STATE OF FLORIDA BOARD OF ORTHOTISTS and PROSTHETISTS DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2016-11714 MIGUEL A. UGARTE, O.R.T., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Orthotists and Prosthetists against Respondent, Miguel A. Ugarte, O.R.T. In support, Petitioner alleges: 1. Petitioner is the 'state department charged with regulating the practice of Orthotics and Prosthetics pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 468, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed Orthotist in the State of Florida, having been issued License Number ORT37 on or about May 14, 1998.
3. Respondent's address of record is 12250 S.W. 129 CT, 101, Miami, FL 33186. 4. On or about March 29, 2006, the United States Department of Health and Human Services Office of Inspector General ("DHHS") sent an exclusion list mitigation letter ("mitigation letter") to Respondent. 5. On or about May 9, 2006, Respondent's attorney contacted DHHS, via phone, acknowledged receipt of the mitigation letter and provided notice of representation of the Respondent. 6. On or about May 22, 2006, DHHS received a response letter from Respondent's attorney. 7. On or about August 31, 2006, Respondent resided at the Federal Prison Camp located in Pensacola, FL and his register number was 64617-004. 8. DHHS sent Respondent a final exclusion notice ("Exclusion Notice") dated August 31, 2006, to the Federal Prison Camp located at 110 Raby Ave. Pensacola, FL 32509 ("FPC Pensacola"). 9. The exclusion notice put Respondent on notice that as of September 20, 2006 his name would be placed on the United States Department of Health and Human Services Office of General Counsel's Individual and Entities Exclusion List ("Exclusion List"). 2
10. The exclusion notice also advised Respondent that as a result he would be excluded from participation, in any capacity, in Medicare, Medicaid, and all Federal Health Care Programs, that the exclusion is for a minimum period of fifteen (15) years, and that DHHS considered the information Respondent's Attorney furnished to their regional office when making this decision. 11. On or about September 20, 2006, DHHS placed Respondent's name on the Exclusion List. 12. Respondent's name will remain on the Exclusion List for a period of fifteen years. 13. Consequently, Respondent's Medicaid provider number was adversely terminated. 14. To date, Respondent's eligibility to participate in the Medicaid program has not been restored. 15. Respondent filed an appeal with the Departmental Appeals Board regarding being listed on the Exclusion List, and Respondent's appeal was dismissed. 16. In October 2015, Respondent submitted a renewal application to the Florida Board of Orthotists and Prosthetists to renew his Orthotist license. 3
17. Question five (5) on the renewal application, under the Medicaid and Medicare Fraud Questions subsection, asks, "Are you currently listed on the United States Department of Health and Human Services Office of the Inspector General's List of Excluded Individuals and Entities?" 18. Respondent answered "No" to question five (5). COUNT I 19. Petitioner re-alleges and incorporates paragraphs one (1) through eighteen (18), as if fully stated herein. 20. Section 468.811(1)(j), Florida Statutes (2015) provides, violating any provision of chapter 468 or 456, or any rules adopted pursuant thereto constitutes grounds for discipline. 21. Section 456.072(1)(kk), Florida Statutes (2015), provides being terminated from the state Medicaid program pursuant to s. 409.913, any other state Medicaid program, or the federal Medicare program, unless eligibility to participate in the program from which the practitioner was terminated has been restored constitutes grounds for discipline. 22. Respondent's Medicaid Provider Number was adversely terminated because Respondent was placed on the Exclusion List and is excluded from Medicaid, Medicare and all Federal health programs for a period of fifteen (15) 4
years; Respondent's eligibility to participate in the aforementioned programs has not been restored. 23. Respondent violated Section 456.072(1)(kk), Florida Statutes (2016), by being adversely terminated from the Medicaid program. COUNT II 24. Petitioner re-alleges and incorporates paragraphs one (1) through eighteen (18) as if fully stated herein. 25. Section 468.811(1)(j), Florida Statutes (2015) provides, violating any provision of chapter 468 or 456, or any rules adopted pursuant thereto constitute grounds for discipline. 26. Section 456.072(1)(h), Florida Statutes (2015) provides, attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board constitutes grounds for discipline. 27. Respondent's license was renewed because he answered "No," when he should have answered yes, to question five (5), under the Medicaid and Medicare Fraud questions on the renewal application, which asked, "Are you currently listed on the United States Department of Health and Human Services Office of the Inspector General's List of Excluded Individuals and 5
Entities," and Respondent failed to report to the Department that his name is listed on the Exclusion List. 28. Respondent violated section 456.072(1)(h) by obtaining and/or renewing his Orthotist license in October 2015 by bribery, by fraudulent misrepresentation, or through an error of the department or the board, and by failing to report his name being listed on the Exclusion List. WHEREFORE, Petitioner respectfully requests that the Board of Orthotists and Prosthetists enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. 6
SIGNED this day of O ur, 2017. Celeste Philip, MD, MPH Sur! n General & Secretary FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERKbrVegaLCIA.A.4, DATE: AUG 1 0 2017 ennifer Weaver, Esq. Assistant General Counsel Florida Bar No.: 0106784 Florida Department of Health Office of the General Counsel 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-1701 Telephone (850) 245-4444 ext. 8191 Facsimile: (850) 245-4684 Jennifer.Weaver@flhealth.gov PCP Date: August 8, 2017 PCP Panel: 1 Fedrick and W. Rosen
NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. Please send your request to: Department of Health Prosecution Services Unit Attention: Jennifer Weaver, Esq. 4052 Bald Cypress Way, Bin #C65 Tallahassee, Florida 32399-1701 If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Please be advised that mediation under Section 120.5731 Florida Statutes, is not available for administrative disputes involving this agency action. 8
NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary Matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. 9