STATE OF FLORID

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2882

)

JOHN JACKSON, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October 27, 1995, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

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

Tallahassee, Florida 32399-0792

For Respondent: Roderick D. Vereen, Esquire

Office at Bay Point

4770 Biscayne Boulevard, Suite 1130

Miami, Florida 33137 STATEMENT OF THE ISSUES

1. Whether Respondent violated Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On July 19, 1994, the Agency for Health Care Administration (hereinafter referred to as the "Agency") issued an Amended Administrative Complaint against Respondent, a Florida-licensed medical doctor, alleging that Respondent violated Section 458.331(1)(x), Florida Statutes, by failing to do the following, as required by the Final Order issued by the Board of Medicine (hereinafter referred to as the "Board") on August 24, 1992, placing Respondent on probation for having committed various violations of Section 458.331(1), Florida Statutes: timely "provide copies of controlled substance prescriptions for February, 1993;" "provide copies of six sequentially numbered prescription forms for February/March of 1993 (numbers 1041-1047);" and "have his monitoring physician review fifty (50) percent of Respondent's patient records on a random basis at

least once every other month." In the Amended Administrative Complaint, the Agency indicated that it was "request[ing that] the Board of Medicine enter an Order imposing one or more of the following penalties: permanent revocation or suspension of the Respondent's license, restriction of the Respondent's practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, and/or any other relief that the Board deems appropriate."

Respondent denied the allegations of wrongdoing made against him in the Amended Administrative Complaint and requested a formal hearing. On June 7, 1995, the Agency referred the matter to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the formal hearing Respondent had requested.

The hearing was held on October 27, 1995. At the hearing, the Agency presented the testimony of two witnesses: Dahna Schaublin Bland, an investigator with the Agency; and Louis Collado, who formerly held a similar position with the Agency. In addition to the testimony of these two witnesses, the Agency offered, and the Hearing Officer received, eight exhibits (Petitioner's Exhibits 1 through 8) into evidence. Respondent did not present any evidence.

The deadline for the filing of post-hearing submittals was set at 10 days from the date of the Hearing Officer's receipt of the transcript of the final hearing. The Hearing Officer received the hearing transcript on November 14, 1995. The Agency timely filed a proposed recommended order on Monday, November 27, 1995. 1/ On December 5, 1995, Respondent filed an unopposed motion requesting a ten-day extension of the deadline for the filing of proposed recommended orders. By order issued December 6, 1995, the motion was granted. The extended deadline has passed and Respondent has yet to file any post-hearing submittal.

The Agency's proposed recommended order has been carefully considered by the Hearing Officer. The proposed "findings of fact" set forth in this proposed recommended order are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Agency is a state government licensing and regulatory agency.

   
   

2. Respondent is now, and has been since January 5, 1981, a medical doctor licensed to practice medicine in the State of Florida. His license number is ME 0037656.

   
   

3. In or about February of 1988, a complaint was made against Respondent alleging that he engaged, or attempted to engage, in the practice of medicine in this state without an active Florida license. The complaint was reviewed by the Probable Cause Panel of the Board, which disposed of the matter by issuing, on April 23, 1988, the following Closing Order:

   
   

   THE COMPLAINT: Complainant alleges that the Subject of the investigation practiced or attempted to practice medicine without an

   active license in violation of Section 458.327 (1)(a), Florida Statutes.

   
   

   THE FACTS: Investigation substantiated the allegations in that Subject's license to practice medicine expired December 31, 1987, and was placed in an inactive status. Subject practiced medicine with an inactive license until approximately February 5, 1988, before he took steps to renew his license.

   
   

   THE LAW: Based on the foregoing, there is sufficient evidence to support a finding of probable cause that Subject violated Section 458.327(1)(a), Florida Statutes, and there- fore is in violation of Section 458.331(1)(x), Florida Statutes. However, as Subject's license was inactive for a period of less

   than six months, this case should be closed by issuing Subject a Letter of Guidance.

   
   

   It is, therefore, ORDERED that the complaint be, and the same is hereby CLOSED with a Letter of Guidance.

   
   

4. In January of 1991, the Agency's predecessor, the Department of Professional Regulation, issued a 22-count Administrative Complaint against Respondent alleging that, in connection with his dealings with 11 patients in 1989 and 1990, Respondent violated subsections (1)(g)(Counts Twenty-One and Twenty-Two), (1)(m)(Counts Ten, Thirteen and Eighteen), (1)(q)(Counts Two, Five, Eight, Eleven, Fifteen and Nineteen), (1)(t)(Counts One, Four, Seven, Twelve, Fourteen, Sixteen and Twenty) and (1)(v)(Counts Three, Six, Nine and Seventeen) of Section 458.331, Florida Statutes.

   
   

5. Proceedings on these allegations were conducted in accordance with Section 120.57(2), Florida Statutes.

   
   

6. On August 24, 1992, the Board issued a Final Order finding Respondent guilty of the violations alleged in each of the 22 counts of the Administrative Complaint and disciplining him for having committed these violations.

   
   

7. That portion of the Final Order addressing the Respondent's punishment provided, in pertinent part, as follows:

   
   

   IT IS HEREBY ORDERED AND ADJUDGED:

   
   

   1. Respondent's license to practice medicine is REPRIMANDED.

   2. Respondent shall pay an administrative fine in the amount of $5000 to the Board of Medicine, Department of Professional Regula- tion, within 3 years of the date this Final Order is filed.

   3. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to the follow- ing terms and conditions: . . .

      f. 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 Probation Committee. Absent provision for and comp- liance with the terms regarding temporary approval of a monitoring physician, as provided below, Respondent shall cease pract- ice and not practice until the Probation Comm- ittee or the Board approves a monitoring physician. Respondent shall have the monitoring physician with Respondent at the

      first probation appearance before the Probation Committee. Prior to the approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Comp- laint and Final Order filed in this case.

      Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of this Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall

      be received by the Board office no later than fourteen days before the first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities

      of the monitoring physician shall include:

      1. Submit semi-annual 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 comp- liance 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. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month.

      3. Review 50 percent of Respondent's patient records selected on a random basis

         at least once every other month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every other 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.

      4. Review all patient records of patients treated with Schedule II-V controlled substances.

      5. Receive and review copies of all Schedule II-V controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances.

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

         1. Respondent shall submit semi-annual 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 probation terms.

            5. Describe relationship with monitoring/ supervisory physician.

            6. Advise Board of any problems. . .

      1. Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below:

         1. Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of said controlled substances.

         2. Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days.

         3. Respondent shall, within two weeks after issuance, provide one copy of each prescription for said controlled substances to his monitoring/supervising physician.

         4. Respondent shall maintain one copy of each prescription for said controlled sub- stances in the patient's medical record. This copy may be a xerox copy.

      2. During this period of probation, semi- annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice

      of medicine. . . .

      
      

8. At a meeting held November 18, 1992, Respondent received the approval of the Probation Committee to have Oliver Anderson, M.D., serve as his monitoring physician. Both Respondent and Dr. Anderson appeared before the Probation Committee at this November 18, 1992, meeting.

9. Dr. Anderson is in his late seventies.

   
   

10. Like Respondent, he has a general family practice.

    
    

11. He and Respondent have known each other for over ten years.

    
    

12. Dr. Anderson first visited Respondent's office, in his capacity as Respondent's monitoring physician, in February of 1993.

    
    

13. At the outset of the visit, Dr. Anderson asked for, and was given, a list of all the patients that Respondent had seen in the last two months. From the list, he randomly selected the names of 71 patients (which was one half the number of patients on the list). He then obtained from Respondent, and thereafter reviewed, the records Respondent maintained on these 71 patients.

    
    

14. Dahna Schaublin, a Department investigator, was assigned to serve as Respondent's probation monitor.

    
    

15. On or about February 10, 1993, she prepared and transmitted to her supervisor, Crystal Griffin, an investigative report concerning Respondent's compliance with the terms and conditions of his probation. In her report, Schaublin stated the following:

    
    

    A Final Order was filed on 8/24/92 regarding John Jackson, M.D. for prescribing Dilaudid

    to patients in 1989, violating FS. 458.331 (1)(q)(v). The Probation term is 08/24/92 to 08/23/95. Dr. Jackson was contacted and presented to the Miami BIS on 01/27/93 for

    an interview. He brought copies of prescript- ions for controlled drugs prescribed in Dec/ 1992-Jan/1993. Dr. Jackson did not have copies of other prescriptions with him stating he mailed one copy to the Board of Medicine and one copy to his physician monitor. Dr.

    Anderson, a family practitioner, is supervis- ing physician. Dr. Anderson has only been to Dr. Jackson's office on one occasion (the Order states he should review 50 percent of patient records on a random basis, and shall go to Dr. Jackson's office once every other month). Dr. Jackson decided to xerox each daily chart for each patient seen in the office and then mail Dr. Anderson a copy of the treatment chart (for that one occasion). Dr. Jackson stated that the reason he is not following the Order to the letter is because it was difficult for Dr. Anderson to review

    50 percent of his patient records in person every month. We told Dr. Jackson this practice was contrary to the Final Order and

    we suggested he inform the Probation Committee.

    Dr. Jackson has not paid his $5000 yet, stating that he has 5 years to do so. Dr. Jackson has gone before the Probation Committee two times.

16. Griffin inadvertently failed to forward Schaublin's investigative report to the Probation Committee. Accordingly, the Probation Committee took no action in response to the allegations made in the report.

    
    

17. Respondent did not provide Schaublin with copies of prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order. It was not until April 14, 1993, that Respondent furnished Schaublin with copies of these prescriptions (which were written on numbered prescription forms).

    
    

18. Respondent wrote prescription numbers 1041 through 1047 in April and May of 1993 (more specifically, prescription number 1041 on April 12, 1993; prescription number 1042 on April 14, 1993; prescription number 1043 on April 24, 1993; prescription number 1044 on April 26, 1993; prescription number 1045 on April 30, 1993; prescription number 1046 on May 2, 1993; and prescription number 1047 on May 12, 1993). These prescriptions were not among those that Respondent furnished copies of to Schaublin on April 14, 1993, however, none of them were written 30 days or more prior to April 14, 1993.

    
    

19. On or about March 17, 1993, Respondent submitted his first semi-annual probation report to the Department. In the fourth paragraph of his report, Respondent asserted the following:

    
    

    I have complied fully with the terms of my probation. I have taken the course

    "Protecting your Practice" at the University of South Florida. I meet as scheduled with my monitoring physician Dr. O.D. Anderson whose letter will be Coming soon to you. We cover for each other every week taking calls on Wednesdays for Dr. Anderson and Thursdays for myself. We also alternate taking calls for each other every other weekend. We discuss patient care, as per the order, for all scheduled prescriptions written.

    In his report, Respondent did not indicate that there were "any problems" concerning Dr. Anderson's compliance with the provisions of the Board's August 24, 1992, Final Order which prescribed the responsibilities of Respondent's monitoring physician.

    
    

20. Dr. Anderson submitted to the Department his first semi-annual report concerning Respondent's probation on or about June 13, 1993. In the third, fourth and fifth paragraphs of his report, Dr. Anderson asserted the following:

    
    

    In my opinion, Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his good attitude in my visits with him, and in his compliance with providing for me duplicate copies of his Numbered Schedule

    II-V prescriptions.

    Dr. Jackson and his office personnel have been very responsive in allowing my random

    selection of charts for review on my visits to his office.

    With his wife's support, Dr. Jackson has complied well with the requirements of his probation.

    
    

21. Although he indicated otherwise in his report, Dr. Anderson had made only one visit to Respondent's office in his capacity as Respondent's monitoring physician.

    
    

22. It was not until September of 1993, that he next visited Respondent's office in his capacity as Respondent's monitoring physician. In conducting his review during this visit, he followed essentially the same procedure that he had followed during his February visit.

    
    

23. In September of 1993, Respondent filed with the Board a Petition for Early Termination of Probation on the grounds of "1) hardship due to changed circumstances; and 2) fulfillment of purposes of penalty." In his petition, Respondent asserted that he had "fully complied with the requirements of probation with the exception of the fine." He did not mention that he had failed to provide Schaublin with copies of the prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order or that Dr. Anderson had failed to make the number of office visits required by paragraph 3f(3) of the Final Order.

    
    

24. Dr. Anderson wrote a letter, dated October 21, 1993, in support of Respondent's petition. The letter read as follows:

    
    

    This is an interim report following the first semi-annual report dated May 19, 1993, which I submitted. I was appointed monitoring

    physician for Dr. Jackson at the Miami November 18, 1992, meeting of the Probation Committee

    of the Department of Professional Regulation.

    Again I have reviewed the Administrative Complaint dated January 24, 1991, and also the Notice of Right to Judicial Review, and Certificate of Service signed August 24, 1992, which were received by Dr. Jackson.

    He is on probation for the inappropriate prescribing of Dilaudid to eleven patients in 1989.

    Dr. Jackson continues his good care of his private patients, and the Insurance PPO and HMO patients here in Hialeah, Florida.

    In my opinion Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his continuing compliance with providing for me the duplicate copies of his Numbered Schedule II-V prescriptions.

    Dr. Jackson continues to be very responsive in allowing my random selection of charts for review on my visits to his office.

    Dr. Jackson continues to be very aware of which medications fall into Schedule II-V.

    We both have copies of the Drug Abuse Prevent- ion and Control Schedule II-V list.

    This letter is written to support Dr. Jackson's release from probation. In my opinion he is worthy of release as demonstrated by his continuing compliance.

    
    

25. The Board considered Respondent's petition at its October 1-3, 1993, meeting. Both Respondent and Dr. Anderson addressed the Board during this meeting. Dr. Anderson told the Board that, in his opinion, Respondent had "corrected all his past difficulties very effectively."

    
    

26. By letter dated October 6, 1993, from Crystal Griffin, Respondent was informed of the Board's action. The letter read as follows:

    
    

    This is to inform you that the Florida Board of Medicine, in a meeting held October 1-3, 1993, . . voted to:

    Terminate your probation; however, you will be required to pay your administrative fine by August, 1995 and complete 300 hours of community service per year for a period of 2 years. Furthermore, you are required to submit a plan for your community service. You should receive an Order shortly.

    If you have any questions regarding this matter, please feel free to contact the Board office at (904) 488-0595.

    
    

27. Sometime after the Board's October 1-3, 1993, meeting, but before the Board had issued the written order promised in Griffin's October 6, 1993, letter to Respondent, Schaublin first learned about Respondent's petition and the Board's action thereon.

    
    

28. Thereafter, on December 7, 1993, she filed an investigative report concerning Respondent's compliance with the terms and conditions of his probation from the time of her last investigative report. In her December 7, 1993, report, she stated the following:

    
    

    Monitoring of the Subject's Probation is impeded because Dr. Jackson's failed to comply with terms of the Probation Order. The Final Order states: "k. Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: (2) Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days."

    Dr. Jackson: Did not provide copies of controlled substances prescriptions for February/March until April 14, 1993. There are 6 missing prescription forms from numbers 1041 to 1047. Dr. Jackson has failed to

    provide prescriptions for October/November 1993.

    This investigator met with Dr. Jackson at the Miami BIS on January 27, 1993 and requested copies of prescriptions be sent to

    this office within the 30 day time frame as mandated in the Final Order.

    A U.C.F. was issued by this Investigator on 12/7/93. This Investigator spoke with Constance Campbell on December 06, 1993 regarding Dr. Jackson's lack of compliance with the terms of the Final Order.

    We reported on 2/10/93 that Dr. Jackson's monitoring physician was not visiting his office "every other month" and making "random selection of the record[s]" as outlined in the Final Order f.(3).

    We are attaching copies of prescriptions for Controlled drugs for the months February 1993 through September 1993.

    
    

29. On May 24, 1994, the Board issued a written order terminating Respondent's probation. The order provided as follows:

    
    

    THIS CAUSE came on before the Board of Medicine (Board) on October 3, 1993, in Miami, Florida for the purpose of considering Respondent's request to terminate the probation imposed by the Board's Final Order filed August 2 [sic], 1992. Upon review of the request, the testimony and evidence offered in support thereof, the recommendation of the Board's Probation Committee, and being otherwise fully advised in the premises,

    
    

    IT IS HEREBY ORDERED AND ADJUDGED that

    Respondent's probation shall be terminated. However, Respondent is still required to pay the administrative fine of $5,000.00 imposed by the previous Final Order and said fine must be paid by August 2, 1995. Furthermore, Respondent is required to complete 300 hours per year of community service in an area where medical services are needed during each of the next two years.

    
    

    This Order shall take effect upon filing with the Clerk of the Department of Professional Regulation.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Board is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.

    
    

31. Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof of guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Nair v. Department of Business and Professional Regulation, 654 So.2d

    205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional

    Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

32. Where the discipline does not involve the loss of licensure, the physician's guilt need be established by only a preponderance of the evidence. See 458.331(3), Fla. Stat.; Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).

    
    

33. Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in the administrative complaint. See Klein

    v. Department of Business and Professional Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); Celaya v. Department of Professional Regulation, Board of Medicine, 560 So.2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of State,

    501 So.2d 129, 133 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

34. Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).

    
    

35. The Administrative Complaint issued in the instant case alleges that Respondent violated Section 458.331(1)(x), Florida Statutes, by "fail[ing] to provide copies of controlled substance prescriptions for February, 1993, until on or about April 14, 1993," "fail[ing] to provide copies of six sequentially numbered prescription forms for February/March of 1993 (numbers 1041-1047)," and "fail[ing] to have his monitoring physician review fifty (50) percent of Respondent's patient records on a random basis at least once every other month," as required by the Board's August 24, 1992, Final Order prescribing the terms and conditions of his probation.

    
    

36. The Agency had the burden of proving Respondent's guilt of this violation of Section 458.331(1)(x), Florida Statutes, by clear and convincing evidence, rather than by a preponderance of the evidence, inasmuch as the Administrative Complaint seeks, among other penalties, the revocation or suspension of Respondent's medical license.

    
    

37. At all times material to the instant case, subsection (1)(x) of Section 458.331, Florida Statutes, has authorized the taking of disciplinary action against a Florida-licensed physician for "[v]iolating . . . a lawful order previously entered in a disciplinary hearing."

    
    

38. The Board's August 24, 1992, Final Order is such a "lawful order."

    
    

39. The Agency has clearly and convincingly established that, as alleged in the Amended Administrative Complaint, Respondent violated this "lawful order," and therefore also subsection (1)(x) of Section 458.331, Florida Statutes, by waiting until approximately April 14, 1993, to provide his probation monitor, Schaublin, with copies of his controlled substance

    prescriptions for February, 1993, instead of providing her with these copies "within 30 days," as required by paragraph 3k(2) of the Final Order. Respondent should be disciplined for having committed this violation.

    
    

40. The Agency has also clearly and convincingly established that, as alleged in the Amended Administrative Complaint, the terms and conditions of the Board's August 24, 1992, Final Order were further violated by the failure of Respondent's monitoring physician to visit Respondent's office every other month to review patient records, as required by paragraph 3f(3) of the Final Order, and that this is a violation for which Respondent should be held responsible and disciplined pursuant subsection (1)(x) of Section 458.331, Florida Statutes, inasmuch as he failed to report this "problem" to the Board so that corrective action could be taken, notwithstanding his obligation to do so under the provisions of the Final Order.

    
    

41. Although the record evidence clearly and convincingly establishes that prescription numbers 1041-1047 were not among the prescriptions that Respondent furnished copies of to Schaublin on April 14, 1993, none of these prescriptions were written 30 days or more prior to April 14, 1993. Accordingly, Respondent's failure to have provided copies of these prescriptions to Schaublin on or before April 14, 1993, was not in violation of the Board's August 24, 1992, Final Order and therefore neither did it violate subsection (1)(x) of Section 458.331, Florida Statutes.

    
    

42. The Board is now, and was at all times material to the instant case, authorized to impose one or more of the following penalties for a violation of subsection (1) of Section 458.331, Florida Statutes: license revocation; license suspension; restriction of practice; an administrative fine not to exceed $5,000.00 for each count or separate offense; a reprimand; probation; a letter of concern; corrective action; and a refund of fees billed to and collected from the patient. Section 458.331(2), Fla. Stat.

    
    

43. In determining which of these penalties the Board should select, it is necessary to consult Chapter 59R-8, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

44. Subsection (2) of Rule 59R-8.001, Florida Administrative Code, sets forth "the ranges of penalties which will routinely be imposed" for a "single count violation" of each of the statutory provisions listed.

    
    

45. For a "single count violation" of subsection (1)(x) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 59R-8.001, Florida Administrative Code, is "[f]rom a reprimand to revocation or denial, and an administrative fine from $250.00 to

    $5,000.00."

    
    

46. Subsection (3) of Rule 59R-8.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.

    
    

47. The mitigating or aggravating circumstances that, according to subsection (3) of Rule 59R-8.001, Florida Administrative Code, may warrant such a deviation are as follows:

    1. Exposure of patient or public to injury or potential injury, physical or otherwise:

       none, slight, severe or death;

    2. Legal status at the time of the offense: no restraints or legal constraints;

    3. The number of counts or separate offenses established;

    4. The number of times the same offense or offenses have previously been committed by

       the licensee . . .;

    5. The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;

    6. Pecuniary benefit or self-gain inuring to the . . . licensee;

    7. Any other relevant mitigating factors.

    
    

48. Subsection (1) of Rule 59R-8.001, Florida Administrative Code, provides that "[m]ultiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation."

    
    

49. Having carefully considered the facts of the instant case, in light of the statutory and rule provisions set forth above, the Hearing Officer concludes that, for having committed the violations of subsection (1)(x) of Section 458.331, Florida Statutes, that the Agency has alleged in the Amended Administrative Complaint and proven by clear and convincing evidence, Respondent should be fined $2,500.00, suspended for a period of 30 days and placed on probation for a period of two years (subject to those terms and conditions the Board deems appropriate) beginning immediately after the end of his suspension.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order finding Respondent guilty of the violations of subsection (1)(x) of Section 458.331, Florida Statutes, alleged in the Amended Administrative Complaint, with the exception of the alleged violation relating to the submission of copies of prescription numbers 1041-1047, and disciplining him for having committed these violations by fining him $2,500.00, suspending his license for a period of 30 days and placing him on probation for a period of two years (subject to those terms and conditions the Board deems appropriate) beginning immediately after the end of the suspension.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of December, 1995.

STUART M. LERNER

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 26th day of December, 1995.

ENDNOTE

1/ The tenth day following the Hearing Officer's receipt of the hearing transcript was Friday, November 24, 1995, which was a legal holiday. The next day which was neither a Saturday, Sunday nor legal holiday was Monday, November 27, 1995. Pursuant to Rule 60Q-2.002, Florida Administrative Code, it was on this day that post-hearing submittals were originally due.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-2882

The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Agency in its proposed recommended order:

1-9. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. To the extent that this proposed finding states that, during his appearance before the Board at its October 1-3, 1993, meeting, Respondent "indicated that [he] had complied with the terms of probation," it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. Accepted and incorporated in substance.

3. To the extent that this proposed finding states that the Board received information indicating that "Respondent was fully complying with the terms of his probation," it has been accepted and incorporated in substance. To the extent that it states that "all of the information received by the Board," so indicated, it has been rejected because it lacks sufficient evidentiary/record support.

13-18. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that "until February, 1993, [Dr. Anderson] had not visited the Respondent's office to review records as required by the Final Order," it has been accepted and incorporated in substance. To the extent that it states that Dr. Anderson "later confirmed" this during his deposition, it has been rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact. See

   T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)("Hearing Officer's "factual findings" which "merely summarize[d] the testimony of witnesses" were "insufficient").

2. To the extent that this proposed finding states that "during the term of probation, [Dr. Anderson] only visited the Respondent's office twice to review records," it has been accepted and incorporated in substance. To the extent that it states that Dr. Anderson "stated" this during his deposition, it has been rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact.

3. Rejected because it is beyond the scope of the allegations set forth in the Amended Administrative Complaint.

4. Accepted and incorporated in substance.

5. Rejected because it lacks sufficient evidentiary/record support.

COPIES FURNISHED:

Monica L. Felder, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Roderick D. Vereen, Esquire Office at Bay Point

4770 Biscayne Boulevard

Miami, Florida 33137

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerome H. Hoffman, Esquire General Counsel

Agency for Health Care Administration 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 of time 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.

Docket for Case No: 95-002882

Orders for Case No: 95-002882