STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-1745

)

DAVID JAMES PESEK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on November 2, 1998, at West Palm Beach, Florida, before Errol H. Powell, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Carol A. Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229 For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

On December 19, 1994, the Agency for Health Care Administration (AHCA) filed a three-count Administrative

Complaint before the Board of Medicine against David James Pesek (Respondent). The Administrative Complaint charged Respondent as follows: Count I—with violating Subsection 468.518(1)(h), Florida Statutes, by being guilty of committing an act of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of dietetics and nutrition; Count II—with violating Subsection 468.518(1)(j), Florida Statutes, by being guilty of treating or undertaking to treat human ailments by means other than dietetics and nutrition practice, as defined in Subsections

468.501 - 468.518, Florida Statutes; and Count III—with violating Subsection 468.518(1)(k), Florida Statutes, by being guilty of failing to maintain acceptable standards of practice as set forth by the Board of Medicine and the Nutrition Council1 in rules adopted pursuant to Subsections 468.501 - 486.518 [sic], Florida Statutes. Respondent disputed the allegations of fact and requested a formal hearing. On April 13, 1998, this matter was referred to the Division of Administrative Hearings.

Subsequent to the filing of the Administrative Complaint, the Florida Legislature created the Department of Health and placed the Board of Medicine within the Department of Health. Pursuant to statute, AHCA contractually prosecutes disciplinary actions for the Department of Health, Board of Medicine (Petitioner).

At hearing, the Petitioner presented the testimony of three witnesses and entered five exhibits into evidence. Respondent

did not appear at the hearing, and no witnesses were presented and no exhibits were entered into evidence on behalf of Respondent.

A transcript of the hearing was ordered. The time for filing post-hearing submissions was set for ten days following the filing of the transcript. Only the Petitioner filed a post- hearing submission which has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, David James Pesek (Respondent) was licensed in the State of Florida as a nutrition counselor, having been issued license number NC 0000199 on February 21, 1990. Respondent’s last known address is 375 Paradise Lane, Waynesville, North Carolina 28786.

2. At all times material hereto, Respondent was the owner of the Center for Effective Living (Center) in Deerfield Beach, Florida.

3. On June 11, 1992, Patient A. S. presented to the Center for treatment of an eating disorder. Patient A. S. was overeating and wanted to lose weight. Patient A. S. was examined by Dr. Schocoff, M.D. that same day.

4. Dr. Schocoff performed a brief physical examination of Patient A. S. Dr. Schocoff’s medical impression was that Patient

   A. S. suffered from a food addiction, food allergy, and aerophagia. At no time did Dr. Schocoff diagnose Patient A. S. as suffering from fatigue, hypercholesterolemia, or abnormal liver function.

5. At no other time did Dr. Schocoff evaluate Patient A. S.

   At no other time was Dr. Schocoff involved in any way in the treatment of Patient A. S.

6. Dr. Schocoff was employed by Respondent and the Center. Dr. Schocoff’s duties were to obtain patient history and perform physical examinations only. At no time did Dr. Schocoff give any opinion as to a patient’s health or perform any treatment of a patient or supervise patient treatment.

7. On July 29, 1992, lab work was performed on Patient

   
   

   A. S., as ordered by Dr. Schocoff. The lab work consisted of blood and urine chemistry tests. The results of the tests did not indicate a need for nutritional supplements.

8. Patient A. S. was referred to Respondent for a supervised nutritional and dietary program. On September 1, 1992, Patient A. S. presented to Respondent for the supervised program. After reviewing the blood test results, Respondent informed Patient A. S. that his liver was breaking down and that something had to be done for his liver problem immediately. Respondent had diagnosed Patient A. S. with suffering from a liver disorder.

9. Patient A. S.’ medical records indicate that, among other things, the levels of three substances were tested by the blood test: two liver enzymes (GGT and SGPT) and cholesterol. The blood test results indicated that the levels of all three substances were elevated; however, increased levels of GGT, SGPT, and cholesterol are not conclusive indices of liver disorder.

10. A nutrition counselor is not qualified to make a diagnosis of a liver disorder. It is below the acceptable standards of practice2 as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose a liver disorder. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately diagnosing Patient A. S. with a liver disorder.

11. Respondent did not refer Patient A. S. to a physician for his suspected liver disorder. Instead, Respondent prescribed treatment for the disorder in the form of nutrients and dietary supplements.

12. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to refer a patient to a physician for diagnosis and treatment of a suspected liver disorder.

    Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by inappropriately attempting to treat Patient A. S. for a liver disorder.

13. Eventually, Respondent suggested iridology analysis to Patient A. S. On October 28, 1992, Respondent performed iridology analysis on Patient A. S.

14. Iridology is not an accepted diagnostic procedure by the Board of Medicine and Nutrition Council. Respondent treated

    and undertook treatment of a human ailment by means other than dietetics and nutrition practice.

15. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a

    nutrition counselor to use forms of treatment and diagnosis which are not accepted.

16. On October 28, 1992, Respondent also ordered testing of Patient A. S.’ nutrient mineral levels.

17. The testing of Patient A. S.’ nutrient mineral levels was performed by Analytical Research Labs, Inc., on November 5, 1992. The test results were inconclusive, since they failed to reflect specific units based on amount/volume in which each mineral was measured, and no determination of nutritional recommendations could be effectively made, or, stated differently, the results did not support a need for nutritional supplements. Notwithstanding, Respondent ordered and sold to Patient A. S. multiple nutritional supplements.

18. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to diagnose and undertake to treat nutrient mineral deficiencies from inconclusive test results. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by diagnosing Patient A. S. with nutrient mineral deficiency from inconclusive test results.

19. On November 13, 1992, as ordered by Respondent, food sensitivity testing was performed on Patient A. S. at Immuno Laboratories, Inc. The results of the test included foods that Patient A. S. should and should not eat, and Immuno Laboratories

    provided a diet for Patient A. S.

20. Respondent’s assessment of the lab work performed by Analytical Research Labs and Immuno Laboratories was insufficient to determine the appropriateness of the diet provided for Patient

    A. S. Furthermore, Respondent failed to develop a personalized, specific diet plan for Patient A. S., which included a target weight and caloric intake requirements.

21. It is below the acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor to fail to develop a personalized diet plan which includes a target weight and caloric intake requirements. Respondent failed to maintain acceptable standards of practice as set forth by the Board of Medicine and Nutrition Council for a nutrition counselor by allowing someone other than himself to develop a diet for Patient A. S. and by failing to develop a personalized diet plan for Patient A. S., which included a target weight and caloric intake requirements.

22. During Respondent’s treatment of Patient A. S., Respondent advised him that his addictive behavior was caused by nutrient imbalances. This advice from Respondent was false.

23. During the first two months under Respondent’s care and treatment for an overeating disorder and to lose weight, Patient

    A. S. gained 17 pounds. During the three-month period from June to September 1992, Patient A. S. gained a total of 25 pounds.

24. For the period from September 1, 1992 through February 22, 1993, Respondent submitted insurance claims for the

    services and treatment that he provided to Patient A. S., utilizing the medical diagnoses determined by Respondent. Moreover, Respondent filed the claims under the name of the Center's physician, Dr. Schocoff, with a signature purporting to be that of Dr. Schocoff. However, Dr. Schocoff was not aware that his name appeared on the claim forms; and neither did he sign the claim forms nor authorize Respondent to use or sign his name on the claim forms.

25. Claims paid by the insurance company were paid to the Center, which was wholly owned by Respondent.

26. An inference is made and a finding of fact is made that Respondent knowingly used Dr. Schocoff's name and signature on the claim forms without Dr. Schocoff's knowledge and authorization. Moreover, due to this finding of fact, it is further found that Respondent knew that he was fraudulently submitting claims to an insurance company for the payment of services provided by himself, not by a physician.

27. By submitting claims for services provided to Patient

    
    

    A. S. under the name of the Center's physician, Dr. Schocoff, Respondent committed an act of fraud or deceit in the practice of dietetics and nutrition.3

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection

    120.57(1), Florida Statutes.

    
    

29. License revocation proceedings are penal in nature. The burden of proof is on the Petitioner to establish by clear and convincing evidence the truthfulness of the allegations of the Administrative Complaint. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

30. Sections 468.501-468.518, Florida Statutes (1991), constitute the Dietetics and Nutrition Practice Act.

31. Section 468.503, Florida Statutes (1991), provides in pertinent part:

    1. "Board" means the Board of Medicine.

       
       

       * * *

       
       

       1. "Dietetics" means the integration and application of the principles derived from the sciences of nutrition, biochemistry, food, physiology, management behavioral and social sciences to achieve and maintain a person's health throughout the life cycle. It is an integral part of preventive, diagnostic, curative, and restorative health care of individuals, groups, or both.

          
          

       2. "Dietetics and nutrition practice" shall include assessing nutrition needs and status using appropriate data; recommending appropriate dietary regimens, nutrition support, and nutrient intake; improving health status through nutrition research, counseling, and education; and developing, implementing, and managing nutrition care systems, which includes, but is not limited to, evaluating, modifying, and maintaining appropriate standards of high quality in food and nutrition care services.

       * * *

       
       

       1. "Nutrition assessment" means the evaluation of the nutrition needs of individuals or groups, using appropriate data to determine nutrient needs or status and make appropriate nutrition recommendations.

       2. "Nutrition counseling" means advising and assisting individuals or groups on appropriate nutrition intake by integrating information from the nutrition assessment.

       
       

32. Section 468.518, Florida Statutes (1991), provides in pertinent part:

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

       
       

       * * *

       
       

       (h) Committing an act of fraud or deceit, or of negligence, incompetency, or misconduct in the practice of dietetics and nutrition;

       
       

       * * *

       
       

       1. Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice, as defined in ss.

          468.501-468.518;

          
          

       2. Failing to maintain acceptable standards of practice as set forth by the board and the council in rules adopted pursuant to ss. 468.501-468.518;

       
       

       * * *

       
       

    2. When the board finds any licensee 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. Revocation or suspension of a license;

          
          

       2. Imposition of an administrative fine not to exceed $1,000 for each violation;

          
          

       3. Issuance of a reprimand or letter of guidance;

          
          

       4. Placement of the licensee on probation for a period of time and subject to such

          conditions as the board may specify, including requiring the licensee to attend continuing education courses or to work under

          the supervision of a licensed dietitian/nutritionist; or

          
          

       5. Restriction of the authorized scope of practice of the licensee.

       
       

33. Petitioner has demonstrated by clear and convincing evidence that Respondent violated Subsection 468.518(1)(h), Florida Statutes (1991), by submitting insurance claims under the name of a physician for services provided to Patient A. S. by himself, not by the physician.

34. Petitioner has demonstrated by clear and convincing evidence that Respondent violated Subsection 468.518(1)(j), Florida Statutes (1991), by performing an iridology analysis on Patient A. S.

35. Petitioner has demonstrated by clear and convincing evidence that Respondent violated Subsection 468.518(1)(k), Florida Statutes (1991), by inappropriately diagnosing Patient

    A. S. with a liver disorder and attempting to treat the alleged liver disorder; by allowing someone else to develop a diet for Patient A. S. and failing to develop a personalized diet plan for Patient A. S.; and by diagnosing Patient A. S. with nutrient mineral deficiency from inconclusive test results.

36. Petitioner failed to demonstrate by clear and convincing evidence that Respondent should have referred but failed to refer Patient A. S. for a psychological evaluation in violation of Subsection 468.518(1)(k), Florida Statutes (1991).

37. As disciplinary action, Petitioner suggests that

    Respondent's license as a nutrition counselor be revoked.

    Petitioner's suggested action is within the disciplinary guidelines for the violations and is not unreasonable.

38. Petitioner suggests further that Respondent be required to pay "agency costs." Fundamental fairness requires that, at the time of disciplinary action by the Board of Medicine, this requested action be brought before the Board of Medicine for it to determine if it wishes to entertain such a request and for the presentation of evidence regarding "agency costs."

RECOMMENDATION

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

RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license as a nutrition counselor.

DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999.

ENDNOTES

1/ Dietetics and Nutrition Practice Council.

2/ Petitioner provided expert testimony as to the acceptable standards of practice.

3/ Petitioner suggests that because Respondent was previously disciplined that he was aware that he could not submit insurance claims for services that he, not a physician, had performed.

However, the undersigned is not persuaded. The disciplinary action was imposed by a board other than the Board of Medicine and for another profession for which Respondent was licensed. Furthermore, the final order adopted a stipulation that stated, among other things, that Respondent neither admitted nor denied the allegations of fact within the administrative complaint even though that, if true, the allegations constituted violations of the particular practice act. One of the allegations in the administrative complaint for which the final order was issued involved the submitting of claims to insurance companies, under the name of a physician, for services performed by the Respondent, not by a physician.

COPIES FURNISHED:

Carol A. Lanfri, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

David J. Pesek, pro se

375 Paradise Lane

Waynesville, North Carolina 28786

Tanya Williams, Executive Director Board of Medicine, Department

of Health

1940 North Monroe Street Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-001745

Orders for Case No: 98-001745