STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. CASE NO, 2004-27932 ELHAM KHARABI, A.P. Respondent. ee / ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Acupuncture against the Respondent, Elham Kharabi, A.P., and in support thereof alleges: 1. Petitioner is the state departrnent charged with regulating the practice of acupuncture pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 457, Florida Statutes. 2. At all times material to this Complaint, Respondent was registered with the Board of Acupuncture as an acupuncturist, having been issued license number 1890 on November 7, 2003. 4:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457.109(1)(j)(x).doc: Rule 64B1] : 80 ‘d G0%él S00e @ 38d co:TT c00¢ @ Jay 3. | Respondent’s address of record is P.O. Box 451342, Miami, Florida 33245. 4. On or about June 29, 2004, Patient U.C. presented herself to Respondent at his office for the purpose of receiving acupuncture treatment. 5, Prior to acupuncture treatment being rendered, Patient U.C, disclosed to Respondent that Patient U.C. was seeking treatment for depression and back pain. 6. Respondent informed Patient U.C. that Respondent could treat Patient U.C. for both depression and chronic fatigue through acupuncture and massage therapy. ) 7. After the initial consultation with Respondent, Patient U.C. presented herself to Respondent approximately three more times for treatment. 8. On or about July 13, 2004, during Patient U.C.’s last visit to Respondent's office for treatment, Patient U.C. informed Respondent that Patient U.C, was experiencing pain in her left jaw and lower back. 9, Respondent began treatment by massaging Patient U.C.’s jaw followed by a massage of Patient U.C.’s back. 1:\PSU\Allied Health\Acupuncture Board\April Skilting\Administrative Complaints\Kharabi 2004-27932 [457.109(1)(1)(x).doc; Rule 64B1] 60d éO0*él G00e @ 78d co:TT c00¢ @ Jay re a 10. At the beginning of the massage to Patient U.C.’s back, Patient U.C. was fully clothed. However, Respondent later asked Patient U.C. to undress, and Patient U.C. undressed in private down to her underwear. 11. Respondent re-entered the exam room and asked Patient U.C. to lie on her stomach on the exam table and Patient U.C. complied, 12. Respondent began to massage Patient U.C.’s left buttocks. Patient U.C. felt the massage was possibly being hindered by her underwear and asked Respondent if Patient U.C. should remove it. Respondent replied in the affirmative, and Patient U.C. removed her underwear. 13. Respondent then applied massage oil to Patient U.C.’s buttocks and commenced massaging the buttocks very hard and very fast when, | without warning, Respondent suddenly slipped his finger into Patient U.C.'s anus, , 14. — Respondent did not provide Patient U.C. with an explanation of treatment that included Respondent inserting his finger into Patient U.C.’s ‘anus, nor did Respondent provide Patient U.C. with an opportunity to decline the receipt of treatment: that included Respondent inserting his finger into Patient U.C.’s anus. J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457.109(1)(j)(x).dac; Rule 6461] : Ol‘d éO0*él G00e @ 78d SO:TT G00¢ 2 Jal a . a 15. Respondent did not make a notation in Patient U.C.’s medical records justifying a course of treatment that included inserting Respondent's finger into Patient U,C.’s anus. 16. After Respondent completed the massage of Patient U.C.’s buttocks, Respondent inserted acupuncture needles into Patient U.C.’s buttocks. 17. Respondent completed the acupuncture treatment on Patient U.C.’s buttocks and asked Patient U.C. to turn over onto Patient U.C.'s back, 18. Patient U.C. complied, and Respondent commenced massaging Patient U.C.’s left quadricep area with one hand, At the same time, Respondent inserted his finger into Patient U.C.'s vagina with his other hand. 49. Respondent moved the finger he inserted in Patient U.C’s vagina in a back and forth motion a few times, then removed it and continued to massage Patient U.C.’s left leg for another 10-20 minutes. 20. Respondent did not provide Patient U.C, with an explanation of treatment that included Respondent inserting his finger into Patient U.C.’s vagina, nor did Respondent provide Patient U.C. with ‘an opportunity to J\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457,109(1)(j)(x).doc; Rule 6481] LL 'd éO'el Sd0@ @ 78q SO:TT G00¢ 2 Jal decline the receipt of treatment that included Respondent inserting his finger into Patient U.C.’s vagina. 21. Respondent did not make a notation in Patient U.C.’s medical records justifying a course of treatment that included inserting Respondent's finger into Patient U.C.’s vagina, 22. Throughout the massage of Patient U.C.’s leg, Respondent repeatedly stated to Patient U.C., “Your mind is happy. Your health is good. You can deal with anything within this world. You are beautiful.” 23, After the acupuncture and massage treatment was completed, Patient U.C. shook Respondent's hand, 24. Respondent implied to Patient U.C. that future treatments of Patient U.C. would be free. 25. Throughout the treatment of Patient U.C., no female monitor was present, and Respondent did not offer to have one present. COUNT ONE 26. Petitioner realleges and incorporates paragraphs one (1) through twenty-five (25) as if fully set forth herein. 27. Section 456.072(1)(u), Florida Statutes (2004), provides that engaging or attempting to engage in sexual misconduct as defined and 2:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 {457,109(1)(j)(x).doc; Rule 6461} él‘d éO0*él G00e ¢@ 789 90:TT G00e 2 Jal prohibited in Section 456.063(1), Florida Statutes (2004), is grounds for discipline by the Board of Acupuncture. 28. Section 456.063(1), Florida Statutes (2004), states that sexual misconduct in the practice of a health care profession means violation of the professional relationship through which the health care practitioner uses such relationship to efgage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care professional. Sexual misconduct in the practice of a health care profession is prohibited. 29. Respondent committed sexual misconduct in one or more of the following ways: a. By engaging or attempting to engage Patient U.C. in physical sexual activity through insertion of Respondent's finger into Patient U.G’s anus outside the scope of the professional practice of acupuncture; b. By engaging or attempting to engage Patient U.C. in physical sexual activity through insertion of Respondent's finger into Patient U.C.’s vagina outside the scope of the professional practice of acupuncture. J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabl 2004-27932 [457.109(1)()(x).dac; Rule 64B1] Bld BO*él S008 @ 8d 90:TT S00¢ @ Jay 30. Based on the foregoing, Respondent violated Section 456.072(1)(u), Florida Statutes (2004), by committing sexual misconduct when Respondent inserted his finger into Patient U.C.’s anus and/or vagina. cou 0 31. Petitioner realleges and incorporates paragraphs one (1) through twenty-five (25) as if fully set forth herein. , 32. Section 457.109(1)(j), Florida Statutes (2004), sets forth grounds for disciplinary action by the Board of Acupuncture for exercising influence within a patient-acupuncturist relationship for purposes of engaging 4 patient in sexual activity. A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his or her acupuncturist. 33. Respondent exercised influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity, or engaged or attempted to engage a patient in verbal or physical sexual activity, in one or more of the following ways: a. By engaging Patient U.C. in sexual activity through insertion of Respondent's finger into Patient U.C.’s anus while Patient U.C. was under the care.and treatment of Respondent; J:\PSU\Allied Heaith\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457,109(1)(j)(x).dac; Rule 6461] Plod BO*é. S008 @ 789 90:TT G00e 2 Jal b. By engaging Patient U.C, in sexual activity through insertion of Respondent's finger into Patient U.C.’s vagina while Patient U,C. was under the care and treatment of Respondent, 34. Based on the foregoing, Respondent violated Section 457.109(1)(j), Florida Statutes (2004), by exercising influence within a patient-acupuncturist relationship for purposes of engaging a patient in sexual activity when Respondent inserted his finger into Patient U.C.’S anus and/or vagina. | COUNT THREE 35. Petitioner realleges and incorporates paragraphs one (1) through twenty-five (25) as if fully set forth herein. 36. Section 457,109(1)(m), Florida Statutes (2004), sets forth grounds for disciplinary action by the Board of Acupuncture for failing to keep written medical records which are consistent with the practitioner's style of acupuncture justifying the course of treatment of the patient. 37. Respondent failed to keep written medical records consistent with the Respondent's style of acupuncture justifying the course of treatment of the patient, in one or more of the following ways: J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457,109(1)(j)(x).doc; Rule 6481] Gl ‘d BO*él S008 @ 8d 90:TT G00e 2 Jal a. By failing to keep written medical records justifying insertion of Respondent's finger into Patient U.C.’s anus during treatment of Patient U.C.; b, By failing to keep written medical records justifying insertion of Respondent's finger into Patient U.C.’s vagina during treatment of Patient U.C. | 38. Based on the foregoing, Respondent violated Section 457.109(1)(m), Florida Statutes (2004), by failing to keep written medical records consistent with Respondent's style of acupuncture justifying the insertion of Respondent’s finger into Patient U.C.’s anus and/or vagina during the course of Patient U.C.’s treatment, WHEREFORE, Petitioner respectfully requests that the Board of Acupuncture enter an order imposing one or more of the following penalties: denial of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate, J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457.109(1)(j)(x),doc: Rule 6481] , gL ‘d BO*él S008 @ 8d Z20:TT S00e 2 Jal SIGNED this _|t{_ day of __W\acel. _ 2005. FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK KI pools DATE Bel yy -05 John O. Agwunobi, M.D., M.B.A., M.P.H. Secretary, Department of Health April Dawn M. Skilling Assistant General Counsel DOH, Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 © Florida Bar # 0805165 (850) 414-8126 office (850) 414-1989 facsimile Reviewed and approved by: be (initials) 3 [elox(date) PCP; 63-1|-0F PCP Members: G. Gunter -f a wang J:\PSU\Allied Health\Acupuncture Board\April Skilling\Administrative Complaints\Kharabi 2004-27932 [457,109(1)()(x).doc; Rule 64B1} él‘d BO*él S008 @ 8d Z20:TT S00e 2 Jal 10

Docket for Case No: 05-004391PL