STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6322

) ALBERT BELVILLE LOCKHART, M.D. )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on March 19, 1991, in Tallahassee, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: William B. Nickell, Senior Attorney

Department of Professional Regulation

Suite 60 Northwood Centre 1940 North Monroe Street

Tallahassee, Florida 32399-0792 For Respondent: No Appearance

STATEMENT OF THE ISSUES

The Administrative Complaint herein charges Respondent with violation of Section 458.331(1)(x) F.S. (violating Rule 21M-28.002 F.A.C.) by failing to submit documentation verifying his continuing medical education for the period January 1, 1986 through December 31, 1987 in response to the Board of Medicine's random audit and further charges him with violation of Section 458.331(1)(a)

1. by attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, fraudulent misrepresentations, or through error of the department or board, to wit: falsely certifying that he had completed the continuing medical education requirements for the period from January 1, 1986 through December 31, 1987.

   
   

   PRELIMINARY STATEMENT

   
   

   At the commencement of formal hearing, Respondent had not appeared.

   Thereupon, a 10-minute delay was had. The undersigned sounded the docket in all waiting areas of the Division of Administrative Hearings and determined that Respondent had not called either the Clerk of the Division of Administrative Hearings or the secretary to the undersigned to offer any reason for his nonappearance.

   Thereafter, Petitioner requested and was granted official recognition of Chapter 21M F.A.C., specifically Rules 21M-20 and 21M-28.

   
   

   Petitioner presented the oral testimony of Dorothy Jean Faircloth, Linda Church, George Schaffer, and Nancy Portwine and had Exhibits P-1 through P-6 admitted in evidence.

   
   

   After Petitioner rested, the undersigned again observed the courtroom and waiting areas and sounded the docket. Respondent still had not appeared, and accordingly, the proceedings were closed without Respondent's presenting any evidence.

   
   

   By a Post-Hearing Order entered April 3, 1991, the parties were notified that the transcript of proceedings had been filed on April 1, 1991, and that each party had the opportunity to file proposed findings of fact. Petitioner's timely-filed proposed findings of fact have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2) F.S. Respondent has filed no proposed findings of fact.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material, Respondent was licensed by the Florida Board of Medicine, License No. ME 0034111.

      
      

   2. Respondent's Florida license expired on December 31, 1989 and has not been renewed. The Board of Medicine does not permit licensees to renew their licenses during a period of suspension. Pursuant to an October 29, 1990 Final Order, Respondent's license was suspended until such time as he complied with a prior December 16, 1988 Final Order reprimanding him and imposing an administrative fine of $2500 for a violation of Section 458.331(1)(b) F.S., discipline in another state, Texas.

      
      

   3. This cause involves Respondent's last biennial license renewal for the period 1988-1989. Pursuant to Section 455.213(5) F.S. as a condition of renewal of a license, the Board of Medical Examiners (Board of Medicine) shall require licensees which it regulates to periodically demonstrate their professional competency by completing at least 40 hours of continuing education every two years, of which at least five hours shall concern risk management. Criteria for, and content of, continuing education courses shall be approved by the Board.

      
      

   4. Pursuant to Rule 21M-28.002 F.A.C. every physician licensed pursuant to Chapter 458 F.S. shall be required to complete 40 hours of continuing medical education (CME) approved by the Board in the 24 months preceding each biennial renewal period as established by the Department. At least five of such CME hours required for renewal shall concern risk management.

      
      

   5. Pursuant to Rule 21M-28.002(2)(a) F.A.C. "risk management" means the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating identifiable risks.

      
      

   6. Pursuant to Section 21M-28.002(3) F.A.C., part of the application for renewal shall include a form on which the licensee shall state that he has completed the required continuing education. Additionally, the licensee is affirmatively charged with retaining such receipts, vouchers, certificates, or other papers, such as physician recognition awards issued by the American

      Medical Association (AMA), as may be necessary to document completion of the continuing medical education listed by the licensee on the renewal form for a period of not less than four years from the date the course was taken. The Board is affirmatively charged with randomly auditing such numbers of licensees as is necessary to assure that the continuing education requirements are met.

      
      

   7. On or about January 18, 1988, Respondent signed the following statement which was thereafter submitted as part of his request to renew his license to practice medicine:

      
      

      I hereby certify that during the period January 1, 1986, through December 31, 1987, I have obtained no fewer than forty (40) hours of continuing medical education courses which meets the requirement of Chapter 455.213(5), Florida Statutes, and Rule 21M-28.002(6), Florida Administrative Code. I further certify that at least five

      (5) of the forty (40) hours concern risk management pursuant to Rule 21M-28.002(2), Florida Administrative Code. I understand that I must maintain such receipts, vouchers, certificates, or other papers to document completion of the CME requirements for a period of not less than four (4) years from the date the course was taken.

      I affirm that these statements are true and correct and recognize that providing false information may result in a fine, suspension or revocation of my license as provided in Florida Statutes 455.2275, 775.082, or

      775.084.

      
      

   8. The aforementioned statement concerning CME courses taken January 1, 1986 through December 31, 1987 was required as part of the renewal process for the licensing period from January 1, 1988 through December 31, 1989. Without this statement, Respondent would not have been permitted to renew his license to practice medicine in Florida, but having made it, he was permitted to renew his Florida license. That renewal was based, in part, on the aforementioned statement signed by Respondent regarding completion of the mandatory CME credits.

      
      

   9. Thereafter, Respondent was selected randomly for audit purposes to verify his continuing medical education for the January 1, 1986 through December 31, 1987 period covered in his statement made January 18, 1988, as a predicate to license renewal. Respondent was required, pursuant to rule, to retain his documentation of 1986-1987 CME courses up through that course's same month and day in 1990 (for 1986) and 1991 (for 1987).

      
      

   10. On February 17, 1989, the agency received some CME documentation from Respondent, but it was returned to Respondent because it failed to document the required 5 hours in risk management (TR-12). Thereafter, Petitioner prosecuted Respondent for failure to provide adequate documentation of 5 hours of risk management CME credits and 35 hours of Category I CME. (TR-12-13 and the Administrative Complaint herein.)

   11. Mr. George Schaffer, the Department of Professional Regulation (DPR) investigator, testified that he also wrote Respondent for documentation of all 1986-1987 CME credits (TR-26-27).

       
       

   12. Respondent replied to Mr. Schaffer's letter on June 12, 1990, stating, in pertinent part, as follows:

       
       

       I am in receipt of your letter of 6/7/90 concerning continuing education for 1985. To the best of my knowledge, this was submitted when requested. Due to lack of storage space, I am unable to keep papers from these activities longer than two years and I no longer have papers for CME 1985 in my possession. Part of my CME for that period was in Medical management and quality assurance and I did receive my MBA in June of 1986. (P-5) [Emphasis supplied.]

       
       

   13. Mr. Schaffer's letter is not in evidence, and Respondent's foregoing June 12, 1990 letter suggests that Respondent was under the impression that Mr. Schaffer was asking him to submit only 1985 materials concerning risk management courses.

       
       

   14. It is noted that as of 6/7/90, Respondent was only required by law to have available documentation from 6/7/86 forward (four years from date of any CME course), and that if Respondent had completed all his required CME credits between January 1, 1986 and June 6, 1986, he was not required by statute and rule to retain and produce the proof thereof after June 6, 1990, and given the agency's return of his documents to him in February 1989 with no question raised to all his CME credits, but only to his risk management credits, it is not unreasonable that he might not have retained all of his CME documentation. However, in his response to Mr. Schaffer, Respondent has admitted that, contrary to law, he has failed to retain any CME materials more than two years.

       Likewise, once he was timely informed in February 1989 that his risk management hours were incompletely documented, he was on notice as of that date to submit proper documentation for his risk management hours, and as of that date charged with retaining and producing that documentation.

   15. After the Administrative Complaint herein was filed, the Respondent mailed to the DPR attorney of record a January 2, 1991 letter from "Prof. The Hon. Dr. M.E. West, O.M." on stationery of the University of the West Indies, Mona, Jamaica Campus. That letter states:

       
       

       TO WHOM IT MAY CONCERN CATEGORY 1 CME HOURS

       This is to certify that Dr. The Hon. Albert B. Lockhart has participated in a going Medical Education in the area of Risk Management from 1985-90.

       The hours are as following:- 1985 10 hours

       1986 12 hours

       1987 10 hours

       1988 15 hours

       1989 12 hours

       1990 10 hours

       TOTAL 69 hours

       (Signature)

       Prof. The Hon. Dr. M.E. West, OM (P-6)

       
       

   16. Rule 21M-28.002 (6) F.A.C. describes and defines the CME courses approved by the Board and does not on its face certify as approved the courses set out in the foregoing finding of fact.

       
       

   17. The letter from "Dr. West" is not verified or notarized, and there is no evidence in this record to establish who "Dr. West" is or what constitutes his authority with regard to "going" Medical Education, whatever that may be. Respondent did nothing further to establish his compliance with the Florida CME requirements. The result is that Respondent has only established that during 1986 and 1987, the years he was requested to document, he took 22 hours of medical education, which hours have not been shown to meet the quality standards established by the Board for either Category I CME or risk management courses, pursuant to rule. 1/

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

   19. The applicable law is as follows: Section 455.213(5) F.S.

       (5) As a condition of renewal of a license,

       the Board of Medical Examiners, the Board of Osteopathic Medical Examiners, the Board of Chiropractic, and the Board of Podiatry shall each require licensees which they respectively regulate to periodically demonstrate their professional competency by completing at least 40 hours of continuing education every 2 years, of which at least 5 hours shall concern risk management. Criteria

       for, and content of, continuing education courses shall be approved by the

       respective boards. The respective boards shall consider equivalent national or state educational courses, including those offered by a medical society or specialty organization, to fulfill part or all of the requirements of this subsection. The respective boards shall adopt rules to implement the provisions of this subsection.

       Rule 21M-28.002(1), F.A.C. Continuing Education for Biennial Renewal.

       1. Every physician licensed pursuant to Chapter 458, Florida Statutes, shall be required to complete 40 hours of continuing medical education courses approved by the Board in the 24 months preceding each biennial renewal period as established by the Department. At least 5 of such continuing medical education hours required for renewal shall concern risk management.

          Rule 21M-28.002(2)(a) and (b), F.A.C.

          (2)(a) For purposes of this rule, risk management means the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating identifiable risks.

          (b) The five hours of continuing medical education in the subject area of risk management may be obtained by the completion of formal courses, as provided in (6) of this rule, or by attending one full day or eight (8) hours, whichever is more, of disciplinary hearings at a regular meeting of the Board of Medicine ...

          Rule 21M-28.002(3), F.A.C.

          During the license renewal period of each biennium, an application for renewal will be mailed to each licensee

          at the last address provided to the Board.

          Failure to receive any notification during this period does not relieve the licensee of the responsibility of meeting the continuing education requirements.

          The application for renewal shall include a form on which the licensee shall state that he has completed the required continuing education. The licensee must retain such receipts, vouchers, certificates, or other papers, such as the physician's recognition awards issued by the AMA, as may be necessary to document completion of the continuing education listed on the renewal form for

          a period of not less than 4 years from the date the course was taken. The Board will audit at random a number of licensees as is necessary to assure that the continuing education requirements

          are met.

          Rule 21M-28.002(6), F.A.C.

          The following courses are approved by the Board:

          1. Organized courses approved for American Medical Association Category I Continuing Medical Education credits or accepted for the American Medical Association physician recognition award.

          2. Any postgraduate training program accredited by the Accreditation Council for Graduate Medical Education.

          3. The following specialty training: American College of Emergency Physicians. Category I; American Academy of Family Physicians prescribed credit; and American college of Obstetricians and Gynecologists cognates.

       
       

   20. Also, pursuant to Section 458.331(2) F.S., the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for any of the following violations of Section 458.331(1) F.S. (1990):

       
       

       1. Attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, by fraudulent misrepresentations, or through an error of the department or the board.

          * * *

          (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a

          lawfully issued subpoena of the department.

          
          

   21. See also, Rule 21M-28.002(4) F.A.C. placing the burden to document quantity and quality of courses upon the licensee:

       
       

       Failure to document compliance with the continuing education requirements or the furnishing of false or misleading information regarding compliance shall be grounds for disciplinary action up to and including license revocation.

       
       

   22. In a license disciplinary action such as this proceeding, the burden is on the Petitioner to establish the facts upon which its allegations of misconduct are based. Petitioner must prove its allegations by clear and convincing evidence. See, Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   23. Respondent violated a rule of the Board in that Respondent failed to maintain CME documentation for four years and failed to submit documentation verifying the necessary risk management credits of his continuing medical education for the period from January 1, 1986 through December 31, 1987 in response to the Board's random audit. See, 458.38(2)(x) F.S. and Rule 21M-

       28.002 F.A.C. In arriving at the foregoing conclusion, the undersigned has heavily weighted the Respondent's letter admission that he maintained no CME records more than two years and the fact that Petitioner began requesting documentation of Respondent's CME risk management hours in February 1989, which was certainly timely within the four-year rule requiring Respondent to preserve such records. However, due to the confusion created by the agency (see Findings of Fact 10 and 4), the undersigned does not conclude that Respondent failed to document all of his required CME hours.

       
       

   24. Petitioner urges the further conclusion that Respondent renewed his license by fraudulent misrepresentation in that Respondent falsely certified that he completed the continuing medical education requirements for the period from January 1, 1986 through December 31, 1987. In that regard, fraudulent misrepresentation requires mens rea, that is, a fully formed consciously fraudulent intent. There was no direct evidence of Respondent's intent.

       
       

   25. Since there is no direct evidence of Respondent's intent in this record, it is necessary to determine if an intent to defraud can be gleaned from Respondent's actions. In this cause, it cannot. It has been clearly and abundantly demonstrated that Respondent is a sloppy and cavalier record keeper who has failed to take seriously his obligations under Florida licensure standards, but this falls short of proving fraud. Respondent apparently attempted to comply with the audit requests as he understood them but did not meet the standard. He is not guilty of violating Section 458.331(1)(a) F.S.

       
       

   26. In recommending an appropriate penalty for Respondent's single violation, the disciplinary guidelines set forth in Rule 21M-20.001(2) F.A.C. have been considered, as well as the mitigating and aggravating factors enumerated in Rule 21M-20.001(3) F.A.C.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of Count I of the Administrative Complaint by violation of Section 458.331(1)(x) F.S. and not guilty of Count II of the Administrative Complaint, imposing a $5,000 penalty, and suspending Respondent's license until such time as he has paid the penalty and proved to the satisfaction of the Board that he has completed an additional approved 35 CME hours and 5 risk management CME hours, such hours to be in addition to any hours previously earned or required by rule.

DONE and ENTERED this 14th day of May, 1991, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.

ENDNOTES

1/ Ms. Portwine, a DPR paralegal, testified that she telephoned "Dr. O'Steen" at the AMA who told her that accreditation of CME courses is no longer through the AMA but is through the ACCME. [If so, the Board's rule may need to be amended. Cf--Rule 21M-28.002(6) at Finding of Fact 16 and Conclusion of Law 2] The undersigned infers from Ms. Portwine's testimony that she also made a second phone call to ACCME. Accordingly, in reliance thereon, Ms. Portwine determined that the University of the West Indies was not a Category I sponsor. What Ms.

Portwine was told by representatives of the AMA and ACCME would constitute hearsay if admitted to prove the alleged material fact that the University of the West Indies is not a Category I CME sponsor. Such hearsay without direct corroborative evidence may not legitimately form the basis of a finding of material fact that the University of the West Indies is not a Category I CME sponsor. However, in this instance, since it was the licensee's duty to submit CME credits, which credits must be in compliance with the Board's requirements, DPR's efforts in further trying to determine, by telephone call, the validity of Respondent's credits and being unable to do so only results in the same situation as when Respondent submitted the credits: Simply that those credits submitted by Respondent do not on their face meet the Board's audit requirements and its rules.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6322

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

Accepted as modified to more clearly reflect the greater weight of the evidence as a whole and to clarify evidentiary considerations.

Respondent's PFOF:

Respondent did not submit any proposed findings of fact.

COPIES FURNISHED TO:

William B. Nickell, Senior Attorney Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Albert Belville Lockhart, M.D.

375 Municipal Drive, #144 Richardson, TX 75080-3543

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006322

Orders for Case No: 90-006322