20 Fla. L. Weekly Supp. 1234a
Online Reference: FLWSUPP 2012IRODInsurance — Personal injury protection — Coverage — Medical expenses — Lawfully rendered services — Despite being issued clinic exemption by Agency for Health Care Administration, medical provider was not wholly owned by licensed physician where guilty plea agreement and factual proffer entered by true owners in criminal case demonstrate that owners who are not physicians handled all finances and clinic operations, including fraud scheme involving staged accidents, and retained bulk of proceeds — Because provider’s services were not lawfully rendered, they are not compensable under PIP statute
FEBRE’S MEDICAL CENTER a/a/o IVAN RODRIGUEZ, Plaintiff, vs. MGA INSURANCE COMPANY, INC., Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 09-10008 CC 26 (3). August 15, 2013. Michaelle Gonzalez-Paulson, Judge. Counsel: Scott E. Danner, Kirwan Spellacy & Danner, P.A.
ORDER
THIS CAUSE having upon to be heard on the Defendant’s Motion for Summary Judgment Regarding the Lawfulness of the Services Rendered to the Assignor and the Clinic Not Being Wholly Owned by a Licensed Physician.
FINAL JUDGMENT
THIS CAUSE having come before the Court on Plaintiff’s Motion for Summary Judgment, and the Court having reviewed the records, having heard argument of counsel and the Court being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law:
1. Based on the underlying medical records and pleadings there is no genuine issue of material fact and Defendant is entitled to Final Judgment as a matter of law.
2. Plaintiff must substantially comply with all Florida Statutes in order for its bills to be compensable under no-fault. See F.S. §627.732(11). The issuance of an AHCA clinic exemption is irrelevant to the factual question as to whether the facility is wholly owned by a licensed physician. The statute specifically states that the right to an exemption certificate is limited to “any person or entity providing health care services which is not a clinic, as defined under s. 400.9905.” For the reasons discussed below, FEBRE’S MEDICAL was not qualified as a clinic because it was not wholly owned by Lazaro Rodriguez. FEBRE’S MEDICAL did not meet the conditions required for applying for a clinic exemption.
3. Florida Statutes §§627.736, 400.990 and 460.4167 each use the term “wholly owned.” These statutes are part of a comprehensive legislative mandate aimed at curtailing fraud and abuse. The everyday definition of wholly pursuant to Merriam-Webster’s Online Dictionary (2010) is; to the full or entire extent: completely. Ownership is defined by Black’s Law Dictionary 1106 (6th Ed. 1990) as the collection of rights allowing one to use and enjoy property, including the right to convey it to others; ownership implies the right to possess a thing, regardless of any actual or constructive control; ownership rights are general, permanent, and inheritable. Ownership rights may be present, future or contingent rights. Taking these definitions together, it is clear that RODRIGUEZ did not wholly own FEBRE’S MEDICAL based upon the following:
a) That on June 28, 2013 the actual owners of FEBRE’S MEDICAL entered into a guilty plea agreement and factual proffer with the State Attorney’s Office.
b) That according to the factual proffer filed by Defendant LUIS IVAN HERNANDEZ and MARIA TESTA BACEIRO the United States would have proven that LUIS IVAN HERNANDEZ (hereinafter referred to as “HERNANDEZ”) and his long-time girlfriend, co-defendant MARIA TESTA BACEIRO (“BACEIRO”), served as the true owners of a series of chiropractic clinics in Palm Beach and Miami-Dade Counties, including V and H Medical Center, Inc., N&G Medical Center, Inc., FEBRE’S MEDICAL CENTER INC., Universal Rehab Med Group Inc. (“Universal Rehab”), and 36 Rehabilitation Center Inc. FEBRE’S MEDICAL was the first clinic that TESTA and HERNANDEZ owned in Palm Beach County. Co-defendant Vladimir Lopez (“Lopez”) told HERNANDEZ about opportunities in Palm Beach County, and TESTA and HERNANDEZ opened FEBRE’S MEDICAL together with Lopez, agreeing to split the proceeds 50-50. Lopez was responsible for recruiting patients to participate in staged accidents and come to the clinic, while HERNANDEZ and TESTA were responsible for the day-to-day operations of FEBRE’S MEDICAL CENTER.
c) As mentioned, in order to be entitled to PIP payments, and to avoid additional inspections by Florida’s Agency for Health Care Administration (“AHCA”), the clinics had to be owned by licensed chiropractic physicians or other professionals. Accordingly, even though TESTA, HERNANDEZ, and Lopez handled all aspects of the business including leasing office space, obtaining furniture, arranging utilities, and hiring staff — including the chiropractors and licensed massage therapists — all corporate and medical licensing paperwork showed that the clinics were owned by the chiropractors or professionals. With regard to FEBRE’S MEDICAL, the corporate records reflect that the original nominee owner was Astrid Febre, M.D. Shortly after its incorporation, however, Dr. Febre was replaced by Hermann Diehl, a doctor of chiropractic, and then by co-defendant LAZARO RODRIGUEZ, also a doctor of chiropractic medicine. Although these doctors appeared as the owners on the corporate records and later on the bank records for FEBRE’S MEDICAL, TESTA, HERNANDEZ, and Lopez also handled all of the finances related to the clinic, including retaining the bulk of the proceeds.
d) In addition to being one of the owners of FEBRE’S MEDICAL, Lopez also organized the recruitment of individuals to participate in staged accidents. Lopez used a number of individuals to assist him with this task, including co-defendants Dagoberto Milian Lopez, Alien Moya, and Joel Antonio Simon Ramirez. Recruiters were responsible for locating individuals with automobile insurance coverage that was “acceptable” to the clinic who were willing to participate in a staged accident. The recruiters also were responsible for setting up the staged accident and insuring that the accident participants reported to the clinic for “treatment.” TESTA, HERNANDEZ, and Lopez paid the recruiters who, in turn, paid the patients. Recruiters were paid approximately $4,000 for a “package,” consisting of two accident participants who received “treatment” at FEBRE’S MEDICAL.
e) In the charged scheme, recruiters would find individuals who owned automobiles and had car insurance from one of the insurers that Lopez, TESTA, and HERNANDEZ preferred. The recruiters and other participants have referred to the individuals whom they recruited as the “Perro” or “Macho” and the “Perra” or “Hembra.” The “Perro/Macho” was the person who “caused” the staged accident, that is, his car struck the other car. The “perra/hembra” was the person who was the “victim” of the staged accident, that is, she was in the car that is struck by the “perro’s” car. The recruiters sought out drivers and their friends/family members to participate because; as explained above, the PIP limit is $10,000 per person. Thus, if the recruiter found a “perro” with a wife and two children and a “perra” with two friends who engage in a staged accident, for a total of seven (7) participants, the maximum PIP benefits was $70,000. Once the recruiters recruited the participants, they coached the participants on how to perform the staged accident, what to say to the police officer who responded to the scene, and on how to claim that they have been injured. Thereafter, the accident was staged. After impact, a police officer was called, and a police report was filed. After the staged accident, the “perro” and “perra” filed false claims with their insurance companies, alleging that they and their family members were injured.
f) The accident participants were then directed by the recruiters to chiropractic clinics that were controlled by Lopez, TESTA, AND HERNANDEZ. Once at the chiropractic clinic, the staged accident participants filled out paperwork falsely asserting that they suffered injuries during the staged accident. This defendant and the co-conspirator employees and recruiters, including Olinda Rodriguez, Iris Roca, and Alien Moya, advised the participants on how to fill out the paperwork and what to say if an insurance investigator interviewed them about their injuries or treatment. Despite being different ages and having been in different types of accidents, all participants received a standard treatment “protocol” from the chiropractors, a number of sessions that ended when the $10,000 PIP limit was exhausted.
g) The staged accident participants were instructed to sign numerous blank treatment forms that would later be submitted indicating that they had received lengthy treatment from the clinic on a number of separate occasions for treatment, although they may have visited the clinic only a few times. During their visits, some staged accident participants received no treatment at all, or may have received only a short exam or treatment from the chiropractor or licensed massage therapist (“LMT”) but the paperwork completed by the LMTS and chiropractors indicated that a full and lengthy exam and treatment was given. A cooperating accident participant explained that she received a full treatment on the first occasion so that, according to the LMT, she could answer questions, if interviewed by the insurance company. After that first visit, she had to report to the clinic to make it appear as though she was receiving treatment, but she just sat in the room and chatted with the LMT.
h) All of the documentation stating that the staged accident participants needed and received treatment was then submitted via United States mail to the insurance companies for reimbursement of PIP benefits up to the $10,000 per person cap. The insurers would pay the fraudulent claims by sending checks to the clinics through the United States mail. Once received, Testa, HERNANDEZ, or LOPEZ would deposit the insurance proceeds checks into bank accounts in the names of the clinics. As mentioned earlier, these bank accounts were opened by the chiropractic physicians in the names of the clinics to make it appear that the doctors were the true owners of the clinics and that the insurance proceeds were being paid to a legitimate clinic. In fact, Testa and Hernandez were controlling the operations of the clinics discussed herein, and the proceeds of the mail fraud were being deposited into those accounts to conceal the ownership and control of the clinics.
i) To assist in the concealment of the ownership and control of the proceeds of the mail fraud, HERNANDEZ and his co-conspirators opened bank accounts for each clinic that they controlled. For FEBRE’S MEDICAL, LUIS IVAN HERNANDEZ and a chiropractor who served as the nominee owner of the clinic opened a bank account at Wachovia Bank, now known as Wells Fargo Bank, a domestic financial institution as defined by federal law involved in interstate or foreign commerce. The bank account opening documents for the FEBRE’S MEDICAL account listed the chiropractor as the “president” and HERNANDEZ as the “Office Manager,” although HERNANDEZ, TESTA, and co-defendant Vladimir Lopez were the true owners of FEBRE’S MEDICAL. By appearing on the bank opening documents, Hernandez was authorized to write checks and conduct other transactions affecting the account. With regard to Universal Rehab, TESTA, Lopez, and Lazaro Rodriguez opened bank accounts at SunTrust Bank and Wachovia Bank, now known as Wells Fargo Bank, both of which are domestic financial institutions as defined by federal law involved in interstate or foreign commerce. The bank account opening documents for the Universal Rehab SunTrust account list Lazaro Rodriguez as the “President,” TESTA as the “Office Manager,” and HERNANDEZ as the “Assistant Manager” although HERNANDEZ and TESTA were the true owners of Universal Rehab. The bank account opening documents for the Universal Rehab Wahovia account list Lazaro Rodriguez as the “President.” Two days later, TESTA and HERNANDEZ were added as “authorized signors” although HERNANDEZ and TESTA were the true owners and operators of Universal Rehab. By appearing on the bank accounts, HERNANDEZ and TESTA were authorized to write checks and conduct other transactions affecting the Universal Rehab bank accounts.
j) FEBRE’S MEDICAL and Universal Rehab received $4,232,248.04 in proceeds from the submission of fraudulent PIP insurance claims to the insurance companies named in the Second Superseding indictment.
k.) That both LUIS IVAN HERNANDEZ and MARIA TESTA signed the factual proffers and plead guilty to the submission of fraudulent insurance claims and being the true owners on the clinics.
4. Febre’s services were performed in violation of Florida Statutes, §§627.736(1)(a), (5)(a), 5(b)(1) and 5(d); Florida Statutes, §627.732(11), Florida Statutes, §460.4167, and Florida Statutes, §400.9935 (3), and its bills are not properly payable. Under F.S. §627.736(5)(b)(1) neither “an insurer or insured is not required to pay a claim or charges: . . . (b) For any service or treatment that was not lawful at the time rendered.
ORDERED AND ADJUDGED that said Motion is hereby:
GRANTED
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