STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE No. 91-1576

)

KAREN L. DAVIS, R.C.P., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on July 2, 1991, in Tampa, Florida.

APPEARANCES

For Petitioner: William B. Nickell, Esquire

Senior Attorney

Department of Professional Regulation

1940 North Monroe, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Karen L. Davis, pro se

13001 Jocelyn Way

Spring Hill, Florida 34609 STATEMENT OF THE ISSUES

Whether or not Respondent engaged in proscribed conduct, to wit, violation of a rule of the Department or Board by attempting to obtain or renew a license to practice respiratory care by fraudulent misrepresentation as is more specifically set forth in the Amended Administrative Complaint filed herein dated December 19, 1990.

PRELIMINARY STATEMENT

By its Administrative Complaint filed herein dated December 19, 1990, Petitioner seeks to impose disciplinary sanctions against Respondent based on allegations that she violated a rule of the Department or Board and attempted to obtain or renew a license to practice respiratory care by fraudulent misrepresentation, in violation of Subsections 468.365(1)(j) and (a), Florida Statutes. During the hearing, Petitioner requested leave to amend the Administrative Complaint to correct a scrivener's error to show that the correct biennium herein is January 1, 1987 through December 31, 1988. Petitioner's motion to amend was granted without objection from Respondent. Petitioner's exhibits 1-6 were offered and received into evidence at the hearing, as were

Respondent's exhibits 1-4. Official recognition was taken of Rule Chapter 21M- 38, Florida Administrative Code and Chapter 468, Florida Statutes. Petitioner presented the deposition testimony of Suzanne Lee, William B. Lemocks and George Schaefer. Respondent testified on her behalf during the hearing.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, the following relevant facts are found:

FINDINGS OF FACT

1. Petitioner, the Board of Medicine, is the state agency charged with regulating the practice of medicine and respiratory care.

   
   

2. Respondent is, and has been at times material hereto, a licensed respiratory care practitioner in Florida, having been issued license number TT 0002632.

   
   

3. As a condition of renewal of her certificate/ registration to practice respiratory care, Petitioner requires licensed registrants, as Respondent, to periodically demonstrate their professional competency by completing at least twenty-four (24) hours of continuing education every two (2) years, of which at least three (3) hours shall concern Human Immune Deficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS). The criteria for and content of the continuing education courses are required to be approved by the Board prior to a registrant obtaining credit for such courses. To be accepted, Petitioner requires the registrant to demonstrate, inter alia, that the course was either presented by a live faculty or it was approved by the Board's Advisory Council.

   
   

4. As part of her effort to renew her certificate, on or about December 16, 1988, Respondent signed the following statement which was thereafter submitted as part of her renewal request to practice respiratory care:

   
   

   I hereby affirm that I have earned the CONTINUING EDUCATION UNIT hours required by the DEPARTMENT OF PROFESSIONAL REGULATION to

   renew my license. I understand within the next two years I maybe required to submit a listing of my courses along with proof of completion if my license number is selected for audit. I also understand that it is my responsibility to maintain for a review by the DEPARTMENT, all CONTINUING EDUCATION

   DOCUMENTATION referenced herein.

   I affirm that these statements are true and correct and recognize that providing false information may result in a fine, suspension, or revocation of my license as provided in F.S. 455.2275, F.S. 775.082, or F.S. 775.084.

   
   

5. The above statement was required to be completed by Respondent as part of her renewal process for the licensing period from January 1, 1987 through December 31, 1988. Petitioner relied on Respondent's affirmation that she completed the required courses when her renewal application was considered. Without executing that statement, Respondent could not have renewed her license to practice respiratory care in Florida.

6. Respondent successfully renewed her license application to practice respiratory care in Florida, which renewal was, in part, based on Respondent's execution of the above-referenced statement regarding completion of the required continuing education credits.

   
   

7. Subsequently, Respondent was the subject of a random audit by Petitioner to verify her continuing education credits for the period in question. On or about June 26, 1990, Respondent submitted verification for twenty-four (24) hours of continuing education. However, four (4) of the courses submitted by Respondent were self-study courses given by videotape, were not approved by the Board, and did not qualify for the required continuing education.

   
   

8. The courses that Respondent took through the Department of Health and Rehabilitative Services in Gainesville did not have a provider number from either the AMA, AARC, RJRCTE, nor any other approval body or accredited association.

   
   

9. The Advisory Council for Respiratory Therapy never indicated or agreed to accept or use HRS hours for continued education units from Respondent which were not approved.

   
   

10. Eight (8) of the hours submitted by Respondent for satisfaction of the continuing educational requirement, in addition to the HRS hours, do not have an appropriate certified provider number.

    
    

11. Respondent did not maintain or provide to Petitioner the required documentation for the Board's random audit to verify that she successfully completed the continuing education requirements for the biennium in question.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

14. The authority of the Petitioner is derived from Chapters 458 and 468, Florida Statutes.

    
    

15. Petitioner is authorized to suspend, revoke, or otherwise discipline the license of a respiratory care practitioner for violating any rule of the Board or for procuring, attempting to procure, or renewing a certificate of registration by false misrepresentation, or through an error of the department or the Board. Sections 468.365(1)(a) and (j), Florida Statutes.

    
    

16. Petitioner has the burden of establishing, by clear and convincing evidence, the allegations of misconduct in the Administrative Complaint. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

17. Respondent, by failing to maintain and submit documentation verifying four (4) of the twenty-four (24) hours of continuing education for the period January 1, 1987 through December 31, 1988, in response to Petitioner's random audit, engaged in conduct in violation of Rule 21M-38.006(1), Florida Administrative Code.

18. Continuing education units, to be accepted, must be either approved by an accredited respiratory program or be presented by live faculty with satisfactory evidence presented to the Advisory Council that the offering is acceptable. Rule 21M-38.004(3), Florida Administrative Code.

    
    

19. Respondent, by certifying that she completed the required continuing education requirements for the period from January 1, 1987 through December 31, 1988 and obtaining her certificate renewal based on such certification, engaged in proscribed conduct in violation of Subsection 468.365(1)(j), Florida Statutes.

    
    

20. Based thereon, Respondent renewed her certificate/registration by fraudulent misrepresentations in violation of Subsection 468.365(1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

(1) Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of five hundred dollars ($500.00) payable to the Board of Medicine within thirty (30) days of entry of its Final Order, (2) Petitioner impose a requirement in such Final Order that Respondent demonstrate compliance with two (2) future bienniums with additional continuing education requirements in each biennium, and (3) Petitioner issue a written reprimand to Respondent. 1/

DONE and ENTERED this 17th day of September, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 17th day of September, 1991.

ENDNOTES

1/ This recommended penalty is in keeping with the disciplinary guidelines set forth in Rule 21M-37.001(1)(b), Florida Administrative Code, as well as mitigating and aggravating factors enumerated therein.

COPIES FURNISHED:

WILLIAM B NICKELL ESQ SENIOR ATTORNEY

DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST

TALLAHASSEE FL 32399-0792

KAREN L DAVIS 13001 JOCELYN WAY

SPRING HILL FL 34609

DOROTHY FAIRCLOTH/EXECUTIVE DIRECTOR FL BOARD OF MEDICINE

NORTHWOOD CENTRE - STE 60 1940 N MONROE ST TALLAHASSEE FL 32399-0750

JACK McRAY ESQ GENERAL COUNSEL

DEPT OF PROFESSIONAL REGULATION 1940 N MONROE ST

TALLAHASSEE FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should 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: 91-001576

Orders for Case No: 91-001576