STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

)

CORLISS A. RUPP, M.D. )

)

Respondent. )

Case No. 05-3242PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on December 14, 2005, in Key West, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kurt L. Barch, Esquire

Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

For Respondent: Michael R. Barnes, Esquire

Michael R. Barnes, P.A. 801 Whitehead Street

Key West, Florida 33040-7421 STATEMENT OF THE ISSUE

Whether Respondent violated Subsections 458.331(1)(b) and 458.331(1)(kk), Florida Statutes (2004),1 and, if so, what discipline should be imposed?

PRELIMINARY STATEMENT

On May 31, 2005, Petitioner, Department of Health, Board of Medicine (Department), filed an Administrative Complaint against Respondent, Corliss A. Rupp (Dr. Rupp), alleging that Dr. Rupp violated Subsection 458.331(1)(b), Florida Statutes, by having her license to practice medicine acted against by the licensing authority, and Subsection 458.331(1)(kk), Florida Statutes, by failing to report to the Department, in writing, within 30 days of action taken against her license to practice medicine, as defined in Subsection 458.331(1)(b), Florida Statutes.

Dr. Rupp requested an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2005), and the case was forwarded to the Division of Administrative Hearings on September 7, 2005, for assignment to an administrative law judge. The case was originally assigned to Administrative Law Judge Larry J. Sartin, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

On October 4, 2005, Petitioner filed a Motion to Amend Administrative Complaint, which was granted by Order dated October 5, 2005. The Amended Administrative Complaint was filed on October 24, 2005.

On December 5, 2005, Petitioner filed Petitioner's Amended Motion for Official Recognition. The motion was granted at the final hearing. Official Recognition was taken of the following:

1. Letter by Karen W. Perrine dated October 26, 2004.

   
   

2. Certification of Duplicate of Official Board Records Section 54.1-112, Code of Virginia, 1950, as Amended.

3. Letter dated July 9, 2004, from William L. Harp, M.D., to Dr. Rupp.

4. Order from the Virginia Board of Medicine dated August 18, 2004, regarding Corliss Ann Rupp, M.D., License No. 0101-228926.

5. Certificate of diligent search from Tracie Natale dated October 15, 2004.

6. Sections 54.1-2915(A)(13), 54.1-2910.1(A)(7),

54.1-2400(10), and 54.1-2401, Code of Virginia.

7. Sections 18VAC85-20-21 and 18VAC85-20-280(A)(1),

Virginia Administrative Code.

1. Affidavit of William L. Harp, M.D., dated October 24, 2005.

2. Notice of Informal Conference mailed to Dr. Rupp on July 9, 2004.

3. Certification of Duplicate of Official Board Records dated October 24, 2005.

4. Letter dated July 9, 2004, to Corliss Ann Rupp from William L. Harp, M.D.

5. Florida Licensure Certification dated November 21, 2005.

At the final hearing, the Department presented no witnesses, and Petitioner's Exhibits 1 through 9 were admitted into evidence. The Respondent called the following witness: Kathleen Jarevela, the office assistant of Dr. Rupp. Dr. Rupp testified on her own behalf and presented 14 exhibits.

Respondent's Exhibits 1 through 5, 7, and 9 through 12 were

admitted into evidence. Respondent's Exhibits 6, 8, 13, and 14 were proffered.

The parties agreed to file their proposed recommended orders within ten days of the filing of the one-volume Transcript, which was filed on January 5, 2006. The Department and Dr. Rupp filed their respective Proposed Recommended Orders on January 17, 2006.

FINDINGS OF FACT

1. The Department is the state agency charged with the responsibility of regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes.

2. Corliss A. Rupp has been practicing medicine since 1986 and has been practicing psychiatry since 1990. She is licensed

   to practice in six states, including Virginia, Georgia, and Florida.

3. The Respondent's current address on record with the Florida Board of Medicine is 137 Maracaibo Lane, Cudjoe Key, Florida.

4. Dr. Rupp was associated with a locum tenes company, whereby she would substitute for other physicians in various parts of the country where there was a need for a psychiatrist. In order to practice in various states, Dr. Rupp had to be licensed in those states. She contracted with the Atlanta-based firm of Daniel and Yaeger, which was responsible for assisting her in the licensing process and in notifying the various licensing authorities of changes in Dr. Rupp's licensing information.

5. In January 2003, Dr. Rupp became licensed in the State of Florida and subsequently moved to Florida in March of 2003. She then personally notified Florida of her change of address in April 2003.

6. In January and April 2003, Dr. Rupp contacted Daniel and Yaeger and requested that the firm notify the State of Virginia of her new address in Florida. Sometime in early 2004, Daniel and Yaeger ceased doing business in Atlanta. As of

   July 9, 2004, the official address of record for Dr. Rupp with the Virginia Board of Medicine was 8010 Roswell Road, Suite 320,

   Atlanta, Georgia 30350 (Atlanta address), which was the address of Daniel and Yaeger.

7. On July 9, 2004, the Virginia Board of Medicine sent a letter to Dr. Rupp to the Atlanta address, notifying her that an informal conference would be convened on August 11, 2004, to inquire into allegations that Dr. Rupp had failed to timely provide the required information for the Practitioner Profile System and had failed to notify the Virginia Board of Medicine of her current address within 30 days of the change of the address. Dr. Rupp did not receive notice of the informal conference prior to August 11, 2004; thus, she did not appear at the informal conference and had no representative at the conference.

8. On August 18, 2004, the Virginia Board of Medicine entered an order against Dr. Rupp. The order stated:

   Dr. Rupp violated Section 54.1- 2915(3)[formerly 54.1-2915.A(3)], as further defined in Section 54.1-2914.A(13), and Section 54.1-2910.1 of the Code, and Part VII of the Board's General Regulations, "Practitioner Profile System" (18 VAC 85-20-

   280 et seq.), in that she failed to provide, in a timely manner, the information required by Section 54.1-2910.1 of the Code and Part VII of the Board's General Regulations, "Practitioner Profile System" (18 VAC 85-20-

   280 et seq.).

   Dr. Rupp violated Section 54.1-2915(3) [formerly 54.1-2915.A(3)], as further defined in Section 54.1-2914.A(13) of the Code, and 18 VAC 85-20-21 of the Board's General Regulations, in that she failed to

   provide the Board with her current address within thirty (30) days of such change.

   * * *

   WHEREFORE, based on the foregoing Findings of Fact and Conclusions of law, it is hereby ORDERED that a MONETARY PENALTY of fifteen hundred dollars ($1500.00) is imposed upon Corliss Ann Rupp, M.D. This monetary penalty shall be paid within forty-five (45) days of entry of this Order.

   
   

9. By letter dated August 19, 2004, the Virginia Board of Medicine sent a copy of the order to Dr. Rupp via the Atlanta address. The Virginia Board of Medicine's order became final on September 22, 2004.

10. On October 11, 2004, Dr. Rupp received a letter at her Florida address in a plain envelope. The letter, dated September 22, 2004, and addressed to Dr. Rupp at the Atlanta address, was from the Virginia Compliance Unit of the Department of Health Professions referring to the Virginia Final Order. This was the first time Dr. Rupp became aware of the Virginia disciplinary action.

11. On October 29, 2004, Dr. Rupp paid the fine imposed by the Virginia disciplinary order. She then received an acknowledgment letter from the Virginia Department of Health Professions indicating that they received her "monetary penalty" on November 29, 2004.

12. The Department received information that the Virginia Board of Medicine had taken disciplinary action against

    Dr. Rupp's Virginia license, and on November 2, 2004, the Department informed Dr. Rupp that it was initiating an investigation of a complaint filed against her as a result of her failure to advise the Department of the Virginia disciplinary action. The letter was signed by Sandra Condo, a government analyst with the Department.

13. On November 8, 2004, Dr. Rupp spoke with Sandra Condo concerning the disciplinary action and sent the Department a packet of information concerning the Virginia disciplinary order.

14. Dr. Rupp claimed at the final hearing that she was led to believe that the action taken against her license by the Virginia Board of Medicine was not disciplinary action that needed to be reported to the Department. Her claim is not credible. The order entered by the Virginia Board of Medicine found that she had violated statutes and rules relating to her license and that a monetary penalty was being imposed. In a letter to the Virginia Board of Medicine dated October 21, 2004, Dr. Rupp stated: "The $1500 fine is a significant financial burden, but I have paid it to resolve this issue. Yet, given the exceptional circumstances, I ask if the board could expunge this as a disciplinary action."

15. Other than the Virginia disciplinary action, Dr. Rupp has not had her license disciplined prior to these proceedings.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005).

17. The Department has alleged that Dr. Rupp violated Subsections 458.331(1)(b) and 458.331(1)(kk), Florida Statutes, which provide:

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       * * *

       
       

       (b) Having a license or authority to practice medicine revoked, suspended, or otherwise acted against, including denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority's acceptance of a physician's relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license.

       
       

       * * *

       
       

       (kk) Failing to report to the board, in writing, within 30 days if action as defined in paragraph (b) has been taken against one's license to practice medicine in another state, territory, or country.

       
       

18. The Department has the burden to establish the allegations in the Amended Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). In Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983), the court developed a working definition of "clear and convincing evidence," which has been adopted by the Florida Supreme Court in In re Davey, 645 So. 2d 398 (Fla. 1994). The court in Slomowitz stated:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    Slomowitz, 429 at 800.

    
    

19. The Department has established by clear and convincing evidence that disciplinary action was taken against Dr. Rupp's Virginia medical license by the Virginia Board of Medicine. Thus, the Department has established a violation of Subsection 458.331(1)(b), Florida Statutes.

20. Dr. Rupp physically did not receive notice of disciplinary action taken against her until almost two months after the order was entered. Therefore, she could not have notified the Department within 30 days of the date the order was entered. She did provide notice to the Department within 30

    days of the date that she received notice from Virginia. However, Subsection 458.331(1)(kk), Florida Statutes, does not provide that notice be given within 30 days of receipt of the disciplinary action, but within 30 days of the action being taken. The Department has established a violation of Subsection 458.331(1)(kk), Florida Statutes, by clear and convincing evidence.

21. The disciplinary guidelines of the Board of Medicine, found at Florida Administrative Code Rule 64B8-8.001, provide a range of penalties for a violation of the provisions of Section 458.331, Florida Statutes. The penalty for a violation of Subsection 458.331(1)(b), Florida Statutes, ranges "[f]rom imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00." The Virginia Board of Medicine found that Dr. Rupp failed to timely provide information for the Practitioner's Profile System and failed to timely report her change of address. Discipline for similar violations in Florida range from administrative fines of $1,000 to $10,000, and a letter of concern to revocation, based on the

    severity of the offense and the potential for patient harm. See Fla. Admin. Code R. 64B8-8.001(1)(g).

22. The penalty range for a violation of Subsection 458.331(1)(kk), Florida Statutes, includes an administrative fine from $2,000 to $5,000 and a reprimand to revocation.

23. Florida Administrative Code Rule 64B8-8.001 provides that the Board of Medicine may deviate from the penalty guidelines based on the following aggravating or mitigating factors:

    1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

    2. Legal status at the time of the offense: no restraints or legal constraints;

    3. The number of counts or separate offenses established;

    4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

    5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

    6. The pecuniary benefit or self-gain inuring to the applicant or licensee;

    7. The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.

    8. Where a licensee has been charged with violating the standard of care pursuant to Section 458.331(1)(t), F.S., but the licensee, who is also the records owner

       pursuant to Section 456.057(1), F.S., fails to keep or produce the records.

    9. Any other relevant mitigating factors.

    
    

24. There are mitigating circumstances which would allow for deviation from the penalty guidelines. There was no harm to patients or the public; other than the disciplinary action by Virginia there has been no other disciplinary taken against

Dr. Rupp; and the Virginia violation was not a willful violation.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding that

Dr. Rupp violated Subsections 458.331(1)(b) and 458.331(1)(kk), Florida Statutes; providing for the issuance of a letter of concern; and imposing an administrative fine of $500.

DONE AND ENTERED this 29th day of March, 2006, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 29th day of March, 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2004 version.

COPIES FURNISHED:

Michael R. Barnes, Esquire Michael R. Barnes, P.A.

801 Whitehead Street

Key West, Florida 33040-7421

Kurt L. Barch, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Larry McPherson, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

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: 05-003242PL

Orders for Case No: 05-003242PL