13-003237MPI Agency For Health Care Administration vs. Robert J. Meek, D.O. Status: Closed Recommended Order on Friday, February 28, 2014.

Summary: Medicaid provider should be terminated from participating in the Florida Medicaid program for ten years based on his criminal history and disciplinary history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION ,

Petitioner ,

vs. Case No. 13 - 3237MPI

ROBERT J. MEEK, D.O. ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to noti ce, a hearing was conducted in this case on

December 4, 2013, in Tallahassee, Florida, with Respondent and

his attorney participating by telephone from separate locations ,

before Administrative Law Judge (ALJ) Claude B. Arrington of the

Division of Adminis trative Hearings (DOAH).

APPEARANCES

For Petitioner: Douglas James Lomonico, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Fl orida 32308

For Respondent: John Daniel Strohsahl, Esquire

Bradford J. Beilly, PA

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

What administrativ e sanction should be imposed on the

participation of Robert J. Meek, D.O., (Respondent), in the

Florida Medicaid program.

PRELIMINARY STATEMENT

The Agency for Health Care Administration (Petitioner) is

responsible for administering the Florida Medicaid p rogram. On

July 17, 2013, Petitioner issued an amended sanction letter

against Respondent which seeks to terminate RespondentÓs

participation in the Florida Medicaid program as a provider.

Respondent timely challenged the proposed action, the matter was

referred to DOAH, and this proceeding followed.

On September 4, 2013, Petitioner filed an " Unopposed Request

for Official Recognition, " which requested that the undersigned

take official recognition of the following court documents

related to the case of United States of America v. Robert Meek : a

certified copy of the criminal judgment, a certified copy of the

plea agreement, and a certified copy of the stipulated statement

of facts. On September 5, 2013, the undersigned granted the

motion.

On Septembe r 12, 2013, Petitioner filed a Motion to

Relinquish Jurisdiction, contending that there were no disputed

issues of material fact because of the matters that had been

officially recognized. Following a response by Respondent and a

motion hearing, the under signed, on October 16, 2013, entered an

" Order Denying Motion to Relinquish, but Limiting Issues, " which,

for the reasons stated therein and discussed below, ruled that

Petitioner had established grounds to discipline RespondentÓs

participation in the Flor ida Medicaid program, but that

Respondent was entitled to a formal hearing on the issue of the

appropriate penalty to be imposed on that participation.

Prior to the hearing, the parties entered into a " Joint

Prehearing Stipulation, " by which the parties s tipulated that the

appropriate sanction was a termination of RespondentÓs

participation as a Medicaid program provider for a period of time

between 8 and 20 years. 1/

At the final hearing, Petitioner presented the testimony of

Michael West (an administrat or in PetitionerÓs Office of

Inspector General, Medicaid Program Integrity) and offered 15

consecutively - numbered exhibits, 14 of which were admitted into

evidence. Respondent testified (by telephone from prison) on his

own behalf and offered five consecu tively - numbered exhibits, each

of which was admitted into evidence.

A Transcript of the hearing, consisting of one volume, was

filed January 2, 2014. On Respondent's unopposed motion , the

deadline for filing of proposed recommended orders was extended

t o January 20, 2014. On January 16, Respondent moved to

supplement the record. Following a response by Petitioner and a

motion hearing, the motion to supplement was denied and the

deadline for the filing of proposed recommended orders was

extended to clos e of business on February 5. Each party timely

filed a Proposed Recommended Order. Those orders have been duly

considered by the undersigned in the preparation of this

Recommended Order.

Unless otherwise noted, all statutory references are to

Florida Sta tutes (2013).

FINDING S OF FACT

1. Petitioner is the agency of the S tate of Florida charged

with the responsibility of administering the Florida Medicaid

program.

2. At all times relevant to this proceeding, Respondent has

been a provider with the Flori da Medicaid program and has had a

Medicaid provider number that was issued pursuant to a Medicaid

Provider Agreement with Petitioner.

3. " Medicaid " is the medical assistance program authorized

by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 e t

seq., and regulations thereunder.

4. Respondent h olds a doctor of osteopathic medicine degree

and was licensed to practice medicine in Florida, Virginia, and

Ohio. Because of his criminal conviction, which will be

discussed below, his license to prac tice medicine in Ohio has

been revoked and the licenses issued by Virginia and Florida have

been suspended.

5. At the time of the formal hearing, Respondent was

incarcerated in a federal prison and his license to practice

medicine in Florida was suspend ed. RespondentÓs testimony at the

formal hearing was taken by telephone.

6. Respondent first became licensed in Florida in 2005.

After completing a residency in proctologic surgery, Respondent

worked at Colorectal and GI Specialists of South Florida fro m

July 2006 until February 2007. Respondent then worked at The

Hemorrhoid Relief Center from April 2007 through June 2009.

Respondent practiced proctology five days a week during those

periods. In addition to his regular jobs, from the fall of 2007

thro ugh the summer of 2009, Respondent worked some weekends at

Physicians Immediate Care.

7. Prior to May 2009, Respondent had no background,

experience, or training in pain management.

8. Between the middle of May 2009 until the end of February

2010, Re spondent worked between one and three days a week at

Executive Pain Clinic in Palm Beach County, purportedly in the

practice area of pain management.

9. RespondentÓs employment at Executive Pain Clinic led to

the federal grand jury indictment, dated Aug ust 12, 2011, against

Respondent and 30 other defendants for multiple charges.

Succinctly stated, Executive Pain Clinic was a pill mill. Among

the charges brought against Respondent were a count for

conspiracy to unlawfully distribute and dispense and po ssess with

intent to distribute a controlled substance in violation of the

Controlled Substance Act and a count for conspiracy to commit

money laundering.

10. The federal grand jury indictment was related to

RespondentÓs practice of medicine at Executive Pain Clinic. 2/

11. Of the 31 persons named in the indictment, 13 were

licensed to practice medicine in Florida. Of those 13 doctors,

11, including Respondent, entered into a plea agreement to

resolve the charges.

12. By his plea agreement, Responden t pled guilty to

conspiracy to commit money laundering in exchange for the United

States agreeing to dismiss the other charges against him. As

part of the plea agreement, Respondent agreed to testify on

behalf of the United States in its prosecution of th e two medical

doctors who were charged by the indictment, but who refused to

enter into a plea agreement to resolve the charges. As of the

formal hearing, Respondent had so testified, thereby satisfying

his obligation under the plea agreement.

13. In add ition to the plea agreement, Respondent entered

into a " Stipulated Statement of Facts, " (Petitioner's Exhibit 4)

which contained the following , which are hereby adopted by the

undersigned as findings of fact:

Had this case proceeded to trial, the

governm ent would have presented evidence by

way of witness testimony, Court authorized

wire interceptions of coconspirators and

documentary evidence. The evidence would

establish that the defendant was a physician

licensed to practice medicine in Florida and

mai ntained a Drug Enforcement Administration

registration number which enabled him to

order and purchase Schedule II - V controlled

substances. The evidence would establish

that from in or about 2009 through in or

about April 2010, the defendant conspired and

agreed with coconspirators to receive

monetary compensation from Executive Pain

clinic [sic] and to deposit such monetary

compensation into a financial institution.

The monetary compensation was the proceeds of

specific unlawful activity, that is, the

ill egal distribution of oxycodone pills, a

Schedule II controlled substance. The

defendant and conspirators [sic] participated

in the operation of illegal " pill mills "

wherein individuals seeking controlled

substances paid for examinations by the

defendant a nd coconspirator physicians based

upon alleged complaints of pain. The

defendant and coconspirator physicians

illegally prescribed large quantities of

oxycodone, 30 mg. pills and other controlled

substances without a legitimate medical

purpose and outside the usual course of

professional practice. The defendant and

coconspirator physicians prescribed

controlled substances without reviewing prior

medical records, referring individuals to

medical specialists, or recommending

alternative treatment modalities . The

defendant and coconspirator physicians

prescribed a predetermined " cocktail " of

controlled substances which contained

oxycodone 30 mg. and 15 mg. x anax and/or

soma. No individualized or particularization

of treatment of care was used, other than to

vary the quantity of drugs prescribed in the

" cocktail. " The evidence established that

the pain management clinics wherein the

defendant and coconspirator physicians were

employed were, in fact, facilities used for

the illegal distribution of controlled

substances. The defendant and co conspirators

engaged in the above - described criminal

conduct for a profit motive.

The monetary compensation received by the

defendant had a value of more than $10,000.

14. During RespondentÓs tenure at Executive Pain Cli nic,

approximately 628,200 dosage units of oxycodone were ordered

under his name. Respondent was assigned a large safe at

Executive Pain Clinic, in which the dosage units were deposited.

Many of the prescriptions written at Executive Pain Clinic were

fil led on - site. Patients paid cash for the prescriptions filled

at Executive Pain Clinic.

15. Respondent was not paid by Medicaid for his work at

Executive Pain Clinic. Executive Pain Clinic was not a Medicaid

provider.

16. Respondent saw an average of 40 patients per day at

Executive Pain Clinic, spending as few as five minutes with some

before prescribing pain medication. A very high percentage of

those patients left with a prescription for a controlled

substance.

17. Respondent prescribed large qu antities of oxycodone or

other controlled substances in complete disregard to whether the

patient was or was not a Medicaid recipient and without knowing

whether Medicaid would pay for the prescription.

18. Respondent was not qualified to practice pain

management when he practiced at Executive Pain Clinic, and he

practic ed beyond the scope of his expertise.

19. Respondent testified that in the month of August 2009 ,

he began to question the legality of what he was doing at

Executive Pain Clinic. Never theless, he did not leave that

employment until the end of the following February.

20. As a result of his plea, Respondent was sentenced to be

incarcerated for a period of 66 months. As reflected by the plea

agreement, that sentence may be adjusted follo wing RespondentÓs

cooperation in testifying against two of his codefendants.

21. On April 20, 2012, the Florida Department of Health

(DOH) filed an Administrative Complaint before the Board of

Osteopathic Medicine against Respondent alleging certain fac ts

pertaining to his plea in the federal proceeding. DOH designated

that Administrative Complaint as Case No. 2011 - 15165. The

Administrative Complaint alleged that Respondent pled guilty to a

crime that " relates to the practice of, or the ability to

prac tice, osteopathic medicine. " Respondent did not challenge

the factual allegations of the Administrative Complaint.

22. On March 5, 2013, the Board of Osteopathic Medicine

entered a Final Order in Case No. 2011 - 15165. The Final Order

found Respondent g uilty of the alleged violations, reprimanded

his license, administered a fine in the amount of $5,000,

restricted his practice, and suspended his license for a period

of six years. The Final Order found as a mitigating factor that

Respondent had provided free medical services to the underserved

community.

23. The restriction on his practice, as set forth in the

Final Order under the heading " Permanent Practice Restriction , "

is as follows:

Respondent shall not own, operate, or work in

a Pain Management C linic as defined by

Section 459.0137, Florida Statutes. Further,

Respondent is permanently restricted from

prescribing or dispensing any schedule II

controlled substance as defined by Chapter

893, Florida Statutes.

24. The suspension of his license, a s set forth in the

Final Order under the heading " Suspension , " is as follows:

RespondentÓs license to practice osteopathic

medicine in the State of Florida is hereby

suspended for a period of six (6) years and

until such time as he appears before the

Board and can demonstrate that he is

clinically safe to practice osteopathic

medicine by: 1) submitting evaluations by

either the University of Florida CARES

program; the Center for Personalized

Education for Physic ians (CPEP) clinical

assessment, or by other Board - approved

equivalent, and comply with the prerequisite

recommendations of the evaluation. The Board

reserves jurisdiction to set terms and

conditions, including probation, at the time

of reinstatement; or 2) be accepted into a nd

practice only in a re sidency program and

appear before the Board after successful

completion of the residency program. The

Board reserves jurisdiction to set terms and

conditions, including probation, at the time

Respondent appears before the Board.

25. Respondent worked part - time at East West Physicians in

Broward County from June 2009 to October 2010. Although

Respondent prescribed pain medication while employed at East West

Physicians, there was no evidence that East West Physicians was a

pill mill.

26. Respondent w orked at Palm Beach Wellness and

Rejuvenation after federal authorities closed Executive Pain

Clinic. Respondent testified, credibly, that he worked at Palm

Beach Wellness and Rejuvenation for 22 days over a period of five

and one - half months. Palm Beach Wellness and Rejuvenation was a

pill mill.

27. On September 20, 2011, prior to the Administrative

Complaint involving the federal proceeding, DOH filed an

Administrative Complaint before the Board of Osteopathic Medicine

against Respondent alleging cer tain facts pertaining to his

practice at Palm Beach Wellness and Rejuvenation. DOH designated

that Administrative Complaint as Case No. 2011 - 02478. Respondent

did not challenge the factual allegations of the Administrative

Complaint.

28. On March 14, 2012, the Board of Osteopathic Medicine

entered a Final Order that contained the following under the

heading " FINDINGS OF FACT " :

The allegations of fact set forth in the

Administrative Complaint are approved,

adopted, and incorporated herein by reference

a s the findings of fact of the Board. There

is competent, substantial evidence to support

the BoardÓs findings and conclusions.

29. The Final Order imposed against Respondent an

administrative fine in the amount of $10,000.00; ordered him not

to own, op erate, or work in a pain management clinic; and

suspended his license to practice for a period of one year.

30. The Administrative Complaint in Case N o . 2011 - 02478 3/

included the following factual allegations in paragraphs 5 - 76,

which were incorporated in DOH's Final Order as findings of fact:

5. At all times material to this Complaint,

the Respondent was a dispensing practitioner.

6. At all times material to this Complaint,

the Respondent was practicing at Total

Medical Express of Boca Raton, which w as also

known as Palm Beach Pain and Rejuvenation

(clinic).

7. The Respondent was practicing pain

management while he was at the clinic.

8. The Respondent prescribed controlled

substances such as Ambien, Ativan, Flexeril,

Lisinopril, oxycodone (also kn own as

Roxicodone), Percocet, Valium and Xanax to

his patients.

9. Ambien is the brand name for zolpidem,

which is prescribed to treat insomnia.

According to Title 21, Section [sic] 1308.14,

Code of Federal Regulations, zolpidem is a

Schedule IV control led substance. Zolpidem

can cause dependence and is subject to abuse.

10. Ativan is the brand name for lorazepam,

which is a benzodiazepine, and is prescribed

to treat anxiety. Lorazepam can decrease

mental alertness and affect judgment.

According to Section [sic] 893.03(4), Florida

Statutes, lorazepam is a Schedule IV

controlled substance that has a low potential

for abuse relative to the substances in

Schedule III and has a currently accepted

medical use in treatment in the United

States. Abuse of l orazepam may lead to

limited physical or psychological dependence

relative the substances in Schedule III.

11. Flexeril is the brand name for

cyclobenzaprine hydrochloride. Flexeril is

prescribed as an adjunct to rest and physical

therapy for relief of muscle spasms

associated with acute, painful

m usculoskeletal conditions. Flex eril is not

a scheduled drug.

12. Lisinopril is the brand name for a drug

of the same name. Lisinopril is prescribed

to treat hypertension. Lisinopril is not a

scheduled drug .

13. Oxycodone is an opioid commonly

prescribed to treat pain. According to

Section [sic] 893.03(2), Florida Statutes,

oxycodone is a Schedule II controlled

substance that has a high potential for abuse

and has a currently accepted b ut severely

restric ted medi c al use in treatment in the

United States. Abuse of oxycodone may lead

to severe psychological or physical

dependence.

14. Opiate, or opioid, drugs have similar

actions as the drug opium and are typically

prescribed to treat pain. Opioid drugs are

synthetically manufactured, while opiate

drugs are naturally occurring, but the terms

opioid and opiate are often used

interchangeably. Opioid drugs are addictive

and subject to abuse.

15. Percocet is the brand name for a drug

that contains oxycodone and is prescribed to

treat pain. According to Section [sic]

893.03(2), Florida Statutes, oxycodone is a

Schedule II controlled substance that has a

high potential for abuse and has a currently

accepted but severely restricted use in

treatment in the Unit ed States. Abuse of

oxycodone may lead to severe psychological or

physical dependence.

16. Roxicodone is the brand name for an

immediate release formulation of oxycodone.

17. Valium is the brand name for diazepam

and is prescribed to treat anxiety.

A ccording to Section [sic] 893.03(4), Florida

Statutes, diazepam is a Schedule IV

controlled substance that has a low potential

for abuse relative to the substances in

Schedule III and has a currently accepted

medical use in treatment in the United

States. Abuse of diazepam may lead to

limited physical or psychological dependence

relative to the substances in Schedule III.

18. Xanax is the brand name for alprazolam

and is prescribed to treat anxiety.

According to Section [sic] 893.03(4), Florida

Statute s, alprazolam is a Schedule IV

controlled substance that has a low potential

for abuse relative to the substances in

Schedule III and has a currently accepted

medical use treatment in the United States.

Abuse of alprazolam may lead to limited

physical or psychological dependence relative

to the substances in Schedule III.

Facts Specific to Patient J.W.

19. J.W. was a resident of Irvine, Kentucky.

20. On or about February 24, 2010, J.W.

presented to the clinic for the first time

with complaints of lowe r back pain.

21. On or about March 26, 2010, the

Respondent saw J.W. and diagnosed him with

lower back pain, lumbar spine stenosis,

lumbar disk displacement, and chronic pain

secondary to trauma.

22. On or about March 26, 2010, the

Respondent prescri bed 180 tablets of

Roxicodone 30 mg, 90 tablets of Roxicodone

15 mg, and 60 tablets of Xanax 1 mg to the

patient.

23. People who travel from out - of - state to

Florida for pain management are associated

with aberrant drug behavior, such as drug

abuse or diversion, and are considered high

risk patients.

24. The Respondent did not evaluate the

patient for drug abuse or drug diversion

despite the fact that the patient was from

Kentucky.

25. The Respondent inappropriately

prescribed multiple immediate rel ease opioids

to treat J.W.

26. The Respondent placed J.W. at risk of a

drug overdose by prescribing multiple release

opioids in conjunction with a benzodiazepine.

Facts Specific to Patient W.T.

27. W.T. was a resident of Louisa, Kentucky.

28. On or about January 25, 2010, W.T.

presented to the clinic for the first time

with complaints of lower back and left

shoulder pain.

29. On or about March 25, 2010, W.T.

presented to the Respondent, who diagnosed

the patient with lower back pain, lumbar disk

di splacement, chronic pain, and pain in the

left shoulder.

30. On or about March 25, 2010, the

Respondent failed to perform an adequate

physical examination of the patient, or the

Respondent failed to document that he

performed an adequate physical examina tion.

31. On or about March 25, 2010, the

Respondent failed to offer the patient pain

management techniques other than stretching.

32. On or about March 25, 2010, the

Respondent prescribed 180 tablets of

Roxicodone 30 mg, 90 tablets of Roxicodone 15

mg , and 60 tablets of Xanax 2 mg to the

patient.

33. The Respondent inappropriately

prescribed multiple immediate release opioids

to W.T.

34. The Respondent put W.T. at risk of a

drug overdose by prescribing multiple

immediate release opioids in conjunct ion with

a benzodiazepine.

35. People who travel from out - of - state to

Florida for pain management treatment are

associated with aberrant drug behavior, such

as drug abuse or diversion, and are

considered high risk patients.

36. The Respondent did not e valuate the

patient for drug abuse or drug diversion

despite the fact that the patient was from

Kentucky.

Facts Specific to Patient M.P

37. M.P. was a resident of Hancock, Maine.

38. On or about December 30, 2009, M.P.

presented to the clinic for the first time

with complaints of lower back pain.

39. On or about December 30, 2009, the

patient tested positive for

tetrahydrocannabinols (THC).

40. THC is the psychoactive ingredients i n

marijuana , or cannabis. According to Section

[sic] 893.0 3(1) , Flo rida Statutes, THC is a

Schedule I controlled substance that has a

high potential for abuse and has no currently

accepted medical use in treatment in Florida.

Its use under medical supervision does not

meet accepted safety standards.

41. THC is a centra l nervous system

depressant.

42. On or about March 26, 2010, M.P.

presented to the Respondent, who diagnosed

the patient with lumbar disk degeneration,

chronic lower back pain, degenerative disk

disease of the lumbar spine and lumbosacral

root lesions.

43. On or about March 26, 2010, the

Respondent failed to perform a physical

examination of the patient or the Respondent

failed to document that he had performed a

physical examination of the patient.

44. On or about March 26, 2010, the

Respondent presc ribed 60 tablets of Valium 10

mg, 30 tablets of Lisinopril 20 mg, 30

tablets of Flexeril 10 mg, 180 tablets of

Roxicodone 30 mg, and 60 tablets of

Roxicodone 15 mg to the patient.

45. The Respondent inappropriately

prescribed multiple immediate release o pioids

to the patient.

46. The Respondent put the patient at risk

of an overdose by prescribing a

benzodiazepine and opioids.

47. The Respondent compounded the patientÓs

risk of an overdose by prescribing Flexeril

in addition of a benzodiazepine and op ioids.

48. On or about March 26, 2010, the patient

tested positive for THC again.

49. The Respondent did not send the

patientÓs sample out to a laboratory for

confirmation to verify that the patient had

been positive for THC.

50. The Respondent failed to address the

patientÓs use of illegal substances in the

medical records.

51. The Respondent put the patient at high

risk for a drug overdose by prescribing 60

tablets of Valium 10 mg, 30 tablets of

Lisinopril 20 mg, 30 tablets of Flexeril 10

mg, 180 t ablets of Roxicodone 30 mg, and 60

tablets of Roxicodone 15 mg to the patient

while the patient was taking THC.

52. People who travel from out - of - state to

Florida for pain management treatment are

associated with aberrant drug behavior, such

as drug abus e or diversion, and are

considered high risk patients.

53. The Respondent did not evaluate the

patient for drug abuse or drug diversion

despite the fact that the patient was from

Maine.

Facts Specific to Patient D.S.1

54. D.S.1 was a resident of Flori da, and

lived approximately 130 miles away from the

clinic.

55. D.S.1 first presented to the clinic on

or about March 2, 2010, with a primary

complaint of upper, middle and lower back

pain and shoulder pain.

56. On or about April 1, 2010, D.S.1

present ed to the Respondent, who diagnosed

the patient with cervical, thoracic and

lumber disk degeneration, lumbar root

lesions, chronic pain and muscle spasms.

57. On or about April 1, 2010, the

Respondent prescribed 30 tablets of Flexeril

10 mg, 180 tablets of Roxicodone 30 mg and 60

tablets of Roxicodone 15 mg to the patient.

58. The Respondent inappropriately

prescribed the patient two immediate release

opioids.

Facts Specific to Patient D.S.2

59. Patient D.S.2 was a resident of

Middlesboro, Kentucky.

60. On or about March 11, 2010, D.S.2

presented to the clinic for the first time

with complaints of lower back pain.

61. On or about April 8, 2010, D.S.2

presented to the Respondent, who diagnosed

the patient with thoracic and lumbar disk

displacement, chronic lower back pain,

degenerative disk disease and lumbar and

thoracic spinal stenosis.

62. On or about April 8, 2010, the

Respondent prescribed 30 tablets of Ativan

2 mg, 30 tablets of Ambien 10 mg, 180 table t s

of Roxicodone 30 mg, and 90 tablets of

Roxicodone 15 mg to the patient.

63. The Respondent inappropriately

prescribed the patient two immediate release

opioids.

64. The Respondent put the patient at risk

of overdose by prescribing the patient a

combination of Ambien, Ativan, and oxycodon e.

65. People who travel from out - of - state to

Florida for pain management treatment are

associated with aberrant drug behavior, such

as drug abuse or diversion, and are

considered high risk patients.

66. The Respondent did not evaluate the

patient for drug abuse or drug diversion

despite the fact that the patient was from

Kentucky.

Facts Specific to Patient S.F.

67. S.F. was a resident of Florida and lived

approximately 24 miles from the clinic.

68. On or about March 10, 2010, S.F. went to

the clini c for the first time but his intake

form does not indicate what his chief

complaint was.

69. On or about April 9, 2010, S.F.

presented to the Respondent , who diagnosed

the patient with chronic lower back pain,

degenerative disk disease and lumbar spinal

stenosis.

70. On or about April 9, 2010, the

Respondent prescribed 180 tablets of

Roxicodone 30 mg and 60 tablets of Roxicodone

15 mg to the patient.

71. On or about April 9, 2010, the

Respondent wrote in the medical records that

the patient drank a si x pack of alcohol a

day, five days a week and the patient was

" drinking excessively. "

72. The Respondent prescribed high doses of

opiates to S.F. despite the patientÓs

excessive use of alcohol.

73. The Respondent put the patient at risk

of an overdose by prescribing 180 tablets of

Roxicodone 30 mg and 60 tablets of Roxicodone

15 mg when the patient was using alcohol

excessively.

74. The Respondent failed to counsel the

patient about the dangers of using oxycodone

with the levels of alcohol that the pa tient

was imbibing or he failed to document that he

counseled the patient.

75. S.F.Ós medical records include a

magnetic resonance imaging (M.R.I . ) study,

dated March 20, 2010. S.F.Ós M.R.I.

indicated that he had an abdominal aortic

aneurysm that would be adverse to

hypertension.

76. The Respondent failed to refer S.F. to

an in - patient detoxification center despite

the patientÓs use of alcohol and abnormal

M.R.I.

31. If his license to practice osteopathic medicine is

reinstated in Florida, Respondent intends to practice in South

Florida in a practice area other than pain management.

32. Section 409.913(17) contains the factors that

Petitioner must consider in determining the length of time a

Medicaid provider, such as Respondent, should be terminat ed from

the Medicaid program. Mr. West considered those factors in

reaching the conclusions that a termination lasting 20 years is

the appropriate sanction to be imposed against Respondent.

Petitioner considers the seriousness of the misconduct to be the

strongest factor to be considered.

33. Pill mills cause serious problems in the State of

Florida, and have been the focus of both regulatory agencies and

law enforcement agencies on the state and federal level for

several years.

34. Medicaid patient s in South Florida are not underserved,

and there will be little or no impact on access by recipients to

Medicaid services if Respondent is terminated as a provider.

35. The United States Department of Health and Human

Services, through its Office of In spector General, has suspended

Respondent's participation in all federally funded health care

programs for a period of eight years.

CONCLUSIONS OF LAW

3 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to sections 120.569, 120.57(1), and

409.913(31).

3 7 . As the agency responsible for administering the Florida

Medicaid program, PetitionerÓs interpretation of the statutes it

is charged with enforcing is entitled to great defere nce though a

court need not defer to an agencyÓs construction if its special

expertise is not required or if the interpretation conflicts with

the plain and ordinary meaning of the statute. See Fla. Hosp. v.

Ag. For Health Care Admin. , 823 So. 2d 844, 847 - 848 (Fla. 1st DCA

2002).

3 8 . Section 409.913(13) provides as follows:

(13) The agency shall immediately terminate

participation of a Medicaid provider in the

Medicaid program and may seek civil remedies

or impose other administrative sanctions

against a Medicaid provider, if the provider

has been:

(a) Convicted of a criminal offense related

to the delivery of any health care goods or

services, including the performance of

management or administrative functions

relating to the delivery of health care goods

or services;

(b) Convicted of a criminal offense under

federal law or the law of any state relating

to the practice of the providerÓs profession

. . . .

3 9 . Petitioner has grounds to terminate RespondentÓs

participation in the Florida Medicaid p rogram based on this

criminal conviction and the foregoing provisions of section

409.913(13). The only remaining issue is to determine the length

of that termination.

40. Petitioner is required to terminate RespondentÓs

participation in the Florida Med icaid progr am for a minimum of

eight years because of the eight - year suspension by the United

States Department of Health and Human Services and the provisions

of section 409.913(14), which provide s :

(14) If the provider has been suspended or

terminated f rom participation in the Medicaid

program or the Medicare program by the

Federal Government or any state, the agency

must immediately suspend or terminate, as

appropriate, the providerÓs participation in

this stateÓs Medicaid program for a period no

less t han that imposed by the Federal

Government or any other state, and may not

enroll such provider in this stateÓs Medicaid

program while such foreign suspension or

termination remains in effect. This sanction

is in addition to all other remedies provided

by law.

41. Pursuant to section 409.913(16) termination of a

provider from the Florida Medicaid program can be for a specific

period of time between 1 year to 20 years. Consequently, the

parties stipulated that RespondentÓs suspension from the Florida

Me dicaid program should be a minimum of eight years and a maximum

of 20 years. Petitioner asserts that the termination should be

for 20 years, while Respondent argues that the termination should

be for eight years.

42. Section 409.913(17) provides, in rele vant part, as

follows:

(17) In determining the appropriate

administrative sanction to be applied, or the

duration of any suspension or termination,

the agency shall consider:

(a) The seriousness and extent of the

violation or violations.

(b) Any prio r history of violations by the

provider relating to the delivery of health

care programs which resulted in either a

criminal conviction or in administrative

sanction or penalty.

(c) Evidence of continued violation within

the providerÓs management control of Medicaid

statutes, rules, regulations, or policies

after written notification to the provider of

improper practice or instance of violation.

(d) The effect, if any, on the quality of

medical care provided to Medicaid recipients

as a result of the act s of the provider.

(e) Any action by a licensing agency

respecting the provider in any state in which

the provider operates or has operated.

(f) The apparent impact on access by

recipients to Medicaid services if the

provider is suspended or terminated , in the

best judgment of the agency.

43. In support of his position that the termination should

be for a period of eight years, Respondent argues that his

cooperation with the federal prosecution of his two

co - conspirators should be considered a mitiga ting factor. That

argument is rejected, because RespondentÓs cooperation was

required by his plea agreement. The fact that Respondent entered

into a plea agreement is also not considered to be a mitigating

factor because the plea agreement itself was an obvious effort to

minimize his prison time.

44. Respondent correctly argues that the federal conviction

is RespondentÓs only criminal conviction. However, the Board of

Osteopathic Medicine has disciplined Respondent in two separate

administrative proce edings based on his conduct at two separate

pill mills. Once the federal government shut down Executive Pain

Management Clinic, Respondent found employment at a second pain

mill (Palm Beach Wellness and Rejuvenation clinic), where he

continued his pill mi ll practice.

45. Respondent correctly argues that the actions in Ohio

and Virginia to revoke or suspend his license were based on his

plea of guilty in the federal proceeding. Consequently, those

actions have been given little weight by the undersigned in

reaching the recommendations that follow.

46. Respondent argues that the length of time of his

suspensions of his license in the two administrative proceedings

before the Board of Osteopathic Medicine (1 year and 6 years,

respectively) and the length of time he has been disqualified

from participating in all federally funded medical programs by

the United States Department of Health and Human Services ( eight

years) should guide Petitioner in determining the length of time

to terminate him from the Flor ida Medicaid program.

47. In determining the recommendation that follows, the

undersigned has considered the restrictions the Board of

Osteopathic Medicine has placed on RespondentÓs practice if he is

re - licensed and the conditions of his re - instatement , which may

include probation. Petitioner has no ability to place Respondent

on probation as a Medicaid provider. Likewise, Petitioner has no

ability to place special conditions on Respondent's participation

as a Medicaid provider.

48. Petitioner establ ished the seriousness of RespondentÓs

misconduct , which was motivated by profit and in complete

disregard to the well - being of his patients. Respondent did not

know, and he did not care, whether Medicaid would be required to

pay for the pills he prescribe d. In making the recommendation

that follows, the undersigned has considered factors listed in

section 409.913(17) and the arguments of Petitioner and

Respondent. The undersigned concludes that a termination from

the Medicaid program for a period of ten years is reasonable.

Because the federally imposed suspension from all federally

funded medical programs will end after eight years, a termination

from the Florida Medicaid program for ten years will provide a

period of approximately two years during whic h Petitioner can

evaluate Respondent's medical practice and his participation in

federally funded medical programs other than Medicaid.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED that the Agenc y for Health Care

Administration enter a final order adopting the findings of fact

and the conclusions of law set forth in this Recommended Order.

It is further RECOMMENDED that the final order terminate

Robert J. Meek, D.O., as a Florida Medicaid provid er for a period

of ten years.

DONE AND ENTERED this 2 8 th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 2 8 th day of February , 2014 .

ENDNOTE S

1/ As will be discussed be low, the minimum and maximum periods

for the termination were set by the suspension , imposed by t he

United States Department of Health and Human Services, of

RespondentÓs participation in all federally funded healthcare

programs for a period of eight years (the minimum period) and

s ection 409.913(16)(b), Florida Statutes, which provides that a

termination from participation in the Medicaid program shall be

from between 1 and 20 years ( which makes 20 years the maximum

period).

2/ This finding of fact reite rates the determination made in the

" Order Denying Motion to Relinquish, but Limiting Issues " entered

October 16, 2013, which found that Petitioner had established

grounds to discipline RespondentÓs participation in the Medicaid

program. An issue in makin g that determination was whether

RespondentÓs misconduct related to the practice of his

profession. The misconduct was directly related to RespondentÓs

practice at Executive Pain Clinic.

3/ The Administrative Complaint and the Final Order in Case

201 1 - 02478 constitute RespondentÓs Exhibit 1.

COPIES FURNISHED:

Douglas James Lomonico, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

John Daniel Strohsahl, Esquire

Bradford J. Beilly, PA

1144 Sout heast Thi rd Avenue

Fort Lauderdale, Florida 33316

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

Mai l Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

Mail Stop 1

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.