STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2358

) ALEJANDRO JOSE VILASUSO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 14, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Alex D. Barker, Esquire

Elaine Lucas, Esquire

Agency for Health Care Administration 7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211-7466

For Respondent: Lee Sims Kniskern, Esquire

2121 Ponce De Leon Boulevard, Suite 630 Coral Gables, Florida 33134-5222

STATEMENT OF THE ISSUE

The issue for determination at formal hearings was whether Respondent committed the offenses set forth in the amended administrative complaint, and, if so, what action should be taken.

PRELIMINARY STATEMENT

On December 20, 1993, the Department of Business and Professional Regulation, now the Agency for Health Care Administration (AHCA), filed an administrative complaint against Alejandro Jose Vilasuso, M.D. (VILASUSO). The AHCA alleged (1) that VILASUSO violated Section 458.331(1)(x), Florida Statutes, through violating Rule 61F6-26.002, Florida Administrative Code, formerly Rule 21M-26.002, Florida Administrative Code, by being guilty of improperly notifying his patients of the relocation of his practice, and through violating Section 458.319(5), Florida Statutes, by being guilty of failing to update the location of his practice, prior to relocating his practice, with the Board of Medicine; and (2) that he violated Section 458.331(1)(g), Florida Statutes, through a violation of Section 455.241(1), Florida Statutes, by being guilty of failing to release a patient's lab test results in a timely manner. VILASUSO, through an

election of rights form, disputed the allegations of fact in the administrative complaint and requested a formal hearing.

On April 28, 1994, this matter was referred to the Division of Administrative Hearings. A formal hearing was scheduled on October 14, 1994. Prior to hearing, the AHCA was granted leave to amend the administrative complaint, which was subsequently filed. In the amended administrative complaint, the AHCA charged VILASUSO (1) with violating Section 458.331(1)(x), Florida Statutes, through a violation of Rule 59R-10.002, Florida Administrative Code, by failing to place a notice in the newspaper advertising the effective date of his relocation and an address at which his patients could obtain their records and by failing to post a sign at his office, advising patients of their opportunity to transfer or receive their records; and (2) with violating Section 458.331(1)(g), Florida Statutes, through a violation of Section 455.241(2), Florida Statutes, by releasing a patient's records to a person other than the patient, the patient's legal representative or the patient's other health care provider.

At the hearing, the AHCA presented the testimony of three witnesses and entered five exhibits into evidence. VILASUSO testified on his own behalf and entered six exhibits into evidence.

A transcript of the formal hearing was ordered. At the request of the parties, the time for filing posthearing submissions was set for ten days following the filing of the transcript. An extension was subsequently granted for the filing of posthearing submissions. The parties submitted proposed findings of fact which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. The Agency for Health Care Administration (AHCA) is the state agency charged with regulating the practice of medicine pursuant to Sections 20.165 and 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes.

   
   

2. At all times material hereto, Alejandro Jose Vilasuso (VILASUSO) has been a physician licensed in the State of Florida, having been issued license number ME 0042999.

   
   

3. At all times material hereto, VILASUSO's primary practice was located at 4995 S.W. 82nd Street, Miami, Florida. This address was filed with the Board of Medicine and for the past five years was a part of its records.

   
   

4. Also, at all times material hereto, VILASUSO had a satellite office located at 2245 S.W. 27th Street, Miami, Florida.

   
   

5. On or about March 11, 1993, Patient J. K. presented to VILASUSO at his satellite office for hypertension. From March through June 1993, she had monthly appointments with him at the satellite office.

   
   

6. Patient J. K.'s former husband, Patient C. M., was having a prostate problem. Patient J. K. recommended that he consult with VILASUSO regarding his prostate problem.

   
   

7. On or about June 28, 1993, Patient C. M. presented to VILASUSO, at his satellite office, regarding the prostate problem. Patient J. K. accompanied Patient C. M. to VILASUSO's office.

8. Patient C. M.'s blood was drawn for lab tests. He was also provided with a two-week prescription for medication and scheduled for a follow-up appointment on July 8, 1993, at which time VILASUSO would discuss the lab results and his recommendations.

   
   

9. Patient C. M. informed Patient J. K. that he had had blood drawn for lab tests, regarding his prostate problem, and that he was returning on July 8, 1993, to discuss the test results with VILASUSO and his (VILASUSO's) recommendations.

   
   

10. VILASUSO and his landlord at the satellite office had been having an ongoing rent dispute, concerning an increase in VILASUSO's rent. VILASUSO had refused to sign a long-term lease agreement and, as a result, was on a month-to- month lease. Hoping to force a settlement of the dispute, VILASUSO withheld his rent for June 1993. However, in the last week of June, approximately two days before July 1, 1993, the landlord reacted by threatening to lock VILASUSO out of his office. It was clear to VILASUSO that the dispute could not be resolved and that he had to move on or before July 1, 1993.

    
    

11. On or about July 1, 1993, VILASUSO relocated his satellite office. However, he saw all patients scheduled for that day before relocating. He moved about five blocks away. Before leaving his office that day, VILASUSO indicated his new address on a piece of cardboard and posted it on the outside of the office. Telephone service for the satellite office was discontinued between June 28, 1993, and July 8, 1993.

    
    

12. Attempting to directly notify his patients of his relocation immediately after the move, VILASUSO directed his office staff to notify all patients by telephone who had an appointment within the following two weeks or who were very ill of the relocation and/or to reschedule their appointments. All other patients were notified of his new location by letter.

    
    

13. Patient C. M. had an upcoming appointment within the two-week period. However, for some unknown reason, he was not contacted and VILASUSO did not discover this mistake until sometime after Patient's C. M.'s scheduled appointment on July 8, 1993.

    
    

14. On or about July 6, 1993, Patient J. K. went to VILASUSO's former satellite office and found it deserted. She contacted Patient C. M. and told him what she had discovered.

    
    

15. On July 8, 1993, Patient C. M. was unable to keep his scheduled follow-up appointment because he was unaware of VILASUSO's new location.

    
    

16. On or about July 15, 1993, Patient J. K. discovered the location of VILASUSO's new satellite office and informed Patient C. M. On that same day, Patient J. K. went to VILASUSO's new office and requested a copy of Patient C. M.'s medical records. Believing that Patient J. K. was Patient C. M.'s confidant and that she was requesting the medical records on behalf of Patient

    C. M., VILASUSO released the records to her.

    
    

17. VILASUSO released a copy of Patient C .M.'s records to Patient J. K. without written authorization from Patient C. M. Patient J. K. was neither Patient C. M.'s legal representative nor his other health care provider.

18. On or about July 15, 1993, Patient J. K. notified Patient C. M. by telephone that she had obtained a copy of his medical records and was mailing the copy to him. Patient J. K. mailed the records, and Patient C. M. received them.

    
    

19. On June 29, 1993, VILASUSO had only received Patient C. M.'s partial lab results, so the medical file contained only the partial lab results. On July 20, 1993, VILASUSO received the remainder of the lab results, which were normal, and mailed them to Patient C. M.

    
    

20. At all times material hereto, VILASUSO did not place an advertisement in the newspaper notifying his patients of the effective date of his relocation and an address at which patients could obtain their records.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Subsection 120.57(1), Florida Statutes, and Section 455.225, Florida Statutes.

    
    

22. Pursuant to Subsection 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend, or otherwise discipline the license to practice medicine of any physician licensed in the State of Florida, who is found guilty of the acts enumerated in Subsection 458.331(1), Florida Statutes.

    
    

23. The Agency for Health Care Administration (AHCA) is not seeking to revoke or suspend the license of Alejandro Jose Vilasuso (VILASUSO). The burden of proof is on the AHCA to establish the truthfulness of the allegations of the amended administrative complaint by a preponderance of the evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987), and Subsection 458.331(3), Florida Statutes.

    
    

24. Section 458.331(1), Florida Statutes, provides in pertinent part that acts for which disciplinary action may be taken include:

    
    

    (g) failing to perform any statutory or

    legal obligation placed upon a licensed physician.

    * * *

    (x) Violating any provision of this chapter, a rule of the board or department. . . .

25. Section 455.241(2), Florida Statutes, provides in pertinent part: [S]uch records may not be furnished to, and the

    medical condition of a patient may not be discussed

    with, any person other than the patient or the patient's legal representative or other health care providers involved in the care or treatment of the patient, except upon written authorization of the patient . . . .

    
    

26. Rule 59R-10.002, Florida Administrative Code, formerly Rule 61F6- 26.002, Florida Administrative Code, provides in pertinent part:

    
    

    (4) When a licensed physician terminates practice or relocates and is no longer available to patients, patients should be notified of such termination,

    sale, or relocation and unavailability by the physician's causing to be published, in the newspaper of greatest general circulation in each county in which the physician practices or practiced and in a local newspaper that serves the immediate practice area, a notice which shall contain the date of termination, sale, or relocation and an address at which the records may be obtained from the physi-

    cian terminating or selling the practice or relocating or from another licensed physician . . . In addition, the licensed physician shall place in a conspicuous location in or on the facade of the physician's office, a sign, announcing the termination, sale, or reloca- tion of the practice. The sign shall be placed at least thirty days prior to the termination, sale, or relocation of practice and shall remain until the

    date of termination, sale, or relocation. Both the notice and the sign shall advise the licensed physician's patients of their opportunity to transfer or receive their records.

    
    

27. Rule 59R-10.002 implements Section 455.242, Florida Statutes, which provides in pertinent part:

    
    

    Each board created under the provisions of chapter 457, chapter 458 . . . shall provide by rule for the disposition, under said chapter, of the medical records . . . which are in existence at the time the practitioner dies, terminates practice, or relocates and is no longer available to patients and which records pertain to the practitioner's patients . . . .

    
    

28. The AHCA charges VILASUSO with two counts of violating Chapter 458, Florida Statutes. Count One charges him with violating Section 458.331(1)(x), through a violation of Rule 59R-10.002, by failing to place a notice in the newspaper advertising the effective date of his relocation and an address at which his patients could obtain their records and by failing to post a sign at his office, advising patients of their opportunity to transfer or receive their records. The preponderance of the evidence demonstrates, and VILASUSO admits, that he did not advertise the relocation of his satellite office in the newspaper, that he did not post a sign at his satellite office indicating the relocation thirty days prior to the move, that there was no notice to his patients of their opportunity to transfer or receive their records, and that Patients J. K. and C. M. saw him only at his satellite office.

    
    

29. The central issue of this alleged violation is whether VILASUSO was unavailable. The AHCA contends that he was unavailable because he relocated prior to notifying his patients and that Patient C. M. was not notified by VILASUSO as to where or how to contact him at his new satellite location even though he had an appointment scheduled a few days after the relocation. VILASUSO contends that he was not unavailable because his primary office remained at the same location and that his patients, including Patients J. K.

    and C. M., needed only to contact his primary office or the hospitals with which he consulted to contact him. 1/ The parties have not provided a definition of unavailability and have not pointed to a statutory provision, rule, or case law which defines unavailability as the term is used in relationship to this case.

30. Generally, an agency's interpretation of statutes it administers is accorded great deference and should not be overturned unless clearly erroneous. Pan American World Airways v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Maclen Rehabilitation Center v. Department of Health and Rehabilitative Services, 588 So.2d 12, 13 (Fla. 1st DCA 1991). Moreover, an agency's interpretation need not be the only possible interpretation or the most desirable one; it need only be within the range of possible interpretations. Department of Professional Regulation, Board of Medicine v. Durrani, 455 So.2d 515, 517 (Fla. 1st DCA 1984). However, where the legislative intent as evidenced by a statute is clear and unambiguous, there is no need for any construction or interpretation, and the forum need only give effect to the plain meaning of its terms. Van Pel v. Hilliard, 75 Fla. 792, 78 So.693 (1918).

    
    

31. Here, Section 455.242 is clear and unambiguous. According to Blacks Law Dictionary, Fifth Edition, "un" is a prefix which may mean simply "not' and "available" means "accessible" or "obtainable." Consequently, "unavailable" is deemed to mean "not accessible" or "not obtainable." In the case sub judice, the interpretation sought by the AHCA is clearly erroneous. VILASUSO was not unavailable as the term is used in Section 455.242. Hence, the AHCA has failed to demonstrate by a preponderance of evidence that VILASUSO violated Section 458.331(1)(x).

    
    

32. In Count Two, the AHCA charges VILASUSO with violating Section 458.331(1)(g), Florida Statutes, through a violation of Section 455.241(2), Florida Statutes, by releasing a patient's records to a person other than the patient, the patient's legal representative or the patient's other health care provider. It is undisputed that VILASUSO released a copy of Patient C. M.'s medical records to his ex-wife, Patient J. K., without written authorization and that Patient J. K. was not Patient's C. M.'s legal representative or his other health care provider. VILASUSO contends that he released the records to Patient

    J. K. because he considered her to be Patient C. M.'s confidant. VILASUSO has not pointed to any statute, rule, or case law to support his position.

    
    

33. Section 455.241(2) is clear and unambiguous. VILASUSO should not have released Patient C. M.'s medical records to Patient J. K. without written authorization, since Patient J. K. was not a member of the exempted class. Hence, the AHCA has demonstrated by a preponderance of evidence that VILASUSO has violated Section 458.331(1)(g).

    
    

34. Regarding penalty, Rule 59R-8, Florida Administrative Code, formerly Rule 61F6-20, Florida Administrative Code, provides disciplinary guidelines for violations of Chapter 458, Florida Statutes. For a violation of Section 458.331(1)(g), the rule provides a recommended penalty range from "a reprimand to revocation or denial, and an administrative fine from $250.00 to $5,000.00." The AHCA is not seeking to suspend or revoke VILASUSO's license, but is seeking an administrative fine of $5,000 and a requirement of reading Chapters 455 and 458, Florida Statutes, and submitting an affidavit attesting to such fact. 2/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final

order:

1. Dismissing Count One of the Amended Administrative Complaint.

2. Finding a violation of Section 458.331(1)(g), Florida Statutes, as stated in Count Two of the Amended Administrative Complaint.

   
   

3. Imposing a reprimand and an administrative fine of $1,500.

   
   

4. Imposing a requirement of reading Chapters 455 and 458, Florida Statutes, and submitting an affidavit attesting to such fact.

   
   

5. Imposing Continuing Education requirements concerning confidentiality of patient records under terms and conditions determined to be appropriate by the Board of Medicine.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995.

ERROL H. POWELL

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 23rd day of March 1995

ENDNOTES

1/ VILASUSO fails to be aware that the onus is not upon the patient to locate his or her physician, but the onus is upon him, the relocating physician, to make sure that his patients know how and where to reach him.

2/ The AHCA's proposed penalty is based upon VILASUSO being found guilty of violating both Sections 458.331(1)(g) and (x), F.S.

APPENDIX

The following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 2.

3 and 4. Partially accepted in finding of fact 5.

1. Rejected as not supported by the more credible evidence.

2. Partially accepted in findings of fact 7 and 8.

3. Partially accepted in finding of fact 8.

4. Partially accepted in findings of fact 5 and 7.

5. Partially accepted in findings of fact 10 and 11.

6. Partially accepted in finding of fact 11.

11 and 12. Rejected as contrary to the evidence.

1. Partially accepted in finding of fact 16.

2. Partially accepted in finding of fact 19.

(12-14 Are listed twice in the proposed findings. The following address the second set of findings.)

1. Partially accepted in findings of fact 16 and 17.

2. Partially accepted in finding of fact 11.

3. Partially accepted in finding of fact 20.

Respondent's Proposed Findings of Fact

1. Partially accepted in finding of fact 1.

2. Partially accepted in finding of fact 2.

3, 26 and 34-37. Rejected as being subordinate.

4 and 5. Partially accepted in findings of fact 3 and 11.

6, 31, 38, 40 and 42-44. Rejected as being argument, or conclusions of

law.

7 and 8. Partially accepted in finding of fact 5.

1. Partially accepted in finding of fact 7.

2. Partially accepted in finding of fact 16.

11 and 15. Partially accepted in finding of fact 6.

12. Partially accepted in findings of fact 7 and 8.

13 and 14. Partially accepted in finding of fact 8

16. Partially accepted in finding of fact 9.

17 and 18. Partially accepted in finding of fact 10.

19. Partially accepted in finding of fact 11.

20-22. Partially accepted in finding of fact 12. 23-24. Partially accepted in finding of fact 13.

25. Partially accepted in finding of fact 14.

27-29 and 39. Partially accepted in finding of fact 16.

30. Partially accepted in finding of fact 18.

32 and 33. Partially accepted in finding of fact 19.

41. Partially accepted in findings of fact 10 and 11.

45. Partially accepted in findings of fact 3, 4 and 11.

NOTE--Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, subordinate, not supported by the more credible evidence, not supported by the greater weight of the evidence, argument, or conclusion of law.

COPIES FURNISHED:

Alex D. Barker, Esquire Elaine Lucas, Esquire

Agency for Health Care Administration Suite 230

7960 Arlington Expressway

Jacksonville, Florida 32211-7466

Albert Peacock, Esquire Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Lee Sims Kniskern, Esquire Suite 630

2121 Ponce De Leon Boulevard Coral Gables, Florida 33134-5222

Dr. Marm Harris Executive Director Board of Medicine

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Sam Power,

Agency Clerk, The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Tom Wallace, Asst. Dir. General Counsel's Office The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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 contact 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.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATIONS BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO: 93-13221

vs. DOAH CASE NO: 94-2358

LICENSE NO: ME 0042999

ALEJANDRO JOSE VILASUSO, M.D.,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b) 10., Florida Statutes, on June 10, 1995, in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order and Petitioner's Response to Respondent's Exceptions (Attached as App. A, B and C) in the case of Agency for Health Care Administration, Board of Medicine v. Alejandro Jose Vilasuso, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was present and represented by Lee Sims Kniskern, Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Exceptions and Responses filed thereto and the Parties agreement not not seek attorneys fees or costs in this matter, this matter is hereby DISMISSED.

WHEREFORE, it is found, ordered and adjudged that the Administrative Complaint in this matter is DISMISSED.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 29th DAY OF June, 1995.

BOARD OF MEDICINE

GARY E. WINCHESTER, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Alejandro Jose Vilasuso, M.D., 4995 S.W.. 82nd Street, Miami, Florida 33143, Lee Sims Kniskern, Esquire, 2121 Ponce De Leon Blvd., Suite 630, Coral Gables, Florida 33134-5222 and Errol

H. Powell, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 30th day of June, 1995.

Marm Harris, Ed. D. Executive Director

Docket for Case No: 94-002358

Orders for Case No: 94-002358