12-003688PL Department Of Health, Board Of Medicine vs. Grigory Kliger, M.D. Status: Closed Recommended Order on Tuesday, April 9, 2013.

Summary: Respondent was convicted of conspiracy to commit health care fraud, a crime which directly relates to the practice of medicine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

) Case No. 12 - 3688PL

vs. )

)

GRIGORY KLIGER, M.D. , )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

January 2, 2013.

APPEARANCES

For Petitioner: Yol o nda Y. Green, Esquire

Robert A. Milne, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Mark L. Pomeranz, Esquire

Pomeranz & Associates, P.A.

1920 East Hallendale Beach Boulevard

Suite #802

Hallendale Beach, Florida 33009

STATEMENT OF THE ISSUES

The primary issue in this case is whether the crime of

which Respondent was convicted directly relates to t he practice

of medicine or the ability to practice. If so, it will be

necessary to determine an appropriate penalty.

PRELIMINARY STATEMENT

On March 25, 2011, Petitioner Department of Health

("Department") issued an Administrative Complaint against

Res pondent Grigory Kliger, M.D. The Department alleged that Dr.

Kliger had been convicted of a crime which directly relates to

the practice of medicine. Dr. Kliger timely requested a formal

hearing, and on November 15, 2012, the Department filed the

pleadin gs with the Division of Administrative Hearings, where an

Administrative Law Judge was assigned to preside in the matter.

The final hearing took place on January 2, 2013. Both

parties appeared through counsel. Dr. Kliger himself, however,

was not presen t. The Department called two witnesses: Jennifer

L. Friedberg, Esquire; and Saundre D. Wilson. In addition,

Petitioner's Exhibits 1 through 8 were received in evidence.

Dr. Kliger presented no witnesses. Respondent's Exhibits 1 and

2 were admitted int o evidence.

The one - volume final hearing transcript was filed on

January 31, 2013. Accordingly, Proposed Recommended Orders were

due, pursuant to the time frame agreed upon at the conclusion of

the hearing, on March 4, 201 3. On the Department's moti on,

however, that deadline was enlarged to March 25, 2013.

Dr. Kliger the reafter sought, and was granted, an additional

extension of time; his Proposed Recommended Order was due on

March 29, 2013. The parties' respective Proposed Recommended

Orders have been considered.

On March 8, 2013, the Department filed a Motion to Reopen

Record, which was granted on March 18, 2013. Petitioner's

Exhibits 9 - 1 2 were filed on March 20, 2013; it is hereby ORDERED

that these exhibits are admitted into evidence.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2008 Florida Statutes.

FINDINGS OF FACT

1. At all times relevant to this case, Grigory Kliger ,

M.D., was licensed to practice medicine in the state of Florida,

having been issu ed license number ME82106.

2. Petitioner has regulatory jurisdiction over licensed

physicians such as Dr. Kliger. In particular, the Department is

authorized to file and prosecute an administrative complaint

against a physician, as it has done in this instance, when a

panel of the Board of Medicine has found that probable cause

exists to suspect that the physician has committed a

disciplinable offense. Exercising its prosecutorial authority,

the Department has charged Dr. Kliger with one such offense,

namely, being found guilty of a crime which directly relates to

the practice of medicine.

3. On February 1, 2005, in a case styled United States v.

Kliger , No. 05 - CR - 12, which was then pending in the U.S.

District Court for the Eastern District of New York, Dr. Kliger

pleaded guilty to one count of a single - count information. The

criminal offense with which he had been charged was conspiracy

to commit health care fraud as defined in sections 1347 and 1349

of Title 18 of the U.S. Code.

4. During the plea colloquy, Dr. Kliger testified under

oath as follows regarding his criminal conduct:

Between 1996 and June 2003, I knowingly and

willfully agreed with others to defraud no -

fault insurance companies which provided

healthcare benefit programs that effe cted

[sic] interstate commerce.

* * *

I was a doctor and had an ownership interest

in several medical clinics, including

medical clinics in Brooklyn, Queens and the

Bronx, New York and elsewhere which

submitted false claims to insurance

compani es for medical benefits, items and

services that were never performed or

delivered, were not ordered by a physician

or were not necessary for treatment.

When I caused this [sic] false claims to be

submitted and reimbursed by the insurance, I

knew watt [si c] I was doing was wrong.

The magistrate judge found that Dr. Kliger's testimony was given

knowingly and voluntarily and that there was an adequate factual

basis for his plea; she recommended that the district judge

accept Dr. Kliger's plea of guilty.

5. Some time later, the court accepted the plea and, based

thereon, adjudicated Dr. Kliger guilty as charged, entering a

judgment of conviction on or about August 1, 2008. The judgment

was later amended at least twice, most recently on March 13,

2012, to c orrect the spelling of Dr. Kliger's last name, which

had been inscribed erroneously as "Kligor."

6. Based on this conviction, the court sentenced Dr.

Kliger to a term of 18 months' incarceration in a federal

prison, to be followed by three years of super vised release with

special conditions. In addition, Dr. Kliger was ordered to make

restitution to the various insurance companies and clinics he

had conspired to defraud. The total amount of the required

restitution payments is approximately $2.5 million .

7. The crime of which Dr. Kliger was convicted is directly

related to the practice of medicine .

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

sections 120. 569, and 120.57(1), Florida Statutes (2012).

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

impose other discipline upon a license is penal in nature.

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

491 (Fla. 1973). According ly, to impose discipline, the

Department must prove the charges against Dr. Kliger 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. Turling ton , 510 So. 2d 292, 294 - 95

(Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Regulation, Bd. of

Medicine , 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 evid ence 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 wei ght 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 Slomowitz test, adding the

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

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

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

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

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

11. In the Administrative Complaint, the Department

charged Dr. Kliger under section 458.331(1)(c), Florida

Statutes, which provides 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,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

practice of medicine or to the ability to

practice medicine.

12. In Doll v. Department of Health , 969 So. 2d 1103, 1106

(Fla. 1st DCA 2007), the court held that the crime of conspiring

to defraud a health beneficiary program relate s to the practice

of chiropra c tic medicine or the ability to practice, explaining:

Several cases demonstrate that, although the

st atutory 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 revocatio n 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 d id not relate to his

technical ability to practice public

accounting, the acts did 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. Department 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 aff irm appellee's actions finding

appellant in violation of section

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

license.

969 So. 2d at 1006; see also Dep't of Health v. Pichardo , Case

No. 12 - 2629PL, 2013 Fla. Div. Adm. Hear. LEXIS 29 , *12 - *14 (Fla.

DOAH Jan. 25, 2013) )(conspiracy to commit health care fraud

relates to the practice of medicine or the ability to practice

medicine); accord Dep't of Health v. Zamora , Case No. 07 - 1454PL,

2007 Fla. Div. Adm. Hear. LEXIS 405, *21 - *22 (Fla. DOAH July 20,

2007; Fla. DOH O ct. 18, 2007).

13. The evidence proves clearly and convincingly that

Dr. Kliger was convicted of a crime that directly relates to the

practice of medicine. Therefore, Dr. Kliger is guilty of the

offense described in section 458.331(1)(c).

14. The Bo ard of Medicine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B8 - 8.001 (2007). For a first

first - time offender found guilty of the offense defined in

section 458.331(1)(c) whose criminal conviction involved

" healthcare fraud in dollar amounts in excess of $5,000.00 , " the

prescr ibed penalty is "[r] evocation . . . and a fine of

$10,000.00 . " Fla. Admin. Code R . 64B8 - 8.001(2)(c)1.

15. Rule 64B8 - 8.001(3) provides that, in appl ying the

penalty guidelines, the following aggravating and mitigating

circumstances 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 deat h;

(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 applic ant;

(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

violatin g 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.

16. The u ndersigned does not find cause to deviate from the

guideline and therefore recommends that the Board of Med i cine

impose a penalty that falls within the recommended range.

17. The Department proposes that Dr. Kliger's license be

revoked and that he be req uired to pay an administrative fine of

$10,000 . This penalty matches the applicable guideline and is

appropriate under the facts and circumstances of this case.

18. Finally, Dr. Kliger urges that the Administrative

Complaint be involuntarily dismissed d ue to various alleged

delays and procedural irregularities occurring under the

Department's jurisdiction during this proceeding's investigative

phase , and based on certain matters which, he contends, the

Department should be deemed to have admitted pursuan t to r ule

1.370(a), Florida Rules of Civil Procedure. These arguments are

rejected. See Carter v. Dep't of Prof'l Reg. , 633 So. 2d 3

(Fla. 1994); Heshmati v. Dep't of Health , 983 So. 2d 632 (5th

DCA 2008).

RECOMMENDATION

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order finding Dr. Kliger guilty the offense described in section

458.331(1)(c), Florida Statutes, i.e., being convicted of a

crime that directly relates to the practi ce of medicine. It is

further RECOMMENDED that the Board of Medicine revoke

Dr. Kliger's medical license and impose an administrative fine

of $10,000.

DONE AND ENTERED this 9th day of April, 2013, in

Tallahassee, Leon County, Florida.

S

__________ _________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of April, 2013.

COPIES FURNISHED :

Yol o nda Y. Green, Esquire

Robert A. Milne, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Mark L. Pomeranz, Esquire

Pomeranz & Associates, P.A.

1920 East Hallendale Beach Boulevard

Suite #802

Hallendale Beach, Florida 33 009

Allison Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 170 1

Jennifer A. Tschetter, General Counsel

Department 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 t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.