12-002629PL Department Of Health, Board Of Medicine vs. Ramon A. Pichardo, M.D. Status: Closed Recommended Order on Friday, January 25, 2013.

Summary: Respondent's conviction for conspiracy to commit health care fraud relates to the practice of medicine or the ability to practice medicine. Recommend revocation of license and imposition of $10,000 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 12 - 2629PL

)

RAMON A. PICHARDO, M.D., )

)

Respondent. )

______________________________ __)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Edward T. Bauer, an Administrative Law Judge of the

Division of Admini str ative Hearings, on December 6 , 2012, by

video teleconference a t sites in Tallahassee and Miam i , Florida.

APPEARANCES

For Pet itioner: Laura L. Glenn, Esquire

Department of Health, Prosecution

Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Ramon A. Pichardo, M .D., pro se

15120 Southwest 10th Street

Miami, Florida 33194

STATEMENT OF THE ISSUE S

W hether Respondent committ ed the allegations contained in

the Administrative Complaint , and if so, the penalty that should

be imposed.

PRELIMINARY STATEMENT

On M arch 30, 2009, the Department of Health, Board of

Medicine ("Petitioner"), filed a one - count Administrative

Complaint ("Complaint") against Respondent, Ramon A. Pichardo.

In the Complaint, Petitioner alleges that Respondent entered a

plea to a crime that directly relates to the practice of

medicine or the ability to practice medicine, co ntrary to

section 458.331(1)(c), Florida Statutes. After a period of

delay, Respondent's request for a formal hearing was referred to

the Division of Administrative Hearin gs ("DOAH") on August 8,

2012. Thereafter, on December 5, 2012, Administrative Law Judge

John G. Van Laningham transferred the instant matter to the

undersigned to conduct further proceedings.

As noted above, the final hearing in this matter was he ld

on December 6 , 2012, during which Petitioner in troduced five

exhibits, numbered 1 - 5 . Res pondent testified on his own behalf

and introduced 13 exhibits, labeled 1 - 8, 10 - 11, and 13 - 15 .

The final hearing Transcript was f iled with DOAH o n

December 26 , 2 012 . Subsequently, on December 31, 2012, the

undersigned granted Petitioner's unopposed request to extend the

deadline for the submission of proposed recommended orders to

January 18, 2013. Both parties timely submitted proposed

recommended orders, which have been considered in the

preparation of this Recommended Order. 1 /

FINDINGS OF FACT

A. The Parties

1. Petitioner Department of Health has regulatory

jurisdiction over licensed physicians such as Respondent. In

particular, Petitioner is authorized to file and prosecute an

administrative complaint, as it has done in this instance, when

a panel of the Board of Medicine has found probable cause exists

to suspect that the physician has committed one or more

disciplinable offenses.

2. In or around 200 2, Petitioner issued Respondent a

restricted medical license that was thereafter converted, on

June 19, 2004, to an unrestricted license to practice medicine

in the State of Florida (number ME 90680).

B. Instant Allegations

3 . On May 22, 2008, Responde nt was indicted in the United

States District Court for the Southern District of Florida with

nine criminal charges, all but one of which were ultimately

dismissed.

4. Count T wo of the indictment ÏÏ to which a guilty plea was

later entered ÏÏ alleged that Re spondent , in violation of 18

U.S.C. § 1349, con spired with a fellow physi cian to commit

health care fraud, an offense prohibited by 18 U.S.C. § 1347.

In relevant part, Count Two provided :

COUNT 2

Conspiracy to Commit Health Care Fraud

(18 U.S.C. § 134 9)

1. Paragraphs 1 through 9 of the General

Allegations section of this Indictment are

realleged and incorporated by reference as

though fully set forth herein.

2. From in or around November 2002, through

in or around April 2004. . . the defendants,

CARLOS CONTRERAS

and

RAMON PICHARDO,

did knowingly and willfully combine,

conspire, confederate and agree with others,

known and unknown to the Grand Jury, to

violate Title 18, Untied States Code,

Section 1347, that is, to execute a scheme

and artifice to defraud a health care

benefit program . . . by means of materially

false and fraudulent pretenses,

representations, and promises, money and

property owned by, and under the custody and

control of, said health care benefit

program, in connection with the d elivery of

and payment for health care benefits, items,

and services.

PURPOSE OF THE CONSPIRACY

3. It was a purpose of the conspiracy for

CARLOS CONTRERAS, RAMON PI CHARDO, and their

co - conspirators to unlawfully enrich

themselves by, among other things, (a)

submitting false and fraudulent claims to

Medicare; (b) offering and paying cash

kickbacks and bribes to Medicare

beneficiaries for the purpose of such

beneficiaries arranging for the use of their

Medicare beneficiary numbers by the

conspirators as th e bases of claims filed

for HIV infusion therapy; (c) concealing the

submission of false and fraudulent claims to

Medicare, the receipt and transfer of the

proceeds from the frau d, the payment of

kickbacks; and (d) diverting proceeds of the

fraud for the p ersonal use and benefit of

the defendant s and their co - conspirators.

MANNER AND MEANS

4. The allegations in paragraphs 4 through

10 of the Manner and Means Section of Count

1 of this Indictment are incorporated as

though fully set forth herein as a

desc ription of the Manner and Means of this

conspiracy.

All in violation of Title 18, United States

Code, Section 1349.

(emphasis added).

5. As indicated above , Count Two of the indictment

incorporated the general allegat ions contained in paragraphs one

through nine of the charging instrument , as well as paragraphs

four through ten of the "Manner and Means" section of Count One.

Those incorporated paragr aphs alleged , in relevant part:

General Allegations

At all times relevant to this Indictment:

1. T he Medicare Program was a federal

health care program providing benefits to

persons who were o ver the age of 65 or

disabled. Medicare was administered by the

Centers for Medicare and Medicaid

Services ("CMS") . . . .

2. Medicare was a "health care ben efit

program," as defined by Title 18, United

States Code, Section 24(b).

3. "Part B" of the Medicare program paid

Medicare providers and suppliers for covered

goods and services, including medically

necessary Human Immunodeficiency Virus

("HIV") infusio n therapy, that were provided

and ordered by physicians, clinics, and

other qualified health care p roviders. . . .

4. Payments under the Medicare program were

often made directly to a provider of the

goods or services, rather than the

beneficiary. This occurred when the

provider accepted assignment of the right to

payment from the beneficiary. In that case,

the provider submitted the claim to Medicare

for payment, either directly or through a

billing company.

5. Physicians, clinics, and other health

care providers that provided services to

Medicare beneficiaries were able to apply

for and obtain a "provider number." A

health care provider who was issued a

Medicare provider number was ab le to file

claims . . . to obtain reimbursement for

servi ces prov ided to beneficiaries. . . .

6. C.N.C. Medical Corp. ("CNC Medical") was

a Florida corporation, purportedly doing

busin ess . . . [in] Miami, Florida. . . .

CNC Medical was a medical clinic that

purported to specialize in treating patients

with HIV by pr oviding infusion therapy.

From in or around November 2002 through in

or around April 2004, approximately $6.8

million in claims were submitted to the

Medicare program for HIV infusion services

allegedly rendered at CNC Medical.

7. Defendant Contreras, a resident of

Miami - Dade County, was a medical doctor who

purported to order and provide HIV infusion

services to Medicare beneficiaries at CNC

Medical. Contreras was also the president,

director, and registered agent of CNC

Medical.

8. Defendant RAMON PICHARDO, a resident of

Miami - Dade County, was a medical doctor who

purported to order and provide HIV infusion

services to Medicare beneficiaries at CNC

Medical.

9. From in or around November 2002 through

April 2004, CNC Medical submitted claims to

M edicare under the provider number of

[Respondent's co - defendant], which was

03813.

* * *

MANNER AND MEANS

The manner and means by which Carlos

Contreras, Ramon Pichardo, and their co -

conspirators . . . sought to accomplish the

objects and purpose o f the conspiracy

included, among other things as follows:

4. CARLOS CONTRERAS would cause the

establishment and incorporation of CNC

Medical in the State of Florida and serve as

president, director, and registered agent of

CNC Medical.

5. CARLOS CONTRE RAS would work as a

physician at CNC Medi cal, and be an

authorized signer on the CNC Medical bank

accounts.

6. RAMON PICHARDO would work as a physician

at CNC Medical.

7. CARLOS CONTRERAS, RAMON PICHARDO, and

their co - conspirators . . . would cause

u nnecessary tests to be ordered, medical

forms to be signed, and treatments to be

authorized to make it appear that legitimate

services were being provided to Medicare

beneficiaries at CNC Medical.

8. CARLOS CONTRERAS, RAMON PICHARDO, and

their co - conspir ators . . . would cause the

payment of cash kickbacks to Medicare

beneficiaries in exchange for the patients

signing documents at CNC Medical stating

that they had received the treatments that

were billed to Medicare, when those

treatments were not provide d and were not

medically necessary.

9. CARLOS CONTRERAS, RAMON PICHARDO, and

their co - conspirators . . . would cause the

submission of approximately $6.8 million in

claims to the Medicare program under the

provider number of CNC Medical, for services

t hat were never provided and services that

were not medically necessary.

10. After reimbursements from Medicare were

deposited into CNC Medical's bank accounts,

CARLOS CONTRERAS and his co - conspirators

. . . would cause to transfer approximately

$1.7 m illion to sham management, marketing

and investment companies owned and operated

by their co - conspirators, and approximately

$244,000 to other fraudulent HIV infusion

clinics owned and operated by their co -

conspirators.

6. On or about September 11, 20 08, Respond ent entered into

a plea bargain whereby he agreed to plead guilty to Count Two of

the indictment; in return, the government agreed to dismiss

Respondent's 11 remaining charges at the conclusion of the

sentencing process. Attached t o the written plea agreement is a

two - page statement signed by Respondent that, by its terms, was

made "knowingly and voluntarily and because [Respondent is] in

fact guilty of the c rimes charged." Consistent with the

allegations contained in the indictment, Respondent admitted

credibly in the statement, among other things, that he:

willfully conspired to commit health care fraud with Dr.

Contreras and other individuals; approved costly and medically

unnecessary HIV infusion treatments in furtherance of the

conspiracy; signed documents that contained false information

about treatments purportedly provided to beneficiaries; and

approved, in conjunction with Dr. Contreras, fraudulent medical

bills totaling approximately $6.8 millio n. Finally, Respondent

acknowledges in t he statement that approximately $4.2 million in

fraudulent claims were ultimately paid to CNC Medical by the

Medicare Program .

7. Subsequently, on November 20, 2008, was adjudicated

guilty of Count Two of the indictment and sentenced to a 48 -

month pri son term, to be followed by three years of supervised

release. In addition, Respondent was ordered to pay restitution

in the amount of $4.2 million.

CONCLUSIONS OF LAW

A. Jurisdiction

8 . DOAH has jurisdiction over the parties and subject

matter of this cause, pursuant to section 120.57(1), Florida

Statutes .

B. The Burden and Standard of Proof

9 . This is a disciplinary proceeding in which Petitioner

seeks to discipline Respondent's professional license .

Accordingly, Petitioner m ust prove the all egations contained in

Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Secs. & Investor Prot. v.

Osborne Sterne, Inc. , 670 So. 2d 932, 935 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 , 294 (Fla. 1987).

10 . Clear and convincing evidence:

[R]e quires 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 lacking in confusion as to the facts in

issue. The eviden ce must be of such a

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.

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

C. Petitioner's Authority to Impose Discipline;

The Charge Against Respondent

11 . Section 458.331(1), Florida Statutes, authorizes the

Board of Medicine to impose penalties ranging from the issuance

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

practice medicine in Florida if a physician commits one or more

acts specified therein.

12 . In t he Complaint, Pe titioner alleges that Respondent

is in violation of section 458.331(1)(c), Florida Statutes,

which provides:

(1) The following acts constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2):

* * *

(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 .

(emphasis added).

13 . Pursuant to the findings of fact contained herein,

Petitioner has adduced clear and convincing evidence that

Respondent pleaded guilty to, and was ultimately co nvicted of,

one count of conspiracy to commit health care fraud. To

determine whether this conviction renders Respondent subject to

dis ci pline , the unders igned need look no further than Doll v.

Department of Health , 969 So. 2d 1103 (Fla. 1st DCA 2007),

wh erein the court held that a chiropractor's guilty plea to

conspiracy to defraud a health beneficiary program related to

the practice of medicine or the ability to practice medicine.

The First District explained :

Several cases demonstrate that, although th e

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Regulation , the court affirmed

the revoc ation of a medical doctor's license

after the doctor was convicted of

solicitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987) . The

Fifth District Court of Appeal has held that

although an accountant's fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts di d justify revocation

of the accountant's license for being

convicted of a crime that directly relates

to the practice of public accounting. Ashe

v. Dep't of Prof'l Regulation, Bd. of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Dep artment of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to the

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984) . These

cases demonstrate, in our view, that

appellee did not err by concluding Doll's

conviction was "related to" the practice of

chiropractic medicine or the ability to

practice chiropractic medicine. We

therefore affirm appellee's actions finding

appellant in violation of sect ion

456.072(1)(c) and revoking appellant's

license.

969 So. 2d at 1006; see also Dep't of Health v. Zamora , Case No.

07 - 1454PL , 2007 Fla. Div. Adm. Hear. LEXIS 405 , *24 (Fla. DOAH

July 20, 2007; Fla. DOH Oct. 19 , 2007)(concluding that

physician's convict ion for conspiracy to commit health care

fraud related to the practice of medicine or the ability to

practice medicine).

14 . It is concluded, pursuant to the reasoning expressed

in Doll , that Respondent's crime ÏÏ a scheme to defraud the

Medicare Progr am of millions of dollars through the approval of

unnecessary treatments and the submission of fraudulent

claims ÏÏ relates to the practice of medicine or the ability to

practice medicine. Accordingly, Petitioner is guilty of

violating section 458.331(1)(c ), as charged in Count One of the

Complaint. 2 /

D . Penalty

15 . In determining the appropriate punitive action to

recommend in this case, it is necessary to consult the Board of

Medicine's disciplinary guidelines, which impose restrictions

and limit ations on the exercise of the Board's disciplinary

authority under section 458.331. See Parrot Heads, Inc. v.

Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34 (Fla. 5th

DCA 1999).

16. Florida Administrative Code Rule 64B8 - 8.001(2 )(c)1.

calls for th e revocati on of a physician's license (as well as

the imposition of a $10,000 fine) where, as in the instant case,

the licensee is guilty of a crime that relates to health care

fraud "in dollar amounts in excess of $5,000." See also Dep't

of Health v. Zam ora , Case No. 07 - 1454PL, 2007 Fla. Div. Adm.

Hear. LEXIS 405 (Fla. DOAH July 20, 2007; Fla. DOH Oct. 19,

2007)(applying rule 64B8 - 8.001(2)(c)1. where physician was

convicted of conspiracy to commit health care fraud and the

amount of loss exceeded $5,000).

17 . Rule 64B8 - 8.001(3) provides that, in applying the

penalty guidelines, the foll owing aggravating and mitigating

circumstances may be taken into account:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

no ne, 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 commi tted 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 licens ee 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 mit igating factors.

18. Notwithstanding Respondent's lack of disciplinary

history and the apparent absence of legal constraints at the

time of the offense, the revocation of his medical license (and

the imposition of a $10,000 fine) is the only appropriate

pena lty in light of the alarming breath and scope of the

criminal conspiracy in which he participated .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by th e

Board of Medici ne :

1. Finding that Respondent violated s ection 458.331(1)(c ) ,

Florida Statutes, as charged in Count One of the Complaint ;

2. Revoking Respondent's license to practice medicine; and

3 . I mposing a fine of $1 0 , 000 .

DONE AND ENTERED this 25 th day of January, 2013 , in

Tallahassee, Leon County, Florida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Divisio n 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 25 th day of January, 2013 .

EN DNOTES

1 / Unless otherwise noted, all statutory and rule citations are

to the versions in effect on the date of Respondent's criminal

conviction.

2 / In urging the undersigned to recommend the dismissal of the

Compl aint, Respondent argues: (1) that his conviction falls

outside the ambit of section 458.331(1)(c) because he pleaded

guilty to conspiracy to commit health care fraud, as opposed to

health care fraud; (2) that the Complaint is untimely pursuant

to section 95.11, Florida Statutes, because it was filed more

than two years after his conviction; and (3) that the doctrine

of laches and/or the time limitations contained in section

456.073, Florida Statutes, bar Petitioner from proceeding with

this cause. The fi rst ar gument is, of course, a nonstarter in

light of the First District's holding in Doll . Respondent's

second contention is likewise without merit, as courts have

repeatedly held that the criminal or civil limitations periods,

such as those found in sect ion 95.11, are inapplicable in

administrative license revocation proceedings. Hames v. City of

Miami Firefighters' & Police Officers' Trust , 980 So. 2d 1112,

1116 (Fla. 3d DCA 2008)("Florida courts, however, have

consistently refused to apply the limitati ons periods contained

in chapter 95 to administrative disciplinary proceedings.").

Finally, while the defense of laches does not apply in

administrative licensure matters, see Farzad v. Department of

Professional Regulation , 443 So. 2d 373, 375 - 376 (Fla. 1st DCA

1983), a procedural delay contrary to statute (e.g., section

456.073) can, under limited circumstances, warrant the dismissal

of a disciplinary action. See Carter v. Dep't of Prof'l Reg. ,

633 So. 2d 3, 5 (Fla. 1994)("[T]o obtain dismissal a licens ee

must show (1) a violation of the time limits in section 455.225,

and (2) that the resulting delay may have impaired the fairness

of the proceedings or the correctness of the action and may have

prejudiced the licensee."). Even assuming, arguendo, that

Petitioner violated the time requirements of section 456.073,

Respondent has failed to demonstrate how his defense has been

impaired in any fashion. Accordingly, any improper procedural

delay is harmless under the circumstances. Id. at 6 ("[C]ourts

have consistently applied the harmless error rule when reviewing

agency action resulting from a procedural error.").

COPIES FURNISHED :

Laura L. Glenn, Esquire

Department of Health, Prosecution

Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Flo rida 32399 - 3265

Ramon A. Pichardo, M.D.

15120 Southwest 10th Street

Miami, Florida 33194

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

Allison Dudley, Executive Director

Bo ard of Medicine

Department of Health

4052 Bald Cypress Way

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

except ions to this recommended order must be filed with the

agency that will issue the final order in this case.