STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION )

)

Petitioner, )

)

vs. ) CASE NO. 94-6475

) DENNIS ROBERT HOWARD, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on March 10, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Hugh Brown, Esquire

Staff Attorney

Agency of Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Dennis Robert Howard, M.D., pro se

6981 Thomaston Road

Macon, Georgia 31210-6614 STATEMENT OF THE ISSUE

The issues raised in the administrative complaint are whether the Respondent, Dr. Howard, failed to report in writing to the Florida Board of Medical Examiners that an action had been initiated against his Drug Enforcement Administration permit to prescribe medicine by the Georgia Board and his Georgia medical license, and whether an action was taken against Dr. Howard's license by the Georgia Board.

Dr. Howard asserted that he had notified the Florida Board as required, and admitted that he entered into a settlement of a complaint brought against him by the Georgia Board. The issues to be determined are whether Dr. Howard notified the Florida Board as required and what penalties may be assessed by the Florida Board based upon Dr. Howard's settlement of the complaint brought against him by the Georgia Board.

PRELIMINARY STATEMENT

On May 10, 1993, the Composite State Board of Medical Examiners of Georgia (the Georgia Board) summarily suspended the privileges of the Respondent, Dr.

Robert Dennis Howard, to prescribe controlled substances in Georgia. On May 17,

1993, the Georgia Board summarily suspended the Respondent's Georgia medical license. The Georgia Board notified the Florida Board in compliance with interstate compact that action had been taken against the Respondent's license. In March 1994, the Respondent requested reactivation of his Florida medical license which was inactive prior to May 1993, for nonpayment of licensing fees. At the time of the reactivation request, Dr. Howard's Florida records were flagged or annotated regarding disciplinary action having been taken by Georgia. On April 26, 1994, the Florida Board filed this complaint against Dr. Howard.

Upon the payment of the required fees and compliance with the other requirements, the Respondent's Florida license was reactivated in June 1994.

Dr. Howard requested a formal hearing on the administrative complaint filed by the Florida Board, and the case was referred to the Division of Administrative Hearings in November 1994. The case was noticed in December 1994, for hearing on March 10, 1995, and heard as noticed.

The Petitioner presented the testimony of its program administrator, Barbara Kemp, and introduced five exhibits into the record. The Respondent testified in his own behalf and introduced five exhibits into the record.

The Petitioner filed a proposed recommended order containing proposed findings which were read and considered. The Respondent filed a letter setting forth his argument regarding the charges against him which was read and considered. The Appendix to this order states which of the proposed findings were adopted, and which were rejected and why.

FINDINGS OF FACT

1. Robert Dennis Howard, M.D., holds Florida license to practice medicine ME 0019891. At the time of the events which gave rise to this complaint, Dr. Howard's license to practice medicine in Florida was inactive due to the nonpayment of licensing fees. In March 1994, subsequent to actions being taken against him in Georgia, Dr. Howard applied to reactivate his Florida license, and in June 1994, the Florida Board reactivated Dr. Howard's license.

   
   

2. On May 11, 1993, the Georgia Board served papers on Dr. Howard summarily suspending Dr. Howard's privileges to prescribe controlled substances for allegedly misprescribing medications to 13 patients.1

   
   

3. On May 13, 1993, Dr. Howard was admitted to Anchor Hospital at the direction of the Georgia Board for a 96 hour evaluation. The findings of this evaluation are discussed below.

   
   

4. On May 17, 1993, the Georgia Board summarily suspended Dr. Howard's license to practice medicine on charges of being impaired.

   
   

5. On June 1, 1993, Dr. Howard notified the Florida Board by letter that he held an expired Florida license which he let inadvertently lapse due to nonpayment of licensing fees, and that he had been served with papers suspending his controlled substances privileges, suspending his license to practice, and scheduling him for a hearing by the Georgia Board.

   
   

6. Dr. Howard notified the North Carolina Board, Savannah Regional Youth Development Center, and Georgia Academy of Family Physicians of the suspension of his license in early June 1993, and notified the State Board of Workers' Compensation, Georgia Medical Care Foundation, Coastal Emergency Services, Inc., Georgia Medical Society and Medical Association of Georgia of the suspension of

   his license in July 1993. In July 1993, Dr. Howard was advised by the Florida Board that it was investigating his failure to provide the state with notice within 30 days.

   
   

7. Dr. Howard made a copy of his letter to the Florida Board available to counsel for the Board prior to the formal hearing. The records custodian for the Board's records did not have a copy of the letter sent by Dr. Howard to the Board.

   
   

8. On July 27, 1993, a hearing was conducted by a hearing officer of the Georgia Board on the allegations that Dr. Howard had misprescribed medications for 13 patients. On August 16, 1993, the hearing officer dismissed these charges as unfounded.

   
   

9. The Georgia Board brought a third complaint against Dr. Howard on August 20, 1993, which reiterated the charges of impaired practice.

   
   

10. On September 22, 1993, the Superior Court of Fulton County, State of Georgia heard the appeal of Dr. Howard from Georgia Board's denial of the reinstatement of Dr. Howard's medical license (Docket Number 93-294). The Court's order found that the Georgia Board's hearing officer had dismissed the proceedings upon which one suspension order had been based (Docket Number 93- 294), and that the Georgia Board had not provided Dr. Howard with a hearing on the charges underlying the second suspension order, whereupon the court dismissed the second set of charges and reinstated his license pending resolution of the charges of impairment contained in a third complaint filed by the Georgia Board on August 20, 1993.

    
    

11. The Court comments that Dr. Howard shall not be allowed to prescribe drugs requiring DEA registration "until the DEA has reinstated his registration," an apparent reference to its lack of jurisdiction over the federal agency.

    
    

12. The charges of impairment contained in the third complaint were heard on September 22, 1993, and recessed after the presentation of the Board's expert witnesses on Dr. Howard's alleged impairment. The Georgia Board and Dr. Howard stipulated to the settlement of this complaint, Petitioner's Exhibit 5.

    
    

13. The consent order makes no findings, and specifically provides that the order shall not be construed as an admission of the part of Dr. Howard of the truth of any of the facts stated in the notices of hearings (complaints) filed against Dr. Howard. The order restored immediately Dr. Howard's right to practice and to prescribe.

    
    

14. The consent order required Dr. Howard to take a "mini-residency" in proper prescribing of controlled dangerous substances from the University of Medicine and Dentistry of New Jersey, Camden, New Jersey comprising a total of fifty hours. Dr. Howard agreed to periodic review and inspection of Dr. Howard's records of his patients and logs; to completely abstain from the consumption of all mood altering substances except as prescribed by a duly licensed practitioner other than himself for legitimate medical purposes; to random, witnessed drug screens; agree to physical or mental evaluation by physicians designated by the Board; and to other general provisions regarding notice to fellow practitioners, notice to the Board of suits, and abiding by all state and federal laws.

15. During the 96 hour evaluation, Dr. Howard was cooperative and admitted to physicians who examined him having self-prescribed codeine for colitis. He explained that he was originally diagnosed at Duke while on the faculty there, and was initially treated with Lomotil; however, he was started on codeine twice a day because it was less expensive and as effective. He had continued to use this medication daily for the treatment of this chronic condition. Dr. Howard repeated these admissions and explanations at hearing, and explained that he now takes a non-narcotic Lomotil for the relief of this condition.

    
    

16. Dr. Howard admitted to the physicians who examined him having self- prescribed valium for control of muscle spasms associated with low back pain. This medication had been originally prescribed for him after back surgery and he continued to use this medication at bedtime when he suffered flare-ups of back pain. Dr. Howard repeated these admissions and explanations at hearing, and explained that he now takes a non-narcotic muscle relaxant for the relief of this condition.

    
    

17. None of the materials provided regarding Dr. Howard's use of these medications indicated that his use of these medications was excessive although he acknowledged that it was inappropriate for him to have self-prescribed these medications.

    
    

18. Dr. Howard admitted to having abused alcohol and various illicit and controlled substances while in the services and stationed in Viet Nam and Guam during his service in the United States Air Force in the mid-60's.

    
    

19. Medical records were introduced of the 96 hour examination ordered by the Georgia Board in May 1993. There were no observations of withdrawal from either codeine, valium, or alcohol during Dr. Howard's 96 hour evaluation.

    These records reflect the opinions of three physicians regarding Dr. Howard's condition. A review of these records reveals that there was only one diagnostic criteria observed upon which a diagnosis of substance abuse could be based, that of continued drinking after medical findings showing reduced liver function.

    
    

20. Dr. Talbott's summary concludes that Dr. Howard's apparent lack of concern is an inappropriate affect given the charges then pending against him. Upon this basis, Dr. Talbott diagnoses Dr. Howard as suffering from opioid abuse, suspected opioid addiction, personality disorder, and unprofessional prescribing habits. The diagnosis of "unprofessional prescribing habits" is not a proper medical diagnosis, and there was no evidence in the record to support a diagnosis of substance abuse. See DSM IIIR, Page 165 et seq. The diagnosis of personality disorder is apparently based upon the Respondent's three divorces and his lack of emotional reaction to the charges against him. The facts reveal that only one set of charges had been filed against Dr. Howard at the time of the evaluation, those of misprescribing, and those were dismissed upon hearing. Dr. Howard may have exhibited the demeanor of an innocent man. Further, his psychological testing revealed that "there were indications of an underlying core of anger and resentment," which the psychologist could not attribute to recent events or more longstanding characterological features. The psychologist concluded that "[t]he lack of any objective indicators of emotional distress would tend to predict that Dr. Howard's emotional defense systems remained largely intact." In sum, the basis of Dr. Talbott's findings are not supported by appropriate medical findings or are contradicted by other objective findings.

    
    

21. A family assessment by a social worker was based upon an interview with Dr. Howard's daughter, who reported she had observed no evidence of drug or

    alcohol use or impairment. This report was noted by Dr. MacNabb, Dr. Howard's primary physician.

    
    

22. Although Dr. Blevins' report states that he lacks sufficient evidence to make a diagnosis of antisocial personality disorder, Dr. Blevins states, "I feel that this man is and has been a serious abuser of controlled substances and may well by (sic) chemically dependent in the technical sense." Dr. Blevin does not state what objective observations or data forms the basis for his feelings.

    
    

23. Dr. Prewett, a psychologist, administered a series of standardized tests to Dr. Howard. Dr. Howard had a superior intelligence, and did not exhibit symptoms of a man who had been drinking excessive amounts of alcohol recently or taking benzodiazepines. Dr. Prewett is the only clinician who makes a diagnostic finding which would substantiate a diagnosis of substance abuse based upon the criteria of DSM IIIR. Dr. Prewett concludes that Dr. Howard is abusing alcohol based upon Dr. Howard's use of alcohol in the face of elevations of significant liver enzymes indicating liver damage. Dr. Prewett states, "this patient, with his medical training, continued to use alcohol in the face of significantly abnormal liver functions would be considered most unusual and could possibly indicate a loss of control over the use of alcohol." However, Dr. Howard explained at hearing, that the physical examination and tests at Anchor revealed he had hepatitis with resultant liver abnormalities which had been previously undiagnosed. In sum, he did not know that he had a problem, therefore, Dr. Prewett's conclusions were based upon the erroneous fact that Dr. Howard knew of the problem.

    
    

24. Dr. MacNabb's discharge summary reports that Dr. Howard appeared to be generally in good health, with elevated cholesterol and blood pressure. Dr. MacNabb reported that Dr. Talbott did not feel he could make a definite diagnosis of chemical dependence, but felt Dr. Howard did exhibit opioid abuse with unprofessional self-prescribing habits, suspecting opioid addiction.

    Again, there is no medical diagnosis of "unprofessional self-prescribing." Dr. MacNabb indicated that he suspected polysubstance dependence, but at that point stated that he could not prove that the patient is chemically dependent.

    
    

25. Drug screens conducted upon his admission to the evaluation found valium consistent with Dr. Howard's described use. Because he had discontinued using the codeine prior to admission, there were no traces of it in his tests. None of the treating or consulting physicians reported the first clinical symptom of withdrawal from psychoactive substances.

    
    

26. Dr. Howard introduced the records of his examination by William H. Nelson, M.D., a professor of psychiatry at Mercer University School of Medicine. Dr. Nelson interviewed Dr. Howard, had a drug screen conducted, and reviewed the records from Anchor Hospital. Dr. Nelson concluded that Dr. Howard had adjustment disorder with mixed emotional features and a past history of adolescent and young adult substance abuse, in current remission. This diagnosis is consistent with DSM IIIR. Dr. Nelson's medical opinion was that Dr. Howard was not impaired. Dr. Nelson found that Dr. Howard's stress was due to his professional legal problems, but this was not significant enough to impair Dr. Howard's ability to practice. See Respondent's Exhibit 5.

    
    

27. Dr. Howard testified at hearing and was equally forthright about his use of drug in the 60's, and his self-prescription of codeine and valium. He denied abuse of codeine, valium, or alcohol. He recognized that his self prescribing of valium and codeine were inappropriate.

28. Dr. Howard agreed to the settlement of the charges brought by the Georgia Board because of the expense of the litigation in which he had been involved, the fact that he was not making any money during that period, and the fact that he could live with the conditions placed upon his practice more easily and cheaply than continuing to litigate the case.

    
    

29. Dr. Howard testified concerning his hepatitis and its effect upon his liver function tests. He was unaware of having hepatitis until his evaluation. He probably contracted it from exposure to patients in the emergency room. Based upon the reports contained in Petitioner's Exhibit 5, his liver dysfunction was based upon the hepatitis, and not any prior excessive drinking based upon the enzyme studies.

    
    

30. Dr. Howard introduced a composite exhibit of blood tests (Respondent's Exhibit 6) taken before and after his infection which he stated showed that his liver dysfunction was not the result of alcohol abuse.

    
    

31. Dr. Howard had no objection to the Florida Board imposing conditions similar to those imposed by the Georgia Board. He objected to a proposed suspension of his privileges, being subjected to evaluation again, and placement in an impaired physician's program.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

33. The Board of Medical Examiners has charged Dr. Howard with failing to report to the Board action taken against his license by the Georgia Board contrary to Section 458.331(1)(kk), Florida Statutes. The facts reveal that Dr. Howard did notify the Board by letter. Dr. Howard provided the Board's counsel a copy of the letter sent to the Board prior to the hearing. At hearing, Dr. Howard produced letters to the North Carolina Board, Savannah Regional Youth Development Center, and Georgia Academy of Family Physicians of the suspension of his license in early June 1993. The records custodian testified that Dr. Howard's records do not contain the letter; however, that does not prove that Dr. Howard did not mail the letter introduced at hearing to the Board.

    
    

34. The Board also charges Dr. Howard with violation of Section 458.331(1)(b), Florida Statutes, which provides:

    
    

    1. having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivision. The licensing authority's acceptance of a . . . consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license.

35. The range of penalties for violation of Section 458.331(1)(b), supra, is as follows:

    
    

    1. From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the juris-

       diction in which disciplinary action was originally taken, and an administrative fine ranging from

       $250.00 to $5,000.00.

       
       

36. The Respondent does not controvert that he settled his case with the Georgia Board. That settlement states that it should not be construed as an admission of the charges against Respondent. The charge against the Respondent was that he was impaired by substance abuse.

    
    

37. The Petitioner evidence presented to prove that the Respondent was impaired were the medical records of the evaluation conducted at Anchor Hospital. A review of these records reveal that their findings are contradictory, that their findings are not based upon medical evidence, and that they were improper diagnoses. The doctors may have had a lot of suspicions, but they had no proof that the Respondent was abusing drugs or addicted. Their reports state this. There is no basis to conclude from these records that the Respondent was abusing drugs or was addicted.

    
    

38. The Respondent submitted the findings of a psychiatric evaluation performed by a licensedb psychiatrist which concluded that the Respondent was not impaired. See Respondent's Exhibit 5.

    
    

39. The Respondent admitted he self-prescribed; however, there is no evidence that the Respondent was charged with this in Georgia. Regarding the allegations of abuse or addiction based upon self prescribing, the only competent evidence presented was Dr. Howard's testimony that he self-prescribed codeine and valium in the dosages and in the manner in which these drugs had originally been prescribed by other practitioners. There is no evidence that Dr. Howard was taking them in any other manner. The Respondent was required by the Georgia Board to attend a mini-residency on prescribing drugs; however, there is no evidence that he was charged with self-prescribing. In any event, his privileges to prescribe have been restored in Georgia.

    
    

40. The range of penalty which one can impose for an offense must have some relationship to the offense. This is the rationale for codifying penalties. A violation of Section 458.331(1)(b), Florida Statutes, which involves a settlement in which there is neither an admission nor findings raises serious problems under the formula adopted by the Board. As in this case, where there is a serious charge of impairment, but not proof and not admissions, there is no means to assess what occurred except the penalty assessed by Georgia. Florida may not base its penalty upon the allegations of impairment, which were not proven or admitted in Georgia and which were not proven or admitted in Florida, solely on the basis of a settlement. In this case, the Georgia Board did not require the Respondent to participate in an impaired physician's program.

    
    

41. The penalties sought by the Florida Board are a $2,000 fine, suspension until the Respondent demonstrates he can practice medicine with requisite skill and safety through evaluation by the Physician's Recovery

Network, and five years probation. A fine is inappropriate because the Respondent was willing for the Florida Board to impose the same conditions imposed by Georgia, and the other penalties proposed, except the five year probation, are not supported by the factual record.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

That the Board impose a probation of five years upon the Respondent during which it can require him to do any of the things required in the agreement between the Respondent and the Georgia Board except those things which have already been performed and which are not recurring requirements.

DONE and ENTERED this 19th day of April, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 19th day of April, 1995.

ENDNOTE

1/ The record is unclear on the relationship between the Georgia Board and the Federal DEA; however, although the Board's order is couched as a "suspension" of prescription privileges, it directs that Dr. Howard surrender his DEA registration to the DEA. It is concluded that the Georgia Board has the authority to restrict a physician's authority to prescribe medications, and that the DEA also plays a part in this scheme of regulation.)

APPENDIX

The Petitioner filed proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why:

Petitioner's Recommended Order Findings

Paragraph 1 Subsumed in paragraph 1

Paragraph 2 Irrelevant

Paragraph 3,4 Paragraph 2

Paragraph 5,6 Paragraph 4

Paragraph 7 Irrelevant because no charges were brought on these allegations and they were dismissed by

the court.

Paragraph 8 Dr. Howard was not required to undergo

examination because of his suspension. His medical license was not suspended until the last day of his evaluation.

Paragraph 9 Subsumed in paragraph 10

Paragraph 10 Subsumed in paragraphs 11,12, and 13

Paragraph 11 Subsumed in paragraphs 15,16, 17, and 19 Paragraph 12 Dr. Howard testified that prescribing valium

and codeine for himself were misdemeanors in Georgia; however, it is not established that this was ever charged by the Georgia Board.

Paragraph 13 Ms. Kemp is the Board's record custodian and testified that she did not have a copy of the Respondent's June 1, 1993 letter in the Board's records; however, this does not establish that Dr. Howard did not provide the Board with the required notice.

Paragraph 14 The Florida Board received notice of the

Georgia Board's action against Dr. Howard's license prior to the Florida Board's letter of July 1993. It is irrelevant when Ms. Kemp became personally aware of the Georgia Board's action.

Paragraph 15 Ms. Kemp did not have the Respondent's June 1, 1993 letter in his file. However, this was not deemed probative of whether the Respondent gave notice of the Georgia Board's action in light of introduction of the June 1, 1993 letter and other letters written by the Respondent contemporaneously with the letter to the Florida Board.

Paragraph 16 There is nothing in the June 1, 1993 letter which would require action to reactivate the Respondent's license. Ms. Kemp's testimony is rejected as a self-serving statement to support the proposition that had the Board received the letter it would have taken some action.

However, the fact that the Board took no action, is also not probative of whether Dr. Howard sent the letter.

Paragraph 17,18 Paragraph 1

Paragraph 19 True, subsumed in 6,7.

Paragraph 20 Rejected as contrary to better evidence. See comments to paragraph 15, above.

Paragraph 21 Paragraphs 3 and 15.

Paragraph 22 Irrelevant.

Paragraph 23-25 Rejected based upon a detailed discussion of the records contained in Paragraphs 15-25.

COPIES FURNISHED:

Hugh Brown, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dennis Robert Howard, M.D. 6981 Thomaston Road

Macon, GA 31210-6614

Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, FL 32399-0792

Tom Wallace, Assistant Director Agency for Health Care Administration

301 Atrium Building

325 John Knox Road Tallahassee, FL 32303-4131

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. 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 ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner

1. AHCA CASE NO: 93-11977

   DOAH CASE NO: 94-6475

   DENNIS R. HOWARD, M.D., LICENSE NO: ME 0019891

   
   

   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 (Attached as App. A) in the case of Agency for Health Care Administration, Board of Medicine v. Dennis R. Howard, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was present and was pro se. 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:

   
   

   EXCEPTIONS TO FINDINGS OF FACT

   
   

   1. The Hearing Officer's Finding of Fact in paragraph 5 of the Recommended Order that the Respondent made certain notification to the Florida Board of Medicine is rejected as not being supported by competent substantial evidence.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact, as amended, are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

2. There is competent, substantial evidence to support the Board's findings, as amended, herein.

EXCEPTIONS TO CONCLUSIONS OF LAW

1. The Hearing Officer's Conclusion of Law in paragraph 33, except for the first sentence, that the Respondent made certain notification to the Florida Board of Medicine, is rejected as not being supported by competent substantial evidence.

   
   

2. The Hearing Officer's Conclusion of Law in paragraph 40, that the Board is limited in imposing a penalty for the violation of Section 458.331(1)(b) if the action of the other state was based upon a settlement and not findings of facts or admissions, is rejected as being inconsistent with the provisions of the Rules of the Board of Medicine, Rule 59R-8.001, Florida Administrative Code.

   
   

3. The Hearing Officer's Conclusion of Law in paragraph 41, except for the first sentence, that a fine is inappropriate and that penalties proposed other than probation are not supported by the record, is rejected based upon the exception to paragraph 40 of the Recommended Order as set forth above and the finding of the Board that the Respondent is in violation of both Sections 458.331(1)(b) and (kk), Florida Statutes, as not being supported by competent substantial evidence.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties-and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

2. The findings of fact set forth above establish that Respondent has violated Section 458.331(1)(b) and (kk), Florida Statutes as charged in the Administrative Complaint.

   
   

3. The Conclusions of Law of the Recommended Order, as amended, are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, and the Board's Exceptions thereto, the Hearing Officer's recommended penalty is rejected and the Board finds that the Respondent is in violation of Sections 458.331(1)(b) and (kk), Florida Statutes.

WHEREFORE, it is found, ordered and adjudged that the Respondent is guilty of violating Sections 458.331(1)(b) and (kk), Florida Statutes and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty:

1. Upon the filing of the Final Order in this cause, the Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of five (5) years. Said terms and conditions of probation are as follows:

1. Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and

   Rule 59R, Florida Administrative Code.

   
   

2. Respondent shall appear before the Board's Probationer's Committee at the first meeting after said probation commences, at the last meeting of the Board's Probationer's Committee preceding termination of probation, annually, and at such other times as requested by the Board's Probationer's Committee. Respondent shall be noticed by Board staff of the date, time and place of the meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order entered in this matter, and shall subject the Respondent to disciplinary action.

   
   

3. In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.

   
   

4. In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:

   
   

   1. The time period of probation shall be tolled.

      
      

   2. The provisions regarding supervision, whether direct or indirect by another physician.

      
      

   3. The provisions regarding preparation of investigative reports detailing compliance with this Stipulation.

   
   

5. In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate his

   ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.

   
   

6. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:

1. Submit semiannual reports, in affidavit form, which shall include:

   
   

   1. Brief statement of why physician is on probation.

      
      

   2. Description of probationer's practice.

      
      

   3. Brief statement of probationer's compliance with terms of probation.

      
      

   4. Brief description of probationer's relationship with monitoring physician.

      
      

   5. Detail any problems which may have arisen with probationer.

   
   

   Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.

   
   

2. Review 25 percent percent of Respondent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.

   
   

3. Receive and review copies of all scheduled and controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of such substances.

   
   

4. Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.

1. The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's supervisory/monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed supervising/monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Agency for Health Care Administration, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399- 0750. In order to provide time for Respondent's proposed supervisory/monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's supervising/monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the supervising/monitoring physician is temporarily approved. In the event that the proposed monitoring/supervising physician is not approved, then Respondent shall cease practicing immediately. Should Respondent's monitoring/supervising physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring/supervising physician is approved.

   
   

2. In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervising/monitoring physician to be approved by the Board or its Probationer' Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring/supervising physician during those periods of time which Respondent's monitoring/supervising physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician or the direct supervision of the alternate supervising physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring/supervising physician. Respondent shall not practice unless he is under the supervision of either the approved supervising/monitoring physician or the approved alternate.

   
   

3. Respondent shall submit semiannual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

   
   

   1. Brief statement of why physician is on probation.

      
      

   2. Practice location

      
      

   3. Describe current practice (type and composition).

      
      

   4. Brief statement of compliance with probationary terms.

      
      

   5. Describe relationship with monitoring/supervising physician.

      
      

   6. Advise Board of any problems.

4. Within sixty (60) days of the filing of the Final Order in this cause, the Respondent shall be required to have a physical and mental examination performed by the Physicians' Recovery Network. The Respondent shall participate and comply with the Physicians' Recovery Network. The Respondent shall comply with all of the conditions of his contract with the Florida Medical Foundation's Physicians' Recovery Network. The Respondent shall execute a release for the Physicians' Recovery Network to authorize the Network to release information and medical records (including psychiatric records and records relating to treatment for drug dependence and alcoholism) to the Board as needed to monitor the progress of Respondent in the Network's program.

   
   

5. Respondent shall cause the director of the Physicians' Recovery Network to report to the Board any problems that may occur with Respondent and any violations of Chapter 458, Florida Statutes, that occur. Respondent shall cause the director to make such a report within 30 days of the occurrence of any problems, or violations of Chapter 458, Florida Statutes.

   
   

6. Respondent shall submit to random blood and/or urine testing for the purposes of ascertaining Respondent's compliance with his probation. The random blood and/or urine screen shall be conducted as follows:

   
   

   1. An investigator shall at unannounced times present himself to the Respondent and shall request that the Respondent furnish a specimen of blood and/or urine specimen and provide it in the presence of an investigator.

      
      

   2. The Respondent shall, upon such request, immediately provide said blood and/or urine specimen and shall provide it in the presence of the investigator.

      
      

   3. Respondent shall not at any time refuse to immediately provide the requested specimen.

      
      

   4. Respondent shall, at the time that the specimen is furnished, advise the investigator of all drugs or medications taken by the Respondent (whether legend or otherwise) in the period since the last random specimen was obtained.

   
   

7. Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of all scheduled and controlled substances.

   
   

8. Respondent understands that during this period of probation, semiannual investigative reports will be compiled with the Department concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.

   
   

9. Respondent shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing compliance with the terms of the Final Order entered in this case, the cost of analysis of any blood or urine specimens submitted pursuant to the Final Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.

PROVISIONS GOVERNING PHYSICIANS PRACTICING UNDER SUPERVISION OF ANOTHER PHYSICIAN

1. DEFINITIONS:

   
   

   1. INDIRECT SUPERVISION is supervision by a monitoring physician whose responsibilities are set by the Board. Indirect supervision does not require that the monitor practice on the same premises as the Respondent. However, the monitor shall practice within a reasonable geographic proximity to Respondent, which shall be within 20 miles unless otherwise provided by the Board's Probationer's Committee, and shall be readily available for consultation. The monitor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Board's Probationer's Committee.

      
      

   2. DIRECT SUPERVISION is supervision by a supervising physician. Direct supervision requires that the supervisor and Respondent work on the same premises. Specific responsibilities are set by the Board. The supervisor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Probationer's Committee.

      
      

2. Provisions governing all supervised or monitored physicians:

A. The supervisor/monitor shall be furnished with copies of the Administrative Complaint, Final Order, Stipulation (if applicable), and other relevant orders.

The Respondent shall not practice without a monitoring or supervising physician unless otherwise ordered by the Board. The Respondent shall appear at the next meeting of the Board's Probationer's Committee following entry of a Final Order with his proposed supervisor or monitor unless otherwise ordered by the Board. In the event that Respondent has not obtained temporary approval of his monitor or supervisor by the Chairman of the Board's Probationer's committee prior to that first meeting of the Board's Probationer's Committee, then Respondent may not practice medicine until he has obtained such approval.

Temporary approval is only available if provided for in the Final Order.

1. After the next meeting of the Board's Probationer's Committee occurs Respondent shall only practice under the supervision of the supervisor or monitor. If for any reason the approved supervisor or monitor is unwilling or unable to serve, Respondent shall immediately notify the Executive Director of the Board and shall cease practice until a temporary supervisor/monitor is approved. The chairman of the Board's Probationer's Committee may approve a temporary supervisor or monitor who may serve in that capacity until the next meeting of the Board's Probationer's Committee at which time the Board's Probationer's Committee shall accept or reject a new proposed supervisor or monitor. If the new proposed supervisor/monitor is rejected, Respondent shall cease practice until a new supervisor or monitor is temporarily approved by the Chairman of the Board's Probationer's Committee. Furthermore, the monitoring or supervising physician shall appear at the next meeting of the Board's Probationer's Committee, and at such other times as are requested by the Board's Probationer's Committee. Failure to appear by the monitor or supervisor as directed shall constitute a violation of the Board's Final Order.

   
   

2. The supervisor or monitor must be a licensee under Chapter 458, Florida Statutes, in good standing without restriction or limitation on his license. In addition, the Board's Probationer's Committee may reject any proposed supervisor or monitor on the basis that he has previously been subject to any disciplinary

action against his medical license in this or any other jurisdiction. The supervisor or monitor must be actively engaged in the same or similar specialty area unless otherwise provided by the Board's Probationer's Committee. The Board's Probationer's Committee may also reject the proposed supervisor/monitor for good cause shown.

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 10th 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 Dennis R. Howard, M.D., 6981 Thomaston Road, Macon, Georgia 31210-6614, Stephen F. Dean, 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 17th day of July, 1995.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 94-006475

Orders for Case No: 94-006475