The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed in the State of Florida, having been issued license number ME 0055126. On December 4, 1989, D.W. presented herself as a patient at Unity Health Center, where Respondent was employed as a physician. She complained of headaches, insomnia, and jerking of her muscles. She advised that she had had her roof repaired and other repairs done to her home and feared she was reacting to some of the chemicals involved with those repairs. She further advised that the health department had evaluated her home for the presence of formaldehyde, carbon monoxide, and other toxins but none had been detected. Respondent took a minimal, at best, history but performed no physical examination. Yet, Respondent diagnosed the patient as suffering from chemical toxicity. He recommended a holistic diet and prescribed a number of homeopathic or holistic substances. He recommended that the patient return in three weeks to be re-checked. The patient returned to Unity Health Center on December 28, 1989. Respondent recommended an Interro test to check her chemical toxicity levels. The patient submitted to that test, and Respondent used the results of the Interro testing to confirm his diagnosis of chemical toxicity related to chemicals in the patient's environment from the repair of her roof. The Interro machine indicated that the patient had elevated levels of formaldehyde; toxic levels of arsenic, lead, and mercury; and a sensitivity to mold and yeast. Respondent prescribed additional homeopathic or holistic substances including "de-tox drops", prescribed a tranquillizer, and recommended that the patient return in three weeks to be re-checked. Respondent used the Interro machine as a diagnostic instrument. His medical records contain no notation that the patient gave informed consent for the use of the Interro machine for that purpose, and no written informed consent is contained in Respondent's records. The Interro machine is a device with certain dials and switches on it and an electrode 3-4 inches long and approximately 1/2 inch in diameter, cylinder-shaped, which is held in the patient's hand. The other cord attached to the machine has two electrodes that go around the patient's index and ring fingers of the left hand, much like a polygraph machine. The third component is a wand which is held by the tester. When the patient is hooked up to the Interro machine with the two electrodes on the left hand and holding the other electrode in the right hand, the wand is pressed into certain "acu-pressure points" by the tester. A needle on the machine indicates the patient's sensitivity to whatever substance the tester has the machine "tuned to". The Interro machine is a device purported by its manufacturer to be a computerized question and answer device which measures changes in the patient's skin conductivity in response to computer-generated questions. The Interro's training manual specifically represents that it is not a medical device; rather, it is a communication device. The Interro machine is not approved by the federal Food and Drug Administration as a medical diagnostic device. Rather than returning to Respondent or Unity Health Center, the patient went to Dr. Tillinghast Lybass, a specialist in allergies and immunology, for a second opinion on January 9, 1990. She complained of allergies and chemical toxicity and advised Lybass of Respondent's diagnosis. She advised Lybass of the inspection of her home by the health department and of the repairs done on her roof. She discussed her previous exterminating service. D.W.'s complaints to Lybass were headaches, itching, body jerking, blurred vision, redness of her eyes, and insomnia. Lybass took a complete history of her symptoms, the course of her illness, her past medical history, her family medical history, and her environmental history. He did an allergy work-up on D. W. and tested her for sensitivity to mold and mildew, to a natural pesticide found in a plant, to formaldehyde, and to some of the materials that were listed in the safety information sheets the patient obtained from the contractor that had done the repair work in her home. He obtained a copy of Respondent's medical records on the patient. Dr. Lybass was unable to document any significant degree of allergy antibodies in the patient's blood. Although he performed specific skin tests for the major molds, the patient did not demonstrate any sensitivity. Further, the patient's blood chemistries were normal except for an elevated cholesterol level. Lybass did not do any specific tests for heavy metals since there was no reason to indicate or expect that the patient had any kind of heavy metal poisoning from the patient's history. He had the patient expose a culture plate at her home and learned there was no significant amount of mold there. Dr. Lybass diagnosed the patient's condition, based on her history and his physical examination and the tests he performed, as stress, anxiety, and fear or phobia of her environment. Respondent was engaged in the practice of medicine when he diagnosed and treated patient D. W. His diagnosis was a medical diagnosis. He undertook to treat her complaints, recommending certain holistic or homeopathic remedies and even prescribing a tranquillizer which is a prescription drug. Respondent failed to keep an adequate medical record of his examination and treatment of the patient. He took only a minimal history and documented no physical examination, not even vital signs. His medical record includes no plan for any recognized medical tests to support his diagnosis, and his records contain no justification for the use of the Interro machine on that patient. Although the patient presented with complaints that could have serious medical implications, Respondent did not perform or document any recognized medical tests to rule out any potential causes for the patient's symptoms. The Interro device is not an accepted medical device in the medical community. The Interro device cannot be used to make a diagnosis of chemical toxicity since it does not test the patient's bloodstream. The Interro report contained in Respondent's medical record for patient D. W. does not purport to measure the chemicals in a patient's body; rather, it simply lists body systems in a graph. Since the Interro device is not a diagnostic medical device, the use of that device to make a medical diagnosis, without first obtaining the full and informed consent of the patient, constitutes experimentation on a human subject. Respondent made deceptive or untrue representations to patient D. W. Based on the results of the Interro testing, Respondent diagnosed the patient's symptoms as chemical sensitivity and mold sensitivity and recommended treatments and remedies. Respondent's representation of the Interro machine as a medical diagnostic device was untrue as was Respondent's representation that the patient was suffering from chemical and mold sensitivity. Those misrepresentations constituted a trick or scheme in the practice of medicine. D. W. was tricked into believing that Respondent had made an accurate diagnosis with the Interro device when the device in fact had no medical value. Respondent practiced medicine below the acceptable standard of care of a reasonably prudent physician under similar conditions and circumstances in his diagnosis and treatment of patient D. W. On the basis of just a few questions and without a physical examination or the use of any medically recognized tests, Respondent made the diagnosis of chemical toxicity and prescribed various holistic medicine drops. He then used the Interro machine as a medical testing instrument and relied on the results of that testing in prescribing various holistic or homeopathic substances and diets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in Counts One, Two, Three, Five and Six of the Administrative Complaint filed in this cause; Finding Respondent not guilty of the allegations contained in Count Four; Dismissing Counts Seven and Eight of the Administrative Complaint filed in this cause; and Suspending Respondent's license to practice medicine in the State of Florida until such time as Respondent can demonstrate to the Board of Medicine that Respondent can practice with skill and safety. DONE and ENTERED this 5th day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 5th day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-3214 Petitioner's proposed findings of fact numbered 2, 4-24, 26 and 27 have been adopted either verbatim or in substance. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues involved herein. Petitioner's proposed finding of fact numbered 25 has been rejected as not being supported by competent evidence. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph S. Garwood, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Plagenhoef, M.D. Post Office Box 12131 Dallas, Texas 75225 Richard Plagenhoef, M.D. Post Office Box 2129 Cherokee, North Carolina 28789
Findings Of Fact Richard Templeton is a registered nurse holding license #RN 137921-2 issued by the State Board through the Department of Professional Regulation. At all times pertinent to this case, Respondent was employed at Morton Plant Hospital, Clearwater, Florida. On the night of 19/20 July, 1983 Respondent was charge nurse on ward Bernard 5 at Morton Plant Hospital, and was responsible for the administering of medications to include controlled substances, to David Johnson. There were approximately 45 patients on the ward, and Respondent was responsible for at least one third of them. The narcotic sign out sheets reflect that Respondent signed out for 100 mg Demerol at 1:15 A.M. & 4:15 A.M. for David Johnson on said night. Johnson's nursing notes in his medical chart for 7:00 A.M. reflect that Johnson was given 2 pain medicines at 1:15 & 4:15. Johnson's charts reflect he got sleeping medicines at 11:50 P.M. and was sleeping at 2:00 A.M. & 6:00 A.M. 2/ Johnson testified as to the medicines he received while a patient at Morton Plant Hospital in July 1983. Johnson stated he did not receive any injections prior to his pre op medicines which were administered at approximately 1-2:00 P.M. on 20 July, 1983. Johnson's testimony is very concrete and reflects a good recollection of events. His testimony is borne out by the records and is credible. On April 2, 1984 the Respondent entered a plea of nolo contendere to criminal charges that he had violated Chapter 893.13(3)(a)1, Florida Statutes. See Petitioner's Exhibit 2. The court found the Respondent guilty of said charges. Registered nurses have a legal obligation to administer or waste properly controlled substances which they sign out, and to chart the administration of drugs they administer. Mepheridine is the generic name for Demerol, and is a controlled substance pursuant to Chapter 893, Florida Statutes.
Recommendation Having found the Respondent guilty of violating Sections 464.018(1)(c), Florida Statutes, it is recommended the Respondent's license be revoked; however, it is recommended that the revocation be suspended and the Respondent's license be suspended for one year and placed upon probation for two years thereafter during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board. Having found the Respondent guilty of violating Section 464.018(1)(f), Florida Statutes, it is recommended the Respondent's license be suspended for three years; however, it is recommended that the final two years of the suspension be abated and the Respondent be placed upon probation the final two years during which time the Respondent would be required to submit regular drug screening tests and adhere to any other reasonable conditions imposed by the Board. DONE and ORDERED this 28th day of June, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
Findings Of Fact On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee, Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician. Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985. COPIES FURNISHED: K. C. Collette, Esq. HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401 Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301 ================================================================ =
The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health is the state agency responsible for certifying and regulating basic X-ray machine operators in Florida. Sections 468.3001-.312, Florida Statutes. On March 30, 1993, Paul Butler was issued Basic X-ray Machine Operator Certificate Number 7729. The certificate expired December 31, 1994, and Mr. Butler requested renewal by submitting a renewal form and the required fee to the Department on December 20, 1996. Mr. Butler admitted that he knew his certificate expired December 31, 1994, but that he nonetheless took numerous X-rays subsequent to that date. On January 4, 1996, Mr. Butler prepared and submitted an application for employment to Kristie Green, office manager for South Dade Orthopedic Associates. In that application, Mr. Butler signed his name and appended to his name the designation "RMA, CRT." Ms. Green interviewed Mr. Butler, and he provided her with a copy of his certificate that showed an expiration date of December 31, 1995. Ms. Green noted that his certificate had expired four days previously, and Mr. Butler told her he was short of funds and would send in his renewal application when he received his first paycheck. Ms. Green hired Mr. Butler as an X- ray technician and medical assistant. After Mr. Butler repeatedly assured her that he had sent his renewal application to the Department, Ms. Green fired Mr. Butler on June 20, 1996, because he had not obtained a current Basic X-ray Machine Operator certificate. The evidence presented by the Department is sufficient to establish that Mr. Butler took X-rays without having an active certificate, and that he identified himself in his employment application to South Dade Orthopedic Associates as a Certified Radiologic Technologist by using the letters "CRT" after his signature. The evidence presented is also sufficient to permit the inference that Mr. Butler altered his basic X-ray Machine Operator certificate by changing the expiration date from December 31, 1994, to December 31, 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health issue a final order finding that Paul Butler violated Section 468.3101(h), Florida Statutes, by violating Section 468.302(1) and (2) and that he violated Section 468.3101(f). Based on the violations, the Department of Health should impose the following penalties: Suspend Mr. Butler's Basic X-ray Machine Operator certificate for a period of six (6) months; Impose an administrative fine in the amount of Six hundred twenty-five dollars ($625.00); and Condition the reinstatement of Mr. Butler's certificate on his having completed thirty (30) hours of continuing education. DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Morton Laitner, Esquire Department of Health 401 Northwest 2nd Avenue Suite N-1014 Miami, Florida 33128 Paul Butler, pro se 30525 Southwest 149th Court Leisure City, Florida 33033 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
Findings Of Fact By letter dated April 14, 1986, the Respondent denied the Petitioner's application to take the medical technologist examination in microbiology under the provisions of the Florida Clinical laboratory Law, Chapter 483, Florida Statutes because the Petitioner did not show "verification of 4 years pertinent microbiology experience required under Section 10D-41.69(5), Florida Administrative Code." By letter dated May 6, 1986, the Petitioner disputed the factual allegations contained in the Respondent's letter of denial and requested an administrative hearing. An informal administrative hearing was held in this cause on August 25, 1986. The hearing officer at the informal proceeding concluded that there were disputed issues of material fact and that the case should be reset for a formal hearing. On November 26, 1986, the Department of Health and Rehabilitative Services referred the matter to the Division of Administrative Hearings for conduct of a formal administrative hearing. On February 17, 1987, a Notice of Hearing was mailed to both parties setting this cause for April 15, 1987, in Miami, Florida. The Petitioner's notice was addressed to 461 Lee Drive, Miami Springs, Florida 33166. All documents within the case file indicate that that is the Petitioner's correct address. The Notice was not returned to the Division of Administrative Hearings by the postal service. The Petitioner failed to attend the formal hearing, did not send a representative and did not communicate with the undersigned in any way regarding the formal hearing. After waiting approximately 45 minutes past the scheduled time for commencement of the formal hearing, the hearing was opened and the Respondent indicated that it did not desire to present any evidence. Therefore, no evidence was taken and the hearing was adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petitioner's application to take the medical technologist examination in microbiology be denied. DONE and ORDERED this 6th day of day May, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1987. COPIES FURNISHED: Leonard Helfand, Esquire District XI Legal Counsel 401 Northwest 2nd Avenue Suite 1040 Miami, Florida 33128 Robert Acle 461 Lee Drive Miami Springs, Florida 33166 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a clinical laboratory technologist's license be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-99775 COPIES FURNISHED: Terry L. Bennett Route 6, Box 249 Lake City, FL 32055 Also mailed to Ms. Bennett at the following address: 1461 Cedar Bay Road Jacksonville, FL 32218 Robert M. Eisenberg District IV Counsel Post Office Box 2417F Jacksonville, FL 32231 William J. Page, Jr. Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32301
Findings Of Fact Rubin Klein, M.D., dispenses radiation therapy treatments at his office in Hollywood, Broward County, Florida, just north of the Dade County line. He uses two cobalt machines for this purpose. Cobalt's radioactivity fades at an approximate rate of one percent per month, and at least one of Dr. Klein's machines has deteriorated to the point that it cannot be used much longer. Dr. Klein would like to see the failing machine replaced by a linear accelerator, but he does not want to bear the expense of acquiring a linear accelerator, particularly since his practice fell off sharply two or three years ago with the opening of a radiation therapy department at Hollywood Memorial Hospital. Dr. Klein has offered to donate his equipment to petitioner, and petitioner proposes to accept Dr. Klein's donation of his better cobalt unit, to bear the expense of moving the cobalt unit, to acquire a linear accelerator, to construct an appropriate facility, and to install the equipment. Petitioner estimates that it would cost approximately eight hundred twenty-three thousand dollars ($823,000.00) to accomplish this. On the other hand, Dr. Klein estimates that it would cost approximately two hundred five thousand dollars ($205,000.00) to acquire a linear accelerator and to install it in his office. Once the physical changes which it proposes have been accomplished, petitioner proposes to hire Dr. Klein's office staff, including a full-time radiation physicist and two radiation therapy technicians. In August of 1977, petitioner submitted its application for certificate of need, joint exhibit No. 1, receipt of which was acknowledged by Mr. Robert E. Straughn on behalf of the Office of Community Medical Facilities, on August 29, 1977. Joint exhibit No. 2. The staff of the Health Systems Agency of South Florida, Inc. prepared an analysis of petitioner's application, which concluded with a recommendation against approval of the application. Joint exhibit No. 4, p. 31. Because of petitioner's proximity to Broward County, the Health Systems Agency of South Florida, Inc. solicited the views of the Health Planning and Development Council for Broward County on petitioner's application, but these views were never made known. A review committee of the Health Systems Agency of South Florida, Inc. voted against granting petitioner's application. In a memorandum from the review committee's chairperson to the Health Systems Agency's Board of Directors, the committee's reasons were stated as follows: Although this is a transfer and upgrade of existing equipment, it still represents excess capacity for the total community. The project does not foster cost containment since construction costs represent the expense of building a new unit. (The committee felt that such expense would be asking the community to absorb unnecessary costs.) Joint exhibit No. 7. On October 18, 1977, the Board of Directors of the Health Systems Agency of South Florida, Inc. adopted the staff's analysis and voted to recommend denial of petitioner's application because, inter alia, "[i]t is less costly to maintain the facility in its present location." Joint exhibit No. 8. On November 16, 1977, Mr. Art Forehand wrote petitioner that the Office of Community Medical Facilities had also reviewed the application and had also concluded that it should be denied. Joint exhibit No. 9. Petitioner's hospital is located in Dade County on Biscayne Boulevard one fifth of a mile south of the Broward County line. Petitioner has six or seven oncologists on its medical staff and 20 percent of its beds are filled by cancer victims, half of whom receive radiation therapy. The demographic data suggest that cancer patients will continue to occupy petitioner's beds in like or greater numbers. Seventy-eight percent of petitioner's patients are 65 years old or older, an age group three or four times more vulnerable to cancer than the general population. As things now stand, petitioner's patients must leave the hospital in order to receive radiation therapy. This ordinarily necessitates transportation by ambulance. The cost for such transportation to Dr. Klein's office and back is sixty-five dollars ($65.00). Dr. Klein's office is four and one half miles from petitioner's hospital. Approximately three percent of Dr. Klein's patients are hospitalized at Biscayne Medical Center, Inc., and travel to and from his office by ambulance. The practice of radiation medicine occurs more and more in hospitals rather than in radiologists' offices, and this trend is generally believed to be desirable. Tumors may be treated surgically or chemically instead of or in addition to being treated with radiation. Physicians sometimes disagree among themselves as to whether surgery, medicine or radiation is indicated in a given case. Petitioner's cancer patients would benefit from examination by a radiation oncologist as well as by other medical specialists. A cancer victim who presents himself at a radiologist's office may not have been examined beforehand by a medical oncologist or by a surgical oncologist; a cancer patient who has been admitted to a hospital is perhaps more likely to be examined by these specialists before a course of treatment is settled on. Chemotherapy and various heat treatments, which are more readily administered in a hospital setting, may enhance the beneficent effects of radiation in some cases. Hospitalization facilitates observation of patients and detection of untoward side effects. In practice, however, nine outpatients for every one inpatient "tends to be the normal spread for a radiation therapy department." (R326) Radiation emitted from a linear accelerator can be focussed more sharply than radiation emitted from a cobalt unit. For Hodgkin's disease, certain pituitary and other disorders, a linear accelerator is a much better means of treatment than a cobalt unit is. Since radiation tends to destroy human tissue, whether diseased or healthy, the linear accelerator's relative precision can be a significant advantage in a wide range of cases. Treatment takes more time with a cobalt unit, especially one with a failing source of radiation. Dr. Klein estimates he could treat a fifth again as many people in the same time, with a linear accelerator. What constitutes optimum utilization of radiotherapy equipment is a matter of debate. Dr. Richard Johnson testified that six to seven thousand patients annually constitute "the maximum you can give good treatment," (R153) apparently on the basis of a 35 hour work week. (Rl54) On the other hand, the staff of the Health Systems Agency of South Florida, Inc. used a 48 hour work week in its calculations and concluded that both Dade and Broward County have substantial excess capacity in radiotherapy equipment. Both Dade and Broward Counties do, in fact, have excess capacity in radiotherapy equipment. On the assumption that Dr. Klein's practice would grow, if removed to petitioner's hospital, and on the assumption that Dr. Klein would charge (in addition to the hospital's charges) twenty dollars per procedure (which he indicated was the very minimum he might charge), Mr. Donald Dahlfues testified that the federal government might be billed less for the same number of treatments if Dr. Klein performed them in petitioner's hospital than if he performed them in his present office. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for certificate of need. DONE and ENTERED this 17th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1978. APPENDIX Paragraphs one, two, three, four, five, six, seven, eight, nine, ten, eleven, fourteen, fifteen, and nineteen of petitioner's proposed findings of fact are generally supported by the evidence and have largely been adopted, in substance, insofar as relevant. Paragraph thirteen of petitioner's proposed findings of fact recites an "optimum accepted utilization rate" which was not established by the evidence. Paragraph sixteen of petitioner's proposed findings of fact is not supported by the evidence and has not been adopted for that reason. One of petitioner's witnesses indicated that 90 percent of the anticipated use of the equipment would be on an outpatient basis. While another of petitioner's witnesses claimed that hospital bed time would be reduced in some cases, petitioner's administrator is looking to "increased inpatient days as a result of having the equipment" (R43) to help defray the cost of the equipment. Paragraph seventeen of petitioner's proposed findings of fact states a debatable policy conclusion rather than a fact established by the evidence at the hearing. Paragraphs eighteen, twenty and twenty-one of petitioner's proposed findings of fact are not supported by the evidence as a whole and have not been adopted for that reason. Paragraphs one, three, four, five, six, seven, eight, nine, ten, thirteen, fourteen, sixteen, seventeen, eighteen, nineteen and twenty-one of respondent's proposed findings of fact are generally supported by the evidence and have largely been adopted, in substance. COPIES FURNISHED: Edward R. Rumin, Esquire Adams and Adams 2870 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Milton E. McRay, Esquire 6502 Powers Ferry Road, N. W. Atlanta, Georgia 30339 Steven W. Boss, Esquire 1323 Winewood Boulevard Room 309 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner's application for certification by examination as a basic X-ray machine operator should be approved or denied.
Findings Of Fact In February 2009, the Petitioner submitted an application to the Respondent for certification by examination as a basic X-ray machine operator. The application was submitted by “Ultimate Medical Academy” (UMA), where the Petitioner obtained his basic X-ray training, but the Petitioner provided the information contained therein and was responsible for the accuracy of the application. On the Petitioner’s application, he stated that he was employed in “basic x-ray” at Palm Harbor MRI, and indicated that “100%” of his time at Palm Harbor MRI was related to duties other than radiography, nuclear medicine, or radiation therapy. On February 19, 2009, the Respondent notified the Petitioner that the application was incomplete because it lacked a criminal history record from the Florida Department of Law Enforcement. On April 14, 2009, the Respondent received the Petitioner’s criminal history record, which revealed convictions between the years 1993 and 2002, and related periods of incarceration, for retail theft, felony grand theft, felony uttering of forged checks, other forgeries, and failure to appear. The Petitioner was also convicted of federal crimes, including possession of counterfeited checks in 2000 and felony uttering a forged check in 2002. The Petitioner spent three years in federal prison and, in December of 2003, was transferred to a halfway house after his release. His most recent sentence included a probationary period that expired at the end of May of 2007. As part of the application process, the Petitioner advised the Respondent that his civil rights had been restored on January 31, 2008. The Petitioner provided documentation to the Respondent that spelled his first name as “Erin.” For purposes of this Recommended Order, the restoration of civil rights has been deemed applicable to the Petitioner. The Respondent reviewed the Petitioner’s application, including the criminal history and the restoration of civil rights, and denied the application because of the Petitioner’s criminal history. The specific basis for the denial was the Respondent’s concern with the access an X-ray operator has to the personal belongings and medications of a patient while X-ray images are obtained, as well as to the personal and medical information contained within patient records. After receiving the Respondent’s decision, the Petitioner requested an administrative hearing to challenge the denial. After issuing the initial Notice of Intent to Deny, the Respondent became aware of potential issues related to the Petitioner’s employment during and after his training at UMA. As part of his educational training, UMA placed the Petitioner into an externship at Palm Harbor MRI for a six-week period of clinical practice. The externship ended on April 4, 2008, when he graduated from the UMA. The quality of the Petitioner’s job performance at Palm Harbor MRI is not at issue in this proceeding. There is no evidence that he was not competent to perform the tasks assigned to him during the externship. On April 9, 2008, the Petitioner began working as a full-time employee at Palm Harbor MRI. He performed some customer contact duties, greeting patients and gathering information. His duties also included placing and positioning patients on the X-ray table, imputing the machine settings (“technique”) and operating the X-ray machine, including the administration of radiation to obtain the desired images. Positioning patients for X-rays, machine technique, and operating the radiation equipment constitutes the practice of radiologic technology. The Petitioner was supervised by a licensed technician at all times during his positioning of patients and operation of the machine. The Petitioner performed these duties without being properly licensed. After the Respondent learned of the Petitioner’s job responsibilities at Palm Harbor MRI, the Respondent issued an Amended Notice of Intent to Deny that identified the alleged unlicensed activity as an additional basis for denial of the application. The Respondent also initiated a review of the Palm Harbor MRI facility’s operating procedures that was continuing at the time of the hearing. The application information originally disclosed by the Petitioner was inaccurate because it failed to reveal that he was involved in performing radiography at Palm Harbor MRI. In May 2009, the office manager at Palm Harbor MRI requested that the Petitioner provide a copy of his certificate, apparently unaware that the Petitioner had no license at that time. When he was unable to provide the certificate, his employment was terminated on May 18, 2009. The Petitioner has asserted that he was exempt from licensure because he was a student attending St. Petersburg College (SPC) with the intention of being admitted to the SPC radiologic technology program, and ultimately to become licensed as a radiography technologist. Students attending a medical school or “enrolled in and attending” a radiologic technology educational program are statutorily exempt from licensure during their educational period; however, there is no evidence that UMA students are entitled to the exemption. Although SPC has a radiologic technology educational program, the Petitioner has neither been admitted to the program nor attended any classes within the program’s curriculum. Additionally, Palm Harbor MRI is not an approved clinical training site for students enrolled in and attending the SPC radiography program. The Petitioner had not applied to the SPC radiography program prior to termination of his employment from Palm Harbor MRI, and the applications subsequently submitted by the Petitioner for application to the SPC radiography program were denied. There was no credible evidence presented at the hearing that the Petitioner was a medical student or was enrolled in and attending a radiologic technology educational program at any time relevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying the Petitioner's application for certification by examination as a basic X-ray machine operator. DONE AND ENTERED this 29th day of December, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2009. COPIES FURNISHED: Donna Erlich, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 C. Erica White, Esquire Quintairos, Prieto, Wood & Boyer, P.A. 215 South Monroe Street, Suite 510 Tallahassee, Florida 32301 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
