STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4595

) HENRY JOSEPH PETRILLO, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

An immediate emergency formal administrative hearing was held in this case on August 31, 1994. It was held before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings by televideo. (The hearing officer was in a specially-equipped hearing room in Tallahassee, and the other hearing participants were in a specially-equipped hearing room in Tampa, Florida. The two hearing rooms were connected by televideo.)

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Agency for Health Care Administration Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Salvatore Carpino, Esquire

8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Osteopathic Medicine (the Board) should discipline the Respondent's license on charges alleged in an Administrative Complaint, AHCA Case No. 94-09207, filed against him on August 17, 1994.

PRELIMINARY STATEMENT

On August 2, 1994, the Agency for Health Care Administration (the AHCA) issued an Order of Emergency Restriction of the License of the Respondent.

Among other things, it prohibited the Respondent from diagnosing, treating, operating on, or examining female patients.

The emergency order was served on the Respondent, and on August 4, 1994, the Respondent served a Request for Immediate Hearing. However, no Administrative Complaint was issued until August 17, 1994.

The matter was referred to the Division of Administrative Hearings (DOAH) on August 18, 1994. It was assigned to a hearing officer, and on August 22, it was set for final hearing in Tampa, Florida, on August 31, 1994. It was later converted to a televideo hearing.

At final hearing, the AHCA called four witnesses and had Petitioner's Exhibits 1 and 3 through 6 admitted in evidence. Ruling was reserved on the Respondent's objection to Petitioner's Exhibit 2 pending post-hearing substitution of a corrected Certification of the Board's April 5, 1993, Order relicensing the Petitioner with probation conditions.

At final hearing, the Respondent recalled one AHCA witness, called four of his own witnesses, and also testified in his own behalf. The Respondent also had Respondent's Exhibits 1 and 2 admitted in evidence.

At the end of the hearing, the AHCA ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on September 15, 1994.

The corrected Petitioner's Exhibit 2 was filed on September 1, 1994. On September 21, 1994, the Respondent's objection to the corrected exhibit was overruled, and the exhibit was admitted into evidence.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-4595.

FINDINGS OF FACT

1. On March 31, 1986, the Respondent's license to practice osteopathic medicine was revoked. The Respondent reapplied for licensure, and the Board issued an Order on April 5, 1993, approving the application and relicensing the Respondent subject to a period of probation.

   
   

2. One of the conditions of the Respondent's probation was: "Respondent shall not examine or treat any female patients without a female employee who is a health care practitioner licensed by the Department of Professional Regulation present in the room during the examination."

   
   

3. On various occasions since April 5, 1993, while on probation, the Respondent examined female patients while just one of the following female employees was present in the room during the examination: Jacqueline Mehle, a licensed practical nurse who worked for him from approximately July through October, 1993; Teresa Patrick, a medical lab technician licensed by the Department of Business and Professional Regulation (formerly the Department of Professional Regulation, now the ACHA), who worked for the Respondent in 1994; Lynn Gongre, either a licensed practical nurse or a licensed registered nurse who worked for the Respondent starting in June, 1994; Susan Almgreen, a certified nurse assistant; and Lynn Sanford, a licensed X-ray technician.

   During times when Mehle worked for the Respondent, usually she would be present, but sometimes Almgreen or Sanford would take her place when she stepped out of the room. While Gongre worked for him, usually she would be present, but sometimes Patrick would be and sometimes one of the others took their place when Gongre or Patrick stepped out of the room. In 1994, before Gongre started working for him, Patrick usually would be present, but sometimes one of the

   others took her place when she stepped out of the room. The Respondent did not see patients during the time period after Mehle left but before Patrick started working for him.

   
   

4. On other occasions, Almgreen or Carmen McGrew were present in the examination room with female patients to take information concerning insurance and payment for services, but those interviews generally occurred before the Respondent entered the examination room with Mehle, Patrick or Gongre.

   
   

5. It was not proven whether either Patrick, Almgreen or Sanford is a "health care practitioner licensed by the Department of Professional Regulation" under the terms of the Respondent's probation conditions.

   
   

6. It was not proven that the Respondent believed that either Patrick, Almgreen or Sanford was not a "health care practitioner licensed by the Department of Professional Regulation" under the terms of the Respondent's probation conditions.

   
   

7. There is no evidence that any female patient has complained about anything the Respondent has said or done during an examination since his relicensure.

   
   

8. After his relicensure, the Respondent reapplied for Drug Enforcement Agency (DEA) certification to prescribe and dispense controlled substances.

   
   

9. When the Respondent filled out the DEA application, he correctly checked the box on the form to indicate that he was applying as a "Practitioner," not as a "Teaching Institution" or one of the other categories. But he misread the form and mistakenly checked the "no" box in answer to the following question, which was single-spaced in very small print on the form:

   
   

   Has the applicant ever been convicted of a crime in connection with controlled substances under State or Federal law, or ever surrendered

   or had a Federal controlled substance registration revoked, suspended, restricted or denied, or ever had a State professional license or controlled substances registration revoked, suspended, denied, restricted or placed on probation?

   
   

10. The evidence on the DEA application process is confusing. This finding reflects what is believed to be what transpired. It is believed that the Respondent's initial application was returned for failure to include an osteopathic medicine license number. The Respondent telephoned the DEA to resolve the problem and fully discussed his prior revocation and relicensure under probation. (In addition, copies of the documentation of the prior revocation were contained in DEA files under the Respondent's name both in the DEA's Florida office and in Washington, D.C.) After his discussions with the DEA, the Respondent contacted the Board to obtain a license number. After being told that it takes time, the Respondent resubmitted the DEA application, together with copies of both the Final Order revoking his previous license and the April 5, 1993, Order relicensing him under probation conditions.

    
    

11. When the Respondent received his DEA certificate, it mistakenly indicated that the Respondent was a "Teaching Institution," instead of a "Practitioner." The Respondent again telephoned the DEA to have the error corrected.

12. While the Respondent was waiting for his certificate to be corrected, a DEA investigator noticed the mistaken reference to the Respondent's being a "Teaching Institution" and investigated. While investigating, she also noticed the false statement in the Respondent's application. She notified the AHCA, which dispatched an investigator to accompany the DEA investigator to the Respondent's office. The charges in the Order of Emergency Restriction of License and the Administrative Complaint followed.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 459.015, Fla. Stat. (1993), provides in pertinent part:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (m) Making deceptive, untrue, or fraudulent representations in or related to the practice of osteopathic medicine or employing a trick

       or scheme in the practice of osteopathic medicine.

       * * *

       (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.

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certify with restrictions, to the department an application for certification, licensure, renewal, or reactivation.

          * * *

    3. In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.

       
       

14. The AHCA did not prove that the Respondent's mistake in filling out the DEA application constituted "making deceptive, untrue, or fraudulent representations" or "employing a trick or scheme." It was not proven that the Respondent knowingly made a false statement on the application with intent to deceive or defraud.

    
    

15. The Board's April 5, 1993, Order was not clear in defining the kind of female employees who had to be present in the room when the Respondent examined female patients. Section 455.01(4), Fla. Stat. (1993), defines "health care licensee," but does not define "health care practitioner licensed by the Department of Professional Regulation." The evidence suggested that not only Mehle and Gongre but also Patrick, Almgreen and Sanford may have been licensed

    by the Department of Professional Regulation or one of its successor agencies. It was not proven that the Board's April 5, 1993, Order was violated.

    
    

16. Even if violations of the Board's April 5, 1993, Order, were proven, discipline under Section 459.015(1)(bb) would not authorized. As a penal statute, Section 459.015(1)(bb) must be strictly construed. City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993). Construing the statutory language strictly, the Board's April 5, 1993, Order is not a "provision of this chapter [459], a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or . . . a lawfully issued subpoena of the board or department."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Osteopathic Medicine enter a final order dismissing the Administrative Complaint.

RECOMMENDED this 3rd day of October, 1994, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 3rd day of October, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4595

To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-3. Accepted but subordinate and unnecessary.

4.-7. Accepted and incorporated to the extent not subordinate or unnecessary.

8. Rejected as not proven.

9.-10. Accepted, but whether either was a "health care licensee" is not the issue.

1. Rejected as not proven. Also, whether she was a "health care licensee" is not the issue.

2. Accepted, but whether she was a "health care licensee" is not the issue.

3. Rejected as not proven. Also, whether he had a "health care licensee in the room" is not the issue.

4. Rejected as not proven.

5. Rejected as largely not proven. Accepted and incorporated that his license was revoked and that his application for relicensure was granted with probation conditions.

16.-17. Rejected as not proven.

1. Accepted and incorporated.

2. Rejected as not proven.

Respondent's Proposed Findings of Fact.

1. Rejected as unclear. His license was revoked; he applied for relicensure; he was relicensed with probation conditions.

2. Rejected as contrary to the greater weight of the evidence. It is believed that he applied, that the application was returned for failure to include a license number, and that then he spoke to DEA about the probation conditions.

3. Accepted and incorporated.

4. Second sentence, rejected as contrary to the greater weight of the evidence. See 2., above. Third sentence, also rejected as contrary to the greater weight of the evidence. (It is believed that the conversation related here took place after the surrender of the Respondent's DEA certificate on June 2, 1994.) Otherwise, accepted and incorporated.

5. Accepted and incorporated.

6. Generally accepted but largely argument, and subordinate and unnecessary.

7. Accepted and incorporated.

8. Rejected as contrary to the greater weight of the evidence that the Respondent always "keeps the Torah." Otherwise, accepted but subordinate and unnecessary.

9. Rejected as contrary to the greater weight of the evidence. Sometimes Almgreen or Sanford replaced them for periods of time.

10.-14. Accepted and incorporated.

15.-16. Accepted; subordinate to facts found.

17. Accepted and incorporated.

COPIES FURNISHED:

Francesca Plendl, Esquire Agency for Health Care

Administration

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Salvatore Carpino, Esquire

8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614

Henry Dover Executive Director Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire 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 to the Board of Osteopathic Medicine written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Board of Osteopathic Medicine concerning its rules on the deadline for filing exceptions to this Recommended Order.

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

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF OSTEOPATHIC MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner, AHCA CASE NO. 9409207 DOAH CASE NO. 94-4595

vs. LICENSE NO. 0S0006582

HENRY JOSEPH PETRILLO, D.O.,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Osteopathic Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on March 10, 1995, in Miami, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached) in the case of Agency for Health Care Administration v. Henry Joseph Petrillo, D.O. At the hearing before the Board, Petitioner was represented by Francesca Plendl, Senior Attorney. Respondent appeared before the Board with Salvatore A. Carpino, Esquire. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following rulings, findings and conclusions:

RULINGS ON EXCEPTIONS

Neither party filed exceptions to the Hearing Officer's Recommended Order. However, the Board took exception sua sponte to certain recommended findings and conclusions.

The Board rejected the Finding of Fact set forth in paragraph 5 of the Hearing Officer's Recommended Order. The Board specifically found that the the recommendation contained therein is not supported by competent substantial evidence in the record.

The Board rejected the Conclusion of Law set forth in paragraph 14 of the Hearing Officer's Recommended Order. Furthermore, the Board voted to replace paragraph 14 with the following:

Although AHCA did not prove that Respondent's mistake in filling out the DEA application constituted making a deceptive or fraudulent representation or the employment of a trick or scheme, it did establish that Respondent's answer was untrue and therefore a violation of Section 458.331(1)(m), Florida Statutes.

The Board rejected the Conclusion of Law set forth in the second sentence of paragraph 15 of the Hearing Officer's Recommended Order. The Board instead concluded that Section 455.01(4), Florida Statutes, does define the term "health care practitioner licensed by the Department of Professional Regulation." Therefore, the second sentence of paragraph 15 shall be deleted.

The Board also rejected the Conclusion of Law set forth in paragraph 16 of the Hearing Officer's Recommended Order. The Board specifically concluded that the violation of a lawfully issued final order of the Board is a violation of Section 459.015(1)(bb), Florida Statutes, even if the final order is based upon a petition for reinstatement of licensure. Such orders are the manifestation of the Board's authority to act pursuant to statute. Therefore, a violation of the Order is a violation of "a provision of this chapter." Therefore, paragraph 16 shall be deleted.

Although the Board voted to adopt the recommended disposition of this case, it determined that it is necessary to explain the different rationale for reaching the same disposition recommended by the Hearing Officer. The Board finds that although Respondent did violate Section 459.015(1)(m), Florida Statutes, the technical violation of Section 459.015(1)(m), Florida Statutes, does not warrant disciplinary action in this case.

FINDINGS OF FACT

1. The Hearing Officer's recommended Findings of Fact as set forth in the Recommended Order are approved and adopted, except as set forth above, and are incorporated herein by reference.

   
   

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

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.5 and Chapter 459, Florida Statutes.

   
   

2. The Hearing Officer's recommended Conclusions of Law as set forth in the Recommended Order are approved and adopted, except as set forth above, and are incorporated herein by reference.

   
   

3. The Findings of Fact set forth above do establish that Respondent has violated Section 459.015(1)(m), Florida Statutes, as charged in the Administrative Complaint.

DISPOSITION

In light of the foregoing Findings of Fact and Conclusions of Law the Board finds that the disposition recommended by the Hearing Officer is appropriate.

WHEREFORE, it is found, ordered and adjudged that the Respondent shall have each of the charges in the Administrative Complaint DISMISSED.

This Final Order becomes effective upon being filed 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 3rd day of April, 1995.

BOARD OF OSTEOPATHIC MEDICINE

TODD A. PATTERSON, D.O. 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 Henry Joseph Petrillo,

D.O. c/o Salvatore A. Carpino, Esquire, 8001 North Dale Mabry, Suite 301-A, Tampa, Florida 33614 and to J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Francesca Plendl, Senior Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0992 on this 6th day of April, 1995.

Docket for Case No: 94-004595

Orders for Case No: 94-004595