard of Proof .

2 1 . The Department seeks to impose penalties against

Dr. Zamora through the Amended Administrative Complaint that

include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, the Department

has the burden o f proving the specific allegations of fact that

support its charge that Dr. Zamora violated Section

458.331(1)(c), Florida Statutes (2005) , by clear and convincing

evidence. Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); Pou v. Department of Insurance and Treasurer , 707

So. 2d 941 (Fla. 3d DCA 1998); and Section 120. 57(1)(j), Florida

Statutes (2006 )("Findings of fact sh all be based on a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as oth erwise provided by

statute.").

2 2 . What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. D epartment of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be disti nctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief or conviction, witho ut

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

D epartment of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D. Section 458.331(1)(c), Florida Statutes (2005) .

2 3 . Section 458.331(1)(c), Florida Statutes (2005) ,

defines the following disciplinable offen se:

(c) Being convicted or found guilty of,

or entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of medicine or to the ability to

practice medicine.

24 . In p aragraphs 18 and 1 9 of the Amended Administrative

Complaint , it is alleged that Dr. Zamora's felony convictions

relate directly to his practice of medicine and his ability to

practice me dicine in the following ways :

A. Only a licensed, medical doctor

may apply to be a Medicare provider;

B. Only a licensed, medical doctor

may be issued a Medicare provider

number;

C. Respondent is a licensed medical

doctor in the State of Flor i da and was

at all times pe rtinent to the facts of

the aforementioned indictment;

D . Respondent applied for and

received Medicare provider number 27247;

E. Respondent signed false documents

and/or created false records for

Medicare patients, including but not

limited to: Patient N.R.;

F. Respondent caused to be submitted

fraudule nt claims to Medicare using his

Medicare provider number;

G. Respondent submitted, or caused to

be submitted, false documents and/or

false records to Medicare for

reimbursement for his Medicare patients,

including but not limited to Medicare

beneficiari es, including patient N.R.;

and

H. Respondent took part in a scheme

to defraud Medicare furthering the

billing fraud scheme.

19. But for the fact that Respondent was

a licensed doctor in the State of Florida,

he would have been unable to commit the

crimes for which he was committed. Without

his medical license, he would not have been

able to secure a Medicare provider number,

participate in the Medicare program, sign

Medicare claims forms or sign fraudulent

medical records to support those claim

for ms.

25 . The evidence has proven clearly and convincingly that

Dr. Zamora has been convicted of crimes that relate to his

practice of medicine as alleged in the Amended Administrative

Complaint and described in the findings of f act section of this

Recomme nded Order . Dr. Zamora's convictions for Conspiracy to

Defraud the United States and for Health Care Fraud both

involved Dr. Zamora's manipulation of the Medicare system. His

status as a physician al lowed him to apply for and obtain his

Medicare provider number, and it was his signature as a licensed

physician on false medical records and Medicare claims , which he

allowed to be submitted to Medicare for reimbursement , and which

facilitated his commitment of the crimes for which he was

convicted . These fa cts rel ate directly to Dr. Zamora's prac tice

of medicine , and they formed the bas is for the jury ’s finding

Dr. Zamora guilty .

E. The Appropriate Penalty .

2 6 . In determining the appropriate punitive action to

recommend to the Board in this case, it is nec essary to consult

the Board's "disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professi onal

Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

2 7 . The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "purpose" and instruction on the application of the

penalty ranges provided in the Ru le:

(1) Purpose. Pursuant to Section 456.079,

F.S., the Board provides within this rule

disciplinary guidelines which shall be

imposed upon applicants or licensees whom it

regulates under Chapter 458, F.S. The

purpose of this rule is to notify applican ts

and licensees of the ranges of penalties

which will routinely be imposed unless the

Board finds it necessary to deviate from the

guidelines for the stated reasons given

within this rule. The ranges of penalties

provided below are based upon a single co unt

violation of each provision listed; multiple

counts of the violated provisions or a

combination of the violations may result in

a higher penalty than that for a single,

isolated violation. Each range includes the

lowest and highest penalty and all pen alties

falling between. The purposes of the

imposition of discipline are to punish the

applicants or licensees for violations and

to deter them from future violations; to

offer opportunities for rehabilitation, when

appropriate; and to deter other applica nts

or licensees from violations.

(2) Violations and Range of Penalties.

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and 120.57(2), F.S., the

Board shall act in accordance with the

following dis ciplinary guidelines and shall

impose a penalty within the range

corresponding to the violations set forth

below. The verbal identification of

offenses are descriptive only; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

2 8 . Florida Administrative Code Rule 64B8 - 8.001(2) goes on

to provide, in pertinent part, t hat the penalty guideline for a

violation of Section 458.331(1)(c), Florida Statutes, where the

crime involves healthcare fraud in dollar amounts in excess of

$5,000 , is revocation of the license and an administrative fine

of $10,000.

2 9 . Florida Administrative Code Rule 64B8 - 8.001(3)

provides that, in applying the penalty guidelines, the following

aggravating and mitigating circums tances are to be taken into

account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to

injury or potential injury, physical or

otherwise: none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previously been committed

by the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged

with violating the standard of care pursuant

to Section 458.331(1)(t), F.S ., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating

factors.

30 . Dr. Zamora has correctly argued that there are

mitigating circums tances which should be considered: no patient

suffered actual or potential injury from any medical treatment ;

Dr. Zamora has no prior disciplinary history; he was only

involved in the conspiracy for a short period (although his

involvement was ended by th e Indictment); no controlled

substances were involved; and no violation of the standard of

care is involved. On the other hand, the pecunia ry gain to Dr.

Zamora was high and the harm to the public was great, given the

fact that he was required to make res titution of $221,726.96.

That is , money that he was personally responsible for defrauding

the public . Additionally, he engaged in a conspiracy in which

others bilked the public out of any greater sums of money.

Finally, his action erodes the public's co nfidence and trust in

Dr. Za mora , as well as the medical profession in general.

3 1 . In Petitioner's Proposed Recommended Order, the

Department has suggested that Dr. Zamora's license to practice

medicine be revoked and he be assessed a fine of $10,000.00 .

This recommendation is well within the guidelines and, but for

the imposition of the $10,000.00 fines, is appropriate in this

case, given Dr. Zamora's bet rayal of the public trust. A

$ 5 ,000.00 fine, given Dr. Zamora's restitution of the funds he

defraud ed from Medicare and his ultimate loss of livelihood as a

physician, is recommended.

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 E dgar Zamora , M.D., has violated

Section 458.331(1)(c), Florida Statutes (2005) , as described in

this Recommended Order; requiring that he pay an administrative

fine of $5,000.00; and revoking his license to practice medicine

in the State of Florida.

DONE AND ENTERED this 20th day of July , 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 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 20th day of July , 2007 .

COPIES FURNISHED:

Diane K. Kiesling

Assistant General Counsel

Office of the General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, F lorida 32399 - 3265

Benedict P. Kuehne , Esquire

S ale & Kuehne , P.A.

BankAmerica Tower, Suite 3550

100 Southeast Second Street

Miami, Florida 33331 - 2156

Larry McPherson, Executive Director

Board of Medicine

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

Depart ment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this r ecommended order should be filed with the agency that

will issue the final order in these cases.