LEROY V. COPELAND, )
vs. ) Case No. 01-2499
Respondent. )
A hearing was held pursuant to notice on August 17, 2001, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, by video teleconference in Tallahassee, and Daytona Beach, Florida.
Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
Whether Petitioner's medical license should be reinstated.
On or about February 22, 2001, Petitioner filed a Petition to Reinstate License Suspension Stay/Approve New Monitoring Physician with the Department of Health, Board of Medicine (hereinafter "Board"). On May 3, 2001, the Board entered an Order denying Petitioner's Request for Reinstatement and requiring Petitioner to undergo an evaluation with the UFCARES program prior to reapplication for reinstatement.
Petitioner filed a Petition and Request for Administrative Hearing on or about May 17, 2001. The Petition was forwarded to the Division of Administrative Hearings on or about June 27, 2001. A formal hearing was scheduled for August 17, 2001, via video teleconference.
At hearing, Petitioner testified on his own behalf.
Petitioner's Exhibit numbered 1 was admitted into evidence. Respondent presented testimony of two witnesses, Crystal Griffin and Thomas Sweat. Respondent's composite Exhibits numbered 1-3 were admitted into evidence.
A transcript consisting of one volume was filed on September 17, 2001. The parties timely filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.
By Final Order issued in Case No. 92-011898, filed February 16, 1995, Respondent adopted a consent agreement.
The Administrative Complaint in the case charged Petitioner with violations of Subsections 458.331(m)(q) and (t), Florida Statutes.
The Final Order placed Petitioner on probation for a period of 3 years under the indirect supervision of another licensed physician, and imposed reporting requirements and review of medical records. The Final Order also required Petitioner to pay a fine of $5,000, to be paid in installments; complete five hours of continuing medical education in risk management and 10 hours of continuing medical education (hereinafter "CME") in pain management prior to February 16, 1996; complete a medical records course offered by the Florida Medical Association (hereinafter "FMA course") and a course on prescription drugs offered by the University of South Florida (hereinafter "USF course") during the first year of probation. Finally, Petitioner was restricted concerning the prescription of Schedule II controlled substances.
By correspondence dated February 17, 1995, Petitioner was notified that his first appearance before Respondent's Probation Committee (the Committee) was scheduled for March 16, 1995. Petitioner was reminded that he could not practice
medicine until his supervising physician (hereinafter "monitor") was approved.
By separate correspondence dated February 17, 1995, Petitioner was provided with brochures for the USF and FMA courses. Petitioner was advised that the USF course fills up quickly.
On March 10, 1995, Pauline Gray, M.D., notified the Agency for Health Care Administration (AHCA) that she would serve as Petitioner's monitor.
On March 16, 1995, the Committee met. Petitioner advised the Committee that Dr. Gray was ill and unable to attend the meeting, although her appearance was a condition of the Final Order. Petitioner acknowledged that he had been practicing medicine, although his monitor had not been approved; Petitioner further acknowledged receipt of the February 17, 1995 correspondence advising him he could not practice without an approved monitor. Petitioner was advised by the Committee to cease practicing until a monitor was approved.
On March 29, 1995, Dr. Gray advised the Department that while she had been ill, she had not stopped practicing, and continued to be willing to serve as Petitioner's monitor.
On March 31, 1995, the Department advised Petitioner that his first installment payment on his fine was delinquent.
On April 3, 1995, Petitioner advised an AHCA investigator that he did not recall being told to cease practicing, and acknowledged that he had continued to practice after the Committee meeting. Petitioner suggested that his need for a hearing aid could cause confusion.
On April 6, 1995, the Department acknowledged receipt of Petitioner's sample prescription form for Schedule II controlled substances, and was again reminded that he could not practice medicine until his monitor was approved.
On April 10, 1995, the Department by correspondence again advised Petitioner to cease practice until his monitor was approved; at the request of Respondent, Petitioner was asked to submit an explanatory letter from Dr. Gray concerning her illness and her ability to monitor Petitioner.
At the May 18, 1995 meeting of the Committee, Dr. Jeffrey Brooks was approved as Petitioner's monitor.
On May 30, 1995, the Board issued its order clarifying the terms of Petitioner's probation, advising that monitor reports were to be made on a quarterly basis.
On March 14, 1996, Petitioner was granted an extension of time to complete his CME requirements.
On March 20, 1996, Petitioner was provided with sources for the required CME.
On March 22 and April 1, 1996, the Department requested immediate submission of three delinquent reports from Petitioner.
On April 16, 1996, a Final Order in Case No. 95-13102 was entered. The Administrative Complaint charged that Petitioner practiced medicine without a monitor in violation of the previous Final Order.
In this Final Order, Petitioner was placed on six months' suspension, with the suspension stay conditioned on his compliance with the Final Order issued in Case No 92-01898. The Final Order also imposed an additional fine of $1,000.00, due on June 16, 1996, and required Petitioner to successfully complete a laws and rules examination by October 16, 1996.
On April 24, 1996, Respondent issued an Order granting Petitioner's request for modification of the terms of the Final Order in Case No. 92-10898. Petitioner was granted an extension of time until October 23, 1996, to complete the risk management and pain management CMEs required, and an extension until December 1, 1996, to complete the USF course.
By correspondence dated April 29, 1996, the Department confirmed for Petitioner the new due dates for the CME and USF drug course.
On May 10, 1996, the Department requested delinquent reports from Petitioner.
On May 16, 1996, Petitioner submitted probationer reports due November 15, 1995, February 15, 1996 and May 15, 1996.
Petitioner completed the laws and rules examination on September 19, 1996.
As of October 9, 1996, Petitioner had not yet made arrangements to complete the CME and the FMA and USF courses, due October 23, 1996 and December 1, 1996, respectively.
In February 1997, Petitioner was notified his November 15, 1996 probationer report was delinquent, and he explained he forgot the report.
On March 20, 1997, Petitioner appeared before the Committee and was granted an extension of one year to complete his delinquent CME and the FMA and USF courses.
On April 29, 1997, Petitioner was provided brochures for the FMA records and USF drug courses and advised to register immediately.
On September 18, 1997, the committee temporarily approved Dr. Stephen Spore to act as Petitioner's new monitor. He was approved on November 13, 1997.
On December 6, 1997, Petitioner completed the FMA course.
On April 7, 1998, the Department filed a Uniform Complaint with AHCA regarding Petitioner's failure to pay his fine and failure to complete CME.
On May 27, 1999, Petitioner completed six hours of CME in risk management.
On October 20, 2000, Respondent entered an Order lifting the stay of the suspension imposed in Case No. 95-13102.
Petitioner completed the required CME in pain management on October 26, 2000 (1 hour), October 28-29 (9 hours), and November 9-10, 2000 (2 hours).
On December 9, 2000, a risk management survey of Petitioner's practice was conducted.
On December 19, 2000, Respondent entered a Final Order adopting a consent agreement in Case No. 98-11086.1 Petitioner's license was suspended until the CME in Respondent's prior orders was completed and the risk management review was completed. In addition, Respondent imposed a fine of $2,000.00 and costs in the amount of $696.00, due December 19, 2001.
At the time of the March 30 through April 1, 2001 meeting of the Respondent, Petitioner had met all of the requirements for reinstatement specified in the previous Final Orders.
Findings of Fact Based on the Evidence of the Record
Crystal Griffin was the compliance officer for the Board of Medicine during the period 1992-1998. As compliance officer, Ms. Griffin was responsible for monitoring compliance with disciplinary orders issued by the Board. Ms. Griffin was the compliance officer for Petitioner's probation from the entry of the first Final Order until she resigned in 1998.
Upon receiving a disciplinary order, Ms. Griffin sent to the physician an information package which included the due date of every requirement of the Final Order and information explaining how to comply with each requirement. The information package also included brochures for the USF prescribing drug course and the FMA medical records-keeping course. The USF course is given once a year. The FMA course takes four months to complete.
Thomas Sweat is a medical malpractice investigator for the Agency for Health Care Administration. In his position, he acts as a probation officer when a medical professional is placed on probation. Mr. Sweat acted in that capacity with regard to Petitioner's probation.
Acting as probation officer, Mr. Sweat periodically would interview Petitioner, Petitioner's monitor, and the compliance officer, Ms. Griffin.
Mr. Sweat interviewed Petitioner on numerous occasions during which he counseled Petitioner regarding his problems in complying with the terms of his probation.
On May 9, 1996, Mr. Sweat interviewed Petitioner at his office. Mr. Sweat advised Petitioner of delinquent probationer reports. Although he had been on probation for over a year, Petitioner stated he was confused about what to include in his reports. Mr. Sweat advised Petitioner to contact Ms. Griffin in that regard.
During the May 9, 1996 interview Petitioner admitted he had not made arrangements to complete his required CME and the USF and FMA courses. Even though Ms. Griffin had provided Petitioner the necessary information, he stated that he did not know where to arrange for the courses.
On February 4, 1997, Mr. Sweat attempted to interview Petitioner at his office. Upon arrival he found the office closed and vacant with no signs advertising Petitioner's new location. When Petitioner was located, he was admonished that he had violated his terms of probation by relocating his office without notifying the Board. Petitioner had moved his office the previous August. Petitioner stated to Mr. Sweat that it never occurred to him to notify anyone.
It is apparent from the testimony presented at hearing that Petitioner either did not understand or did not recall his obligations under various orders issued by the Board.
Because of the problems Petitioner had with understanding his obligations of the previous orders of the Board, concerns were raised at the March 30 through April 1, 2001, Board meeting about Petitioner's cognitive thinking and ability to practice medicine safely. The Board voted to deny Petitioner's request for reinstatement and to require him to undergo an evaluation by the CARES program at the University of Florida (UFCARES).
The May 3, 2001 Order entered by the Board denying Petitioner's petition for reinstatement and requiring an evaluation by the UFCARES program prior to reinstatement was based on the ground that the Board had concerns regarding Petitioner's ability to safely practice medicine.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Section 458.331(4), Florida Statutes, reads in pertinent part:
The board shall not reinstate the license of a physician, or cause to be issued to a person it deems or has deemed unqualified,
until such time as it is satisfied that he or she has complied with all the terms and conditions set forth in the final order and that such person is capable of safely engaging in the practice of medicine. (Emphasis supplied.)
Respondent argues that the Board is compelled to reinstate Petitioner's license because he has complied with all conditions and requirements of the previous final orders of the Board. However, the language of Section 458.331(4), Florida Statutes, imposes two distinct circumstances under which the Board is prohibited from reinstating a medical license. It is unrefuted that Petitioner has met the first circumstance in that he eventually complied with the terms and conditions of the earlier final orders.
As to the second circumstance contemplated by the statute, the Board raised concerns at its meeting, which it memorialized in its May 3, 2001 Order, about Petitioner's ability to practice medicine safely. While Petitioner's frustration that the Board did not raise this concern sooner is understandable, given that it had ample opportunity to do so prior to the meeting at which Petitioner sought reinstatement, it is within the Board's authority to raise this issue prior to reinstatement pursuant to Section 458.331(4), Florida Statutes. See Major v. Department of Professional Regulation, Board of Medicine, 531 So. 2d 411 (Fla. 3rd DCA 1988) (The Board of Medicine need not wait
for a physician to engage in acts of gross malpractice before it acts to protect the public interest.)
Petitioner met his burden of establishing that he satisfied all of the requirements of the previous orders. The burden of establishing sufficient reason to impose the requirement of an evaluation prior to reinstatement rests with the Board. In this matter, the Board's imposition of the evaluation requirement is not penal in nature. The Board has established sufficient facts to justify imposing the evaluation requirement on Petitioner as a means to satisfy itself that Petitioner is able to safely engage in the practice of medicine. Proof of this has been offered by a preponderance of the evidence. Section 120.57(1)(j), Florida Statutes. Ultimately, whether or not Petitioner can safely engage in the practice of medicine remains to be seen depending on the results of the assessment, a question not ripe for consideration in this case.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Department of Health, Board of Medicine, enter a Final Order denying Petitioner's application for reinstatement until such time that he undergoes the UFCARES program.
DONE AND ENTERED this 8th day of October, 2001, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2001.
1/ The Administrative Complaint charged Petitioner with violations of Subsections 458.331(1)(g) and (x), Florida Statutes.
Paul Kwilecki, Jr., Esquire 629 North Peninsula Drive Daytona Beach, Florida 32118
Lee Ann Gustafson, Esquire Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01
Theodore M. Henderson, Agency Clerk Department of Health
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.
