STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2130

) RICHARD HESTON BEERS, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on August 2, 1994 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

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

Tallahassee, Florida 32399-0792

For Respondent: Richard Heston Beers, D.O. (pro se) 7505 Aloma Avenue

Winter Park, Florida 32792 STATEMENT OF THE ISSUES

Whether Respondent, a licensed osteopathic physician, failed to properly maintain and dispense prescription drugs, in violation of state and federal law.

Whether Respondent violated a lawful order of the Board of Osteopathic Medicine entered in a disciplinary hearing.

PRELIMINARY STATEMENT

On September 9, 1993, the Petitioner filed a two count Administrative Complaint in Case Number 93-00286 against the Respondent. Respondent filed an Election of Rights on October 20, 1993 denied the allegations and requested a formal hearing. This matter was referred to the Division of Administrative Hearings on April 21, 1994 and set for hearing. Discovery followed and the matter was transferred to the undersigned for hearing.

At the formal hearing, Petitioner offered seven (7) exhibits, six (6) of which were admitted into evidence. One of Petitioner's exhibits, the certified licensure file of Respondent, was withdrawn and the facts contained therein were stipulated to by the parties.

Petitioner presented the testimony of Jeannie Lewis (formerly Jeannie Huff), an Agency investigator; and of Charles C. Lewis, a registered pharmacist, licensed private investigator, and former Senior Pharmacist of the Agency's predecessor, the Department of Professional Regulation.

Respondent offered no exhibits into evidence, but offered the testimony of Diane Legge Pergande, a licensed practical nurse and Respondent's office manager.

The transcript of the hearing was filed on August 29, 1994. Petitioner filed its proposed findings of fact and conclusions of law on September 1, 1994. Respondent has not filed proposals as of the rendering of this order.

My specific rulings on Petitioner's proposed findings of fact are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 459, Florida Statutes.

   
   

2. Respondent is, and has been at all times material hereto, a licensed osteopathic physician, having been issued license number OS 006021 by the State of Florida.

   
   

3. Dispensing practitioner inspections are conducted by Petitioner to evaluate compliance with the legal requirements imposed on dispensing practitioners.

   
   

4. The complete legal requirements imposed upon dispensing practitioners are listed on the "Investigative Services Inspection Form for Dispensing Practitioners", with citations to the proper authority.

   
   

5. Practitioners subject to inspections are provided with copies of the inspection forms.

   
   

6. On July 19, 1991, Jeannie Lewis, a Department investigator, conducted a routine dispensing practitioners inspection of Respondent's office and prepared an inspection form.

   
   

7. During the July 19, 1991 inspection, the following violations were discovered and reported:

   
   

   1. Respondent was not writing prescriptions for dispensed medication;

   2. Respondent was not certifying drugs prior to patient receipt;

   3. Respondent was not on the premises when dispensing of drugs occurred;

   4. Respondent failed to post a generic drug sign;

   5. Respondent failed to initial and date all controlled drug prescriptions dispensed;

   6. Respondent's controlled substance prescriptions failed to include the patient's address;

   7. Respondent's controlled substance prescriptions failed to include Respondent's DEA number;

   8. Respondent failed to place dispensed medication in a child proof container;

   9. Respondent's controlled substance prescriptions were not properly maintained.

      
      

8. Respondent had no prescriptions for controlled substances dispensed.

   
   

9. A deficiencies form was issued and signed by Respondent, following the July 17, 1991 inspection.

   
   

10. A second inspection of Respondent's office was conducted on December 17, 1992, and a second dispensing practitioners inspection form was completed.

    
    

11. During the December 17, 1992 inspection, Investigator Lewis was accompanied by Charles C. Lewis, then Senior Pharmacist for Petitioner.

    
    

12. During the December 17, 1992 inspection by Investigator Lewis and Charles C. Lewis, the following violations were discovered and reported:

    
    

    1. Respondent was not writing prescriptions for dispensed medication;

    2. Respondent was not certifying drugs prior to patient receipt;

    3. Respondent was not on the premises when dispensing of drugs occurred;

    4. Respondent failed to post a generic drug sign;

    5. Respondent failed to initial and date all controlled drug prescriptions dispensed;

    6. Respondent's controlled substance prescriptions failed to include the patient's address;

    7. Respondent's controlled substance prescriptions failed to include Respondent's DEA number;

    8. Respondent's controlled substance prescriptions were not properly maintained;

    9. Respondent's controlled substance purchase records were not properly maintained or readily retrievable;

    10. Respondent's DEA 222 forms were not completed properly and not available.

        
        

13. Respondent's nurse refilled and dispensed medications when Respondent was not on the premises.

    
    

14. On February 9, 1993, a Final Order of the Board of Osteopathic Medicine was entered in the case of DPR v. Richard Heston Beers, D.O., DPR Case Number 00-95528.

    
    

15. This Final Order adopted the provisions of a Consent Agreement signed by Respondent on November 6, 1992, in which Respondent agreed to receive a Letter of Concern, pay a $2,000 fine, attend a Continuing Medical Education course on the ethical prescription of abusable drugs, and to utilize

    sequentially numbered triplicate prescription forms for a year following the date of the Order.

    
    

16. The Consent Agreement, adopted into the Final Order, also provided that copies of the triplicate prescription forms were to be made available to Petitioner's investigators upon request.

    
    

17. Following the second inspection of Respondent's office and the issuance of the Final Order, Respondent sent a letter to Lewis dated March 26, 1993, claiming compliance with the dispensing practitioners requirements and inviting her to re-inspect his office at any time.

    
    

18. At the request of the Board of Osteopathic Medicine, a third inspection of Respondent's office was conducted on July 7, 1993, and a third dispensing practitioners inspection form was completed.

    
    

19. During this third inspection, the following violations were discovered and noted:

    
    

    1. Respondent failed to properly label medication for dispensing;

    2. Respondent was not properly maintaining his controlled substance prescriptions, in that Respondent did not stamp them with a red letter

       "C" and store them separately from non-controlled drug prescriptions;

    3. Respondent's DEA 222 forms were not completed properly (not available).

       
       

20. Respondent failed to utilize sequentially numbered triplicate prescription forms when dispensing medications.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. Pursuant to Section 459.0915(2), Florida Statutes, the Board of Osteopathic Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for the following violations of Section 459.015(1), Florida Statutes:

    
    

    (g) Failing to perform any statutory or legal obligation placed upon a licensed osteopathic physician.

    * * *

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

    to comply with a lawfully issued subpoena of the board or department.

    
    

23. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In this disciplinary licensing proceeding, Petitioner must prove the alleged violations

    of Section 459.015, Florida Statutes, by clear and convincing evidence. Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987); See Addington v. Texas, 441 U.S. 426 (1979).

    
    

24. Petitioner has proven by clear and convincing evidence in this cause, that Respondent violated Section 459.015(1)(g), Florida Statutes by failing to perform statutory and legal obligations placed upon a licensed osteopathic physician. See Section 465.0276(2), 893.04(1), Florida Statutes and Rules 61F10-27.004(1)(g), Florida Administrative Code.

    
    

25. Petitioner has proven by clear and convincing evidence and testimony in this cause, that Respondent violated Section 459.015(1)(bb), Florida Statutes, by violating an order of the board previously entered in a disciplinary hearing.

    
    

26. The disciplinary guidelines of the Board of Osteopathic Medicine, found at Rule 61F9-19.002, Florida Administrative Code, provide a range of penalties for violations of the provisions of Section 459.015(1)(g) and (bb), Florida Statutes. Rule 61F9-19.003, Florida Administrative Code, provides in pertinent part:

    
    

    Based upon the following factors, the board may impose disciplinary action other than the penalties recommended above:

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since the violations;

    5. The number of times the licensee has been previously disciplined by the Board;

    6. The length of time the licensee has practiced;

    7. The actual damage, physical or otherwise, caused by the violation;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the licensee's livelihood;

    10. Any effort of rehabilitation by the licensee;

    11. The actual knowledge of the licensee pertaining to the violation.

    12. Attempts by the licensee to correct or stop violations or refusal by licensee to correct or stop violations;

    13. Related violations against licensees in another state, including findings of guilt or innocence, the penalties imposed and penalties served;

    14. The actual negligence of the licensee pertaining to any violations;

    15. The penalties imposed for related offenses;

    16. The pecuniary gain to the licensee; and

    17. Any other relevant mitigating or aggravating factors under the circumstances. Any penalties imposed by the board may not exceed the maximum penalties set forth in 459.015(2), Florida Statutes.

27. The offenses are severe and the danger to the public is great, in that Respondent has failed to keep an accurate inventory of dangerous, abusable and addictive substances within his office.

    
    

28. Respondent has repeatedly demonstrated that he is unable, or unwilling, to properly maintain legend drugs and controlled substances and the records thereof as required by Federal regulations, the Florida Statutes, and the Florida Administrative Code. This was not a case of an isolated incident, but rather demonstrates a continuing pattern of neglect or refusal to comply with the legal requirements placed upon dispensing practitioners, and a refusal to comply with a lawfully entered order of the Board of Osteopathic Medicine, despite numerous notifications and warnings by Petitioner.

    
    

29. Respondent's testimony that he is complying with his obligations is not credible. Further Respondent's proffers of mitigating circumstances are unpersuasive. The Respondent has made little effort to rehabilitate himself, despite prior discipline and ample opportunity to correct his improper dispensing practices.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections

459.015(1)(g) and (bb), Florida Statutes. It is further RECOMMENDED that:

1. Respondent shall pay an administrative fine in the amount of five thousand dollars ($5,000.00) to the Board of Osteopathic Medicine within one hundred eighty (180) days of the Final Order of the Board.

   
   

2. Respondent shall receive a reprimand from the Board of Osteopathic Medicine.

   
   

3. Respondent shall surrender his DEA license for a minimum of two (2) years, and not reapply unless or until he appears before the Board and demonstrates that he can prescribe, maintain, and inventory controlled substances with skill, safety, and within the legal requirements imposed upon dispensing practitioners.

   
   

4. Respondent's license to practice medicine shall be placed on probation for a period of one (1) year, including indirect supervision, a review of Respondent's medical records by a monitoring physician, and any additional terms deemed reasonable and necessary by the Board.

DONE and ENTERED this 12th day of September, 1994, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 12th day of September, 1994.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner.

Accepted in substance: paragraphs 1 through 20.

Proposed findings of fact submitted by Respondent.

Respondent did not submit proposed findings of fact.

COPIES FURNISHED:

Hugh R. Brown, Esquire Agency for Health Care

Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Richard Heston Beers, D.O. 7505 Aloma Avenue

Winter Park, Florida 32792

Harold D. Lewis, Esquire Agency for Health Care

Administration

325 John Knox Road Tallahassee, Florida 32303

Sam Power, Agency Clerk Agency for Health Care

Administration

325 John Knox Road Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their 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: 94-002130

Orders for Case No: 94-002130