11-001272PL Department Of Health, Board Of Physical Therapy vs. Marly Delis Cueto, P.T. Status: Closed Recommended Order on Tuesday, July 19, 2011.

Summary: Respondent was convicted of a crime which directly relates to the practice of physical therapy and failed to timely report the conviction. She was also terminated from the Medicaid program. For these offenses, discipline is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PHYSICAL THERAPY PRACTICE , )

)

Petitioner, )

) Case No s . 1 1 - 1271 PL

vs. ) 11 - 1272PL

)

MARLY DELIS CUETO , P.T . , )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van

Laningham for final hearing by video teleconference on May 17 ,

2011, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Greg S. Marr , Esquire

John B. Fricke , Esquire

S. J. DiConcilio, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: James M. Barclay, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

106 East College Avenue, Suite 600

Tallahassee , Florida 32516

Javier Talamo, Esquire

Kravitz & Talamo, LLP

7600 West 20th Avenue, Suite 213

Hialeah, Florida 33016 - 1894

STATEMENT OF THE ISSU ES

The issue s in this case are whether Respondent: (a) was

c onvicted of a crime which directly relates to the practice of

physical therapy; (b) failed to timely report a criminal

conviction to the Board of Physical Therapy Practice; and (c)

was terminated from the Medicaid program, as Petitioner has

alleged; and, i f one or more of these allegations are

established, whether the Board should impose discipline on

Respondent's physical therapy license within the applicable

penalty guidelines or take some other action.

PRELIMINARY STATEMENT

On October 21 , 200 9 , Petit ioner Department of Health issued

a two - count Administrative Complaint against Respondent Marly

Delis Cueto, P.T. The Department alleged that Ms. Cueto had

been convicted of a crime which directly relate s to the practice

of physical therapy, and that she had failed to report this

conviction to the Board of Physical Therapy Practice within 30

days after it occurred, as the law requires. On April 21, 2010,

the Department issued a second Administrative Complaint against

Ms. Cueto, in which she was charged wi th having been terminated

for cause from further participation as an enrolled Medicaid

provider.

In response to each complaint, Ms. Cueto timely requested a

formal h earing , and on March 11, 2011 , the Department filed the

pleadings with the Division of Admi nistrative Hearings . Upon

receipt, the matters were docketed, respectively, as Case Nos.

11 - 1271PL (involving the two - count complaint) and 11 - 1272PL

(involving the one - count complaint), and an Administrative Law

Judge was assigned to preside in them . By order dated March 28,

2011, these two cases were consolidated for all purposes,

including the final hearing.

The final hearing took place as scheduled on May 17, 2011,

with both parties present. The Department called as witnesses

Michael R. Coleman, Jenn ifer Wenhold, Horace L. Dozier, and

William S. Quillen, Ph.D . In addition, Petitioner ' s Exhibits 1

through 4 and 7 wer e received in evidence. 1 (Petitioner's

Exhibit 5 was not offered and those identified as 2A and 6 were

withdrawn.)

Ms. Cueto testified on h er own behalf and presented no

other witnesses. Respondent's Exhibits 1 through 7 were

admitted into evidence .

The one - volume final hearing transcript was filed on

June 1 1 , 2011 . The time for submitting p roposed r ecommended

o rders was enlarged to June 30, 2011, on Ms. Cueto's unopposed

motion . Each party met this deadline, and their respective

Proposed Recommended Order s have been considered .

FINDINGS OF FACT

1 . At all times relevant to this case, Respondent Marly

Delis Cueto ("Cueto"), P.T ., w as licensed as a physical

therapist in the s tate of Florida .

2. Petit ioner Department of Health (" Department " ) has

regulatory jurisdiction over licensed physical therapists such

as Cueto . In particular, the Department is authorized to file

and prosecu te an administrative complaint against a physica l

therapist , as it has done in this instance, when a panel of the

Board of Physical Therapy Practice ("Board") has found that

probable cause exists to suspect that the therapist has

committed a disciplinable offense. Exercising its prosecutorial

authority, t he Department has charged Cueto with three such

offense s , namely, being convicted of a crime which directly

relates to the practice of physical therapy; failing to report

this conviction to the Board; and being terminated from the

state Medicaid program .

3 . It is undisputed that, on November 5, 2008 , in a case

styled State of Florida v. Cueto , No. 08 - 16209CF10A , the Circuit

Court of the Seventeenth Judicial Circuit, in and for Broward

County, Florida , a ccepted Cueto's plea of nolo contendere to the

single count of grand theft (a third - degree felony) with which

she had been charged; withheld adjudication of guilt; and

sentenced her to a term of two years' probation with special

conditions. The conditions were that Cueto pay the Agency for

Health Care Administration ("AHCA") $28,000 as restitution to

the Medicaid program, from which she had stolen funds; and that

she relinquish her Medicare and Medicaid provider numbers while

on probation.

4. Cueto did n ot explain the reasons for, and

circumstances surrounding , her plea of nolo contendere. There

is , at bottom, no persuasive evidence in the record upon which

to base any findings of an exculpatory nature concerning the

underlying criminal charge for which Cueto was sentenced.

Where, as here, there is insufficient proof of objectively

reasonable grounds for entering a plea of no contest, which are

consistent with innocence, the undersigned presumes that the

licensee entered the plea because of a guilty cons cience or in

surrender to overwhelming odds of conviction. Thus, it is

determined that Cueto's plea of nolo contendere constituted a

conviction.

5 . T he conduct which gave rise to Cueto 's conviction is

relevant only for the limited purpose of determining whether the

crime directly relates to the practice of physical therapy . In

this regard, the undersigned finds that during the period from

January 1, 2007 to April 22, 2008, Cueto ÏÏ who, as a licensed

physical therapist, was an enrolled Medicaid provider ÏÏ k nowingly

and intentionally submitted multiple claims to the Florida

Medicaid program for physical therapy services that she had not

actually rendered, on which false claims she was paid at least

$28,000 to which she was not entitled. It is determined that

Cueto was convicted of a crime which directly relates to the

practice of physical therapy.

6. Cueto did not report to the Board that fact that she

had pleaded nolo contendere to a crime, as she was legally

required to do within 30 days after entering the plea.

7. On September 30, 2009, AHCA entered a Final Order

terminating Cueto from participation as a provider in the

Florida Medicaid program. AHCA imposed this sanction against

Cueto pursuant to Florida Administrative Code Rule 59G - 9.070 (8)

(2008) ÏÏ a s it was authorized to do under section 409.913 (13) ,

Florida Statutes (2009) ÏÏ because she had been convicted of grand

theft on November 5, 2008. As of the final hearing in this

case, Cueto had not been reenrolled as a Medicaid provider.

CONCLUSIONS OF LA W

8 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

s ections 120.569, and 120.57(1), Florida Statutes (201 1 ) .

9 . A proceeding, such as this one, to suspend, revoke, or

impose other disc ipline upon a license is penal in nature.

State ex rel. Vining v. Fl a . Real Estate Comm ' n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Cueto by clear and

convincing evidence. Dep ' t of Banking & Fin., Div. of Sec. &

Investor Prot . v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep ' t of Bus . & Pro f ' l Reg . , Bd. of Med . ,

654 So. 2d 205, 207 (Fla. 1st DCA 1995).

10 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a " workable definition of clear and convincing

evidence " and found that of necessity such a definition would

need to contain " both qualitative and quantitative standards. "

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

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 a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomow itz test, adding the

interpretive comment that " [a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fl a. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

11 . In Count One of the Administrative Complaint which

initiated Case No. 11 - 1271PL , the Department charged Cueto under

s ection 4 86.125 (1)(c), Florida Statutes (2008) , 2 which p rovides

in pertinent part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action . . . :

* * *

(c) Being convicted or found guilty of, or

entering a plea of nolo contendere to,

rega r dless of adjudicat ion, a crime in any

jurisdiction which directly relates to the

practice of physical therapy or to the

ability to practice physical therapy . The

entry of a plea of nolo contendere shall be

considered a conviction for purpose [ sic ] of

this chapter.

1 2 . The evidence prove s clearly and convincingly that

Cueto entered a plea of nolo contendere to a crime that is

directly relate d to the practice of physical therapy . She was

not tried and found guilty of the crime, however, nor was she

adjudicated guilty of grand theft.

1 3 . Generally speaking, "[i]n the eyes of the law a person

is not deemed to have committed a crime until an adjudication of

guilt has been entered against him." Holland v. Fla. Real

Estate Comm'n , 352 So. 2d 914, 916 (Fla. 2d DCA 1977)(real

estate agent who had pleaded nolo contendere to, and been found

guilty of, the felony charge of gross fraud could not

subsequently be disciplined for having "[b]een guilty of a

crime" because the court had withheld adjudication). Section

4 8 6 .125 (1)(c) at tempts to override this general principle by

equating a no contest plea with a conviction.

14 . In Ayala v. Dep't of Prof'l Reg. , 478 So. 2d 1116

(Fla. 1st DCA 1985), the court considered the question of

whether section 458.331(1)(c), Florida Statutes (198 3) ÏÏ to which

section 460.413(1)(c) is ide ntical except that it refers to the

practice of physical therapy instead of medicine ÏÏ was

unconstitutional for creating a conclusive presumption of guilt

on the predicate fact of a no contest plea. Rather than deci de

the constitutional issue, however, the court instead elected to

interpret the statute in a way that would "allow it to withstand

constitutional attack." Id. at 1118. Announcing its holding,

the court wrote:

We find that section 458.331(1)(c) is

clearl y constitutional by construing the

word "shall" in the last sentence of that

subsection as permissive rather than

mandatory in meaning. Rich v. Ryals , 212

So. 2d 641, 643 . As so construed, the Board

of Medical Examiners may presumptively

consider the nol o contendere plea as

evidence of a conviction for purposes of

chapter 458; however, in accordance with the

Supreme Court's opinion in The Florida Bar

v. Lancaster , 448 So. 2d 1019 , the Board

must allow appellant the opportunity to

rebut this presumption an d assert his

innocence of the underlying criminal charges

by explaining the reasons and circumstances

surrounding his plea of nolo contendere, and

thereby attempt to convince the Board that

he is not guilty of a crime in violation of

the provisions of sect ion 458.331(1)(c) .

The Board must consider this evidence in

deciding appellant's guilt or innocence for

purposes of the disciplinary charges. Such

explanation may, of course, always be

considered in mitigation of punishment if

appellant should be adjudic ated guilty by

the Board.

Id. at 1118 - 19. See also Dep't of Health v. Higginbotham , Case

No. 10 - 2796PL, 2011 Fla. Div. Adm. Hear. LEXIS 106 ( Fla. DOAH

May 11, 2011).

15. Ayala says , in short, that the Department is entitled

to rely on a presumption , which arises from the no contest plea,

that the respondent was convicted of a crime for which

administrative discipline may be imposed. The presumption is

rebuttable, however, and thus the respondent must be allowed to

"assert his innocence" of the crim e ÏÏ not, significantly, by

proving his innocence (although the option of proving that his

conduct did not violate the criminal law should be open to the

respondent), but rather by proving the circumstances surrounding

his plea and the reasons for entering s uch a plea, which

evidence then must be considered in determining whether the

respondent is guilty of the disciplinable offense.

16. As a matter of fact, as found above, Cueto failed to

rebut the Ayala presumption. The evidence shows clearly and

convi ncingly that she was in fact "convicted" of a crime which

directly relates to the practice of physical therapy.

Therefore, Cueto is guilty of the offense described in s ection

486.125 (1)(c).

17. In Count Two of the Administrative Complaint which

initiate d Case No. 11 - 1271PL , the Department charged Cueto under

s ection 456.072(1)(x ), Florida Statutes (2008), which states as

follows:

Failing to report to the board, or the

department if there is no board, in writing

within 30 days after the licensee has been

convicted or found guilty of, or entered a

plea of nolo contendere to, regardless of

adjudication, a crime in any jurisdiction

[shall constitute grounds for discipline] .

Convictions, findings, adjudications, and

pleas entered into prior to the enactment o f

this paragraph must be reported in writing

to the board, or department if there is no

board, on or before October 1, 1999.

Cueto failed to report her conviction to the Board as required.

She is therefore guilty of the offense described in s ection

456.0 72(1)(x ) .

18. In the Administrative Complaint which initiated Case

No. 11 - 1272PL , the Department charged Cueto under s ection

456.072(1)(kk ), Florida Statutes (2009), which provides:

Being terminated from the state Medicaid

program pursuant to s. 409.913, any other

state Medicaid program, or the federal

Medicare program [shall constitute grounds

for discipline], unless eligibility to

participate in the program from which the

practitioner was terminated has been

restored.

Cueto was in fact terminated from the state Medicaid program

pursuant to section 409.913, and she had not been reenrolled

therein at the time of the final hearing in this case. She is

therefore guilty of the offense defined in s ection

456.072(1)(kk ), Florida Statutes (2009).

19. Cueto c ontends that she was not terminated from

Medicaid "for cause" as the Department has alleged. S ection

456.072(1)(kk ) does not require, as a prerequisite to imposing

discipline, that the Medicaid provider have been terminated for

cause. Nevertheless, Cueto was terminated for cause, that being

her conviction for grand theft, which crime relates to the

practice of physical therapy. At the time AHCA terminated

Cueto's participation as an enrolled provider, the penalty

guidelines then in effect for violations of Medicaid - related

laws required that the sanction of termination be imposed for a

violation of section 409.913(13 ) (b) , which statute directs AHCA

to immediately terminate the participation of a Medicaid

provider who has been convicted of a crime relating to the

practice of the provider's profession. See Fla. Admin Code R.

59G - 9.070(8)(a)2. (2008). The same rule defined "termination"

as "a twenty - year preclusion from any action that results in a

claim for payment to the Medicaid program as a result of

fu rnishing, supervising a person who is furnishing, or causing a

person to furnish goods or services." Fla. Admin Code R. 59G -

9.070(2)(y).

20. The Department might have alleged that Cueto's

termination had been for cause because under the Board's current

disciplinary guidelines, which took effect on June 30, 2010, a

termination for cause from the Medicaid program warrants a

harsher penalty than does a termination "not . . . for cause."

Fla. Admin. Code R. 64B17 - 7.001(1)(ff)(2010). Although this

Board rul e does not define "cause," AHCA's current disciplinary

guidelines, which became effective on September 7, 2010, provide

that a "termination pursuant to this rule is also called a 'for

cause' or 'with cause' termination." Fla. Admin. Code R. 59G -

9.070(3)(p )(2010). Neither rule , however, applies in this case,

which must be decided under the disciplinary guidelines in

effect at the time the offense was committed. See Orasan v. Ag.

for Health Care Admin. , 668 So. 2d 1062, 1063 (Fla. 1st DCA

1996); Willner v. Dep't of Prof'l Reg. , 563 So. 2d 805, 806

(Fla. 1st DCA 1990).

21. Cueto was convicted of a crime relating to the

practice of physical therapy in November 2008. Under the then

applicable disciplinary guidelines, t he range of penalties for a

first o ffense involving s ection 48 6 . 125 (1)(c) , when the

underlying crime was a felony, is from " a minimum of fine of

$5,000 and two years probation, up to a fine of $10,000 and/or

revocation . " Fla. Admin. Code R. 64B17 - 7.001(1)(c)(2007).

22. Cueto's failure to report her conviction to the Board

within 30 days occurred in December 2008. Under the then

applicable disciplinary guidelines, t he range of penalties for a

first offense involving s ection 4 56 . 072(1)(x) is "from a minimum

fine of $1,000 and/or a letter o f concern, up to a maximum fine

of $3,000 and/or one month suspension of license followed by two

years of probation." Fla. Admin. Code R. 64B17 -

7.001(1)(x)(2007).

23. Cueto was terminated from the Medicaid program in

September 2009. Rule 64B17 - 7.001 (20 07), which was in effect at

that time, does not prescribe a punishment for the offense

defined in section 456.072(1)(kk ), Florida Statutes (2009).

Cueto can be sanctioned for this offense, however, through

section 486.125(1)(k), Florida Statutes (2009), w hich , as the

Department alleged in the Administrative Complaint, provides

that a violation of chapter 456 is grounds for discipline.

24. Under the disciplinary guidelines in effect in

September 2009, t he range of penalties for a first offense

involving s e ction 486.125(1)(k) is "from a minimum fine of

$1,000 and/or a letter of concern, up to a maximum fine of

$5,000 and/or suspension of license for two years followed by

two years of probation." Fla. Admin. Code R. 64B17 -

7.001(1)(x)(2007).

2 5 . Rule 64B17 - 7 .001(2)(2007) provides that, in applying

the penalty guidelines, the following aggravating and mitigating

circumstances are to be taken into account:

( a) The danger to the public;

(b) The number of distinct charges;

(c) The actual damage, physical or

ot herwise, to the patient(s);

(d) The length of time since the date of

the last violation(s);

(e) The length of time that the licensee

has held a license in any jurisdiction;

(f) The deterrent effect of the penalty

imposed;

(g) Rehabilitation efforts of the licensee

including remorse, restitution, and

corrective action(s);

(h) The effect of the penalty on the

licensee ' s livelihood;

(i) Efforts of the licensee to report or

stop violations or the failure of the

licensee to correct or stop violations;

(j) The willfulness and/or negligence of

the licensee pertaining to any violation;

(k) Any other mitigating or aggravating

circumstances.

The undersigned concludes that consideration of the aggravating

and mitigating factors leads to a wash . Thus, an appro priate

penalty should fall squarely within the prescribed range.

26 . The Department has propose d that Cueto's license be

revoked and that s he be required to pay an administrative fine of

$10,000 . Although t his penalty comes within the applicable

range o f penalties and hence is within the Board's discretion to

impose, it is harsher than necessary to protect the public .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Physical Therapy

Practi ce enter a final order finding Marly Delis Cueto guilty of

the offense described in s ection 48 6.125 (1)(c), Florida

Statutes , i.e., being convicted of a crime that directly rela te s

to the practice of physical therapy; guilty of the offense

defined in sectio n 456.072(1)(x), namely failing to timely

report a criminal conviction to the Board; and guilty of the

offense defined in section 486.125(1)(k), in consequence of

having been terminated from the Medicaid program, which latter

constitutes a disciplinable of fense under section

456.072(1)(kk) . It is further RECOMMENDED that the Board impose

an administrative fine of $1 4 ,000 and suspend Cueto's physical

therapy license for two years, to be followed by two years of

probation on such reasonable terms and conditi ons as the Board

establish es , which may include the requirement that Cueto pay in

full the $28,000 she has been ordered to remit to AHCA as

restitution of the stolen funds .

DONE AND ENTERED this 19th day of Ju ly , 20 1 1 , in

Tallahassee, Leon County, Florid a.

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 SUNCOM 278 - 9675

Fax Filing (850) 921 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of Ju ly , 20 1 1 .

ENDNOTES

1 / Petitioner's Exhibit 7 is Dr. Quillen's curriculum vitae,

which the Department was permitted to submit after the final

hearing. Before filing this CV, the Department had marked it

for identification as Petitioner's Exhibit 1. The undersigned

renumbered the document so that no two Petitioner's Exhibits

would bear the same number.

2 / Additionally, or in the alternative, the Department charged

Cueto under section 486.125(1)(k)(violating any provision of

chapter 486 or chapter 456 subjects licensee to pu nishment),

alleging that her no contest plea was disciplinable pursuant to

section 456.073(1)(c), which m akes it an offense to enter a plea

of guilty or nolo contendere to a crime relating to the practice

of the licensee's profession. The undersigned need not decide

in this case whether it is legally permissible to charge a

physical therapist under section 4 56.073(1)(c) ÏÏ a general

statute which applies without apparent limitation to all

licensed health care providers ÏÏ as an alternative to charging

the therapist under section 486.125(1)(c), which is a specific

statute applicable only to licensed physical thera pists. See

B.D.M. Fin. Corp. v. Dep't of Bus. & Pro f 'l Reg. , 698 So. 2d

1359, 1362 (Fla. 1st DCA 1997)(agency erred in revoking

registration under statu t e generally authorizing "affirmative

action" to enforce law because another statute having more

rigoro us criteria specifically addressed revocations); Sheils v.

Jack Eckerd Corp. , 560 So. 2d 361, 363 (Fla. 2d DCA 1990)(in

action against pharmacy for damages, shorter limitation period

specifically applicable to professional malpractice claims

controlled ove r longer period governing products liability

actions generally because "where a general law that applies to

numerous classes of cases conflicts with the law that applies

only to a particular class, the latter, or more specific law,

generally controls . . . ."). The outcome here happens to be

the same under either section. At any rate, moreover, Cueto's

criminal conviction constitutes but a single disciplinable "act"

for which she cannot fairly receive multiple administrative

punishments. Cf. Syder v. Sta te , 921 So. 2d 871, 873 (Fla. 4th

DCA 2006)(Double Jeopardy Clause prohibits the government from

securing multiple criminal convictions based on same conduct).

COPIES FURNISHED :

Greg S. Marr , Esquire

John B. Fricke , Esquire

S. J. DiConcilio, Esquire

Department of Health

4052 Bald Cyp ress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

James M. Barclay, Esquire

Clark, Partington, Hart, Larry,

Bond & Stackhouse

106 East College Avenue, Suite 600

Tallahassee, Florida 32516

Javier Talamo, Esquire

Kravitz & Talamo, LLP

7600 West 20th Avenue, Suite 213

Hialeah, Florida 33016 - 1894

Allen Hall , Executive Director

Board of Physical Therapy Practice

40 5 2 Bald Cypress Way , Bin C - 05

Tallahassee, Florida 32399 - 3255

Nicholas W. Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

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 Recommended Order should be file d with the agency that

will issue the Final Order in this case.