The Issue The issue is whether the medical license of Respondent, Elizer F. Castro, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint. The Petitioner, Department of Professional Regulation, Board of Medical Examiners, (DPR) presented the testimony of David F. Scales, M.D., John E. Danson, and Steven J. Clark, M.D. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented his own testimony and that of Melvin Greer, M.D., by deposition. Respondent's Exhibit 1 was admitted in evidence. DPR recalled John E. Danson for rebuttal. The transcript of the proceedings was filed on November 2, 1987. The deposition of Melvin Greer, M.D., was filed on November 24, 1987. The parties agreed that they would file proposed findings of fact and conclusions of law within ten days following the filing of the Greer deposition. DPR filed its proposed findings of fact and conclusions of law on December 4, 1987. Respondent's proposed order was filed on December 11, 1987, and is therefore untimely. It has not been considered. The proposed findings of fact submitted by DPR have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times relevant, Elizer F. Castro, M.D., was a licensed physician in the State of Florida, having been issued license number ME 0029506. Dr. Castro treated a patient, A.S., from May 9, 1983, to September 23, 1986. Dr. Castro treated A.S. for narcolepsy. A.S. was formerly treated by David Scales, M.D., of Jacksonville, Florida. Dr. Scales, a neurologist, treated A.S. for narcolepsy from December 16, 1982, until March or April, 1983. At that time, Dr. Scales discontinued treatment because he had received outside information that A.S. was a known drug dealer. Narcolepsy is a sleep disorder in which the patient has an uncontrollable urge to fall asleep at inappropriate times. Diagnosis of narcolepsy can only be made through a patient history and patient information regarding symptoms, past illnesses, past physicians, prior medications, sleep patterns and the existence of features associated with the disease such as cataplexy, nightmares and sleep paralysis. According to Dr. Castro, he took such a patient's history and performed a complete physical examination during the first visit by A.S. on May 9, 1983. Dr. Castro also asserted that he called Dr. Scales' office immediately following the first visit with A.S. and was advised by the physician's assistant that A.S. had been treated by Dr. Scales for narcolepsy. However, Dr. Castro's medical records, including the patient information sheet, do not contain any documentation of the history, specific examination results, or the phone calls to Dr. Scales' office. The first page of the medical records regarding A.S. which is entitled "Patient Information" reflects information regarding tests which were done on August 5, 1983, at Jacksonville Memorial Medical Center following involvement of A.S. in an automobile accident. Clearly this information was not given to Dr. Castro during the first visit of May 9, 1983 (despite Dr. Castro's testimony to the contrary), because these tests were not even done until three months after the first visit. Hence, these tests cannot be relied on by Dr. Castro to support his clinical diagnosis of narcolepsy because the tests postdate the diagnosis and because Dr. Castro never sought copies of the test results. Both Dr. Clark, DPR's expert, and Dr. Greer, Dr. Castro's expert, expressed the opinion that the medical records maintained by Dr. Castro failed to reflect an adequate history upon which to make the clinical diagnosis of narcolepsy. It is also important to perform certain tests in order to rule out other etiologies or problems which can complicate or confuse a physician in the diagnosis of narcolepsy. Here, Dr. Castro's records do not reflect any such testing prior to Dr. Castro's diagnosis of narcolepsy in A.S. In diagnosing narcolepsy in A.S., Dr. Castro acknowledged that his diagnosis was based on the representations of A.S. that he had narcolepsy and had been treated in the past for narcolepsy. Dr. Castro also stated that he did a physical examination, took an extensive patient history, and spoke to Dr. Scales' office for confirmation of the narcolepsy diagnosis. Dr. Castro did not record any of this in the patient records. Dr. Castro treated A.S. for narcolepsy by prescribing Preludin, 75 milligrams, three times per day. A.S. told Dr. Castro that that was medication he had been receiving and that was the dosage he had been receiving form Dr. Scales. In order to follow A.S. on this medication, Dr. Castro began by prescribing 45 tablets for a fifteen day supply. Dr. Castro saw A.S. at fifteen day intervals for the first few visits in order to monitor his progress and to examine him for side effects. Only after assuring himself that the dosage was correct and any side effects were being effectively managed, did Dr. Castro began prescribing the Preludin on a monthly basis. After November, 1983, Dr. Castro saw A.S. on a monthly basis to monitor his medication. Preludin is the brand name for phenmetrazine hydrochloride, which is a sympathomimetic amine and Schedule II controlled substance. The Physician's Desk Reference (PDR) is compiled by drug companies and contains data on all drugs, including indications for use, contraindications, adverse side effects, and recommended dosages. The PDR states that the maximum safe dose of Preludin is one 75 milligram tablet per day. The PDR also reflects that Preludin is contraindicated with hypertension. Dr. Castro was treating A.S. for hypertension. While Dr. Castro was prescribing Preludin in dosages beyond those set forth in the PDR, his prescription was not inappropriate. According to Dr. Greer, prescribing Preludin three times a day is a dosage that would be within a medically safe range and would be within the range appropriate within a physician's professional practice. Additionally, that prescription and dosage, being monitored on a monthly basis for side effects, would be within the range of sound medical practice. The dosage prescribed by Dr. Castro is also within the appropriate range that would be used on a patient of this type who had hypertension, as long as the physician also follows the hypertension. Here, Dr. Castro prescribed medication for A.S.'s hypertension and, according to Dr. Greer, that medication and treatment was appropriate. Dr. Castro's records reflect that A.S. was not referred for any consultations with other specialists until November 20, 1986. According to Dr. Greer, waiting two and one-half years to refer a patient for consultation with a neurologist to confirm the diagnosis of narcolepsy would be inappropriate unless the doctor had gotten additional information to confirm the diagnosis. Here, Dr. Castro asserts that he did receive additional information in the form of telephone confirmation by Dr. Scales' physician's assistant which confirmed the diagnosis of narcolepsy. Dr. Castro did not record this in his medical records. Dr. Castro practiced medicine within the community standard in his diagnosis and treatment of A.S. His failure was in the lack of documentation throughout his treatment of A.S.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order, and therein: Dismiss Counts II, III, IV, and V of the Administrative Complaint. Find Elizer F. Castro, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes, as set forth in Count I of the Administrative Complaint. Assess a fine in the amount of five hundred ($500) dollars. Order Elizer F. Castro, M.D., to attend and complete continuing medical education in the area of record keeping. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4106 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2); 4(3); 5(4); 6 & 7(5-7); 8(7); 9(8); 10(8); 14(10); 15(11); 16(11); 17(11); and 18(12). Proposed findings of fact 11, 12, 13, and 19-23 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Clyde E. Wolfe, Esquire 1 Corporation Square, Suite B-10 St. Augustine, Florida 32086 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue for determination is whether Respondent failed to maintain the good moral character requisite to continued certification as a Correctional Probation Officer in violation of Section 943.13(7), Florida Statutes.
Findings Of Fact Respondent is James C. Norman, holder of Correctional Probation Certificate 152252. Respondent was employed in the capacity of correctional officer at the Union Correctional Institute. Bruce M. Fitzgerald, personnel manager at Union Correctional Institute, supervises drug screening of correctional officers at the Institute. Fitzgerald set up a drug screen to be administered to Respondent on October 16, 1995. Respondent came to Fitzgerald’s office on that date where Fitzgerald explained the process to Respondent, provided Respondent with a chain of custody form bearing specimen identification number 09A664423, and obtained Respondent’s signature on a Employee Drug Testing Notice. Respondent was instructed to go to Bradford Hospital in Starke, Florida for the collection of his urine sample and submission of that urine sample for the drug screening process. Pamela Langham, a licensed practical nurse for the past 20 years, was working on October 16, 1995, in the Acute Care Office at Bradford Hospital where obtaining specimens for drug screening was a part of her duties. On October 16, 1995, Langham received from Respondent the chain of custody form bearing specimen identification number 09A664423. Langham then followed standard protocol in obtaining Respondent’s urine sample by having Respondent empty his pockets, turn the pockets inside out, take off any loose fitting garments, wash his hands and clean his fingernails, and remove his footwear. Langham then had Respondent go into the restroom and obtain his urine specimen in a container. Respondent returned from the restroom with the container where Langham then gave Respondent the lid for the container. The specimen container was then sealed in Respondent’s presence. Langham had Respondent sign the specimen container. The container was then sealed in a plastic bag upon which Respondent placed his initials. Respondent’s specimen container was then refrigerated for later pick up by a courier and transportation to the laboratory in Tampa, Florida, for analysis. Langham completed a portion of the chain of custody form number 09A664423 which was sent along with the specimen to the laboratory. Michael Dean Miller, an expert in the field of forensic chemistry, is the toxicology manager and records custodian at the laboratory where Respondent’s specimen was received. The laboratory is certified by the State of Florida and nationally accredited by the College of American Pathologists. At the final hearing, Miller presented the documents prepared in the reception and testing of specimen number 09A664423. Respondent’s specimen was received in a sealed package by Enoris Moore at the laboratory on October 16, 1995. The specimen seal was intact and bore no indication that the specimen had been contaminated in any way. The specimen was analyzed and handled in accordance with the requirements of the laboratory and the State of Florida. Respondent’s specimen was tested in accordance with standard and accepted procedures in the industry. The specimen was examined by Mark Bartalini. The specimen tested positive for the presence of cocaine metabolite. Compared to a minimum cut off for testing for drug presence in urine of 150 nanograms, Respondent’s urine sample contained 11,649 nanograms which is considered a high level. This result indicated the actual presence of cocaine metabolite in Respondent’s system. Respondent denied usage of any other compound which may have affected the level of cocaine metabolite found to exist in his urine sample. His additional denial of cocaine consumption prior to the collection of his urine sample is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking his certification. DONE AND ENTERED this 7th day of May, 1997, in Tallahassee, Leon County, Florida. DON W.DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-3060 (904) 488-9675 SUNCOM 488-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 James C. Norman Post Office Box 651 Raiford, FL 32083 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact The Respondent Albert Sneij is a licensed medical physician, having been issued license number ME 0034499. The current office address of the Respondent is 125 Fifth Street, Miami Beach, Florida. Dr. John V. Handwerker, a licensed physician was the Petitioner's sole witness. Dr. Handwerker, who has served as an Assistant Professor of Pharmacology at the University of Miami, was requested by the Department to examine the patient records obtained from the Respondent during the course of a Department investigation, evaluate whether the prescriptions contained in the patient records were appropriate or excessive and whether such prescriptions were adequately documented in the patients' clinical records. Dr. Handwerker evaluated the Department's investigative file and the Respondent's clinical records, involving eight patients: Charles Thomas Whitecup, John Marsden, Carole Rosen, Thomas T. Bellamy, John Barbosa, Rex Bridwell, Thomas Sestito and Margaret Lee Baker. Dr. Handwerker's testimony was based solely on his review of the records since none of the patients involved in this case were seen or examined by him. Charles Whitecup's records revealed that he suffered an injury four years prior to his being prescribed Dilaudid by the Respondent. The injury was a gunshot wound to his left leg on which an exploratory laparotomy was subsequently performed. At that time it was discovered that the gunshot had torn the femoral artery and inflicted substantial nerve plexus damage. Upon examination of Whitecup, the Respondent noted weakness and atrophy in the left extremity and numbness in the anterior portion of his leg. Additionally, Whitecup suffered from bursitis in the knee with pain in the knee and patellar ligament. The Respondent diagnosed chronic left leg pain due to femoral nerve plexus damage and asked Whitecup to bring his medical records to his next appointment which as scheduled in ten days. Based on this diagnosis, the Respondent prescribed 30 Dilaudid, 4 milligrams. Thereafter, Whitecup lost his original prescription and a replacement prescription was issued on April 7, 1982. This was the only prescription which was filled and the only prescription recorded in the Respondent's clinical records for this patient. The records of this patient, Petitioner's Exhibit 1(a) and the Respondent's examination justify and document prescribing the Dilaudid for this patient. Additionally, Whitecup specifically requested that the Respondent prescribe Dilaudid since this was the only medication which relieved his chronic pain. John Marsden was issued a single prescription by the Respondent for Dilaudid, 4 milligrams, on March 8, 1982. Although no clinical records exist to justify this prescription, the Respondent remembered Marsden as suffering from a long-standing chronic pain problem. During the time that the Marsden prescription was written, the Respondent was in the process of moving his office and the clinical records for this patient were probably lost during the move. The Respondent wrote two prescriptions for 20 and 25 Dilaudid, 4 milligrams, to Carol Rosen on February 9, 1982 and March 8, 1982, respectively. Both prescriptions were written when the Respondent was located in his old office and like Marsden, were probably among the records lost in the course of moving offices. The Respondent has no recollection of this particular patient. 2/ In response to the missing Marsden and Rosen records, the Respondent has instituted a new record keeping system and detailed records for all patients are now kept. The Respondent wrote six prescriptions for Thomas Bellamy between March and May of 1982, for 171 Dilaudid, 4 milligrams. Bellamy suffered from back and neck spasms for nine years prior to his initial examination by the Respondent. He was Bellamy had ever obtained for pain was when he was prescribed Dilaudid. During a follow-up examination, the Respondent noted that Bellamy's activities were limited and that his pain was primarily centered in the lower back in the area of L-5, S-1, with occasional radiation to the left leg. The Respondent wanted to take an x-ray but did not because Bellamy was unwilling to incur the cost. Although six prescriptions were written by the Respondent based on only two examinations of the patient, the clinical records for Bellamy, Petitioner's Exhibit 1(d), and the Respondent's examinations of the patient justify and document the prescribing of Dilaudid for this patient. The Respondent examined John Barbosa on May 5,1982, and diagnosed an injured disc between L4-5 during the week prior to the exam. This patient demonstrated spinal spasms during the exam with limited mobility. A single prescription of 36 tablets of Dilaudid, 4 milligrams, was written for the patient. This proscription was justified and documented by the clinical records, Petitioner's Exhibit 1(e) and the examination performed by the Respondent on the patient. In January, 1982, the Respondent first examined Rex Bridwell, a double knee amputee. Bridwell consulted the Respondent due to a vascular disease which caused grangrene and resulted in the amputations. Bridwell's legs had not healed and ulcerous lesions were visual at the amputation sites. Bridwell, who had been unsuccessfully treated for the previous six years, was understandably in a great deal of distress and pain as a result of his condition. The Respondent prescribed painkillers, antibiotics, vitamins and discussed with Bridwell alternative therapy including, prayer, hypnosis and meditation. Bridwell was subsequently examined by the Respondent on February 2, 1982 and March 4, 1982. The Respondent prescribed Tuinal on March 3, 1982, 30 tablets, 3 grams; and Dilaudid on March 23, 1982, 40 tablets, 4 milligrams and April 8, 1982, 24 tablets, 4 milligrams, for Bridwell. These drugs were prescribed for Bridwell's severe pain. Bridwell's clinical record, Petitioner's Exhibit 1(f), and the examinations performed by the Respondent demonstrate that these prescriptions were justified and documented. 3/ On January 26, 1982, the Respondent examined Thomas Sestito, a carpenter, who came to the Respondent complaining of severe back aches which resulted from his falling off a roof in 1979 and subsequently reinjuring his back. X-rays from Baptist Hospital confirmed that Sestito suffered a facture at L2. Sestito's pain was at L4 and LB and radiated into his right thigh. The Respondent diagnosed sciatica and prescribed a total of 70 Dilaudid, 4 milligrams, on January 27, 1982, March 7, 1982 and March 11, 1982 and 30 Tuinal, 200 milligrams, on February 10, 1982. 4/ The prescribing of Dilaudid in this case was justified and is documented by the patient's clinical record, Petitioner's Exhibit 1(g) and the Respondent's examination on January 26, 1982. Finally, the Administrative Complaint charges the Respondent with unlawfully prescribing Dilaudid on April 8, 9 and 14, 1982 to Lee Baker. The clinical record, Petitioner's Exhibit 1(h), indicates that two of these prescriptions were written to "Margaret Baker" and only the April 9, 1982, prescription was written to "Lee Baker." Although Margaret Baker's middle name is "Lee", insufficient testimony was introduced to establish that all three prescriptions were written for the same person. Additionally, the Petitioner did not attempt to amend the Administrative Complaint prior to hearing to conform the allegations contained in the Complaint to the evidence which was to be introduced at final hearing. Accordingly, only the prescription written on April 9, 1982, to Lee Baker is relevant to the allegations contained in Counts 29-32 of the Administrative Complaint. Due to the lack of certainty that "Margaret Lee Baker" and "Lee Baker" are the same person, it follows that the clinical record introduced at final hearing, Petitioner's Exhibit 1(h), might contain two sets of records or one set of incomplete records. Under such circumstances, the Petitioner has failed to prove through the introduction of the clinical record of Margaret Lee Baker, that the Respondent unjustifiably prescribed controlled drugs or kept inadequate records concerning Lee Baker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Sneij guilty of violating Counts 8 and 12 of the Administrative Complaint, not guilty of violating the remaining counts, and placing him on probation for three months subject to the condition that the Respondent demonstrate to the Board of Medical Examiners the adequacy of his present medical record keeping system prior to the end of this period. DONE and ORDERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 29th day of September, 1983.
The Issue The issue is whether Petitioner is entitled to the validation and scoring of his test scores on the Florida Educational Leadership Examination on January 21, 2006.
Findings Of Fact On January 21, 2006, Petitioner took the Florida Educational Leadership Examination (FELE) at a site in Miami. Persons who take and pass the FELE are eligible for certification as administrators. As is the case with all persons taking the FELE, prior to attending the examination, Petitioner received the "Certification Examinations for Florida Educators . . . Registration Bulletin" (Registration Bulletin). The Registration Bulletin warns prominently on page 14: I understand that examinees cannot bring any electronic communication or recording device, including a cellular phone, beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player, into the testing room or break areas around the testing room. Prior to taking the FELE, Petitioner also received a document titled, "Important Information about Cheating Behaviors" (Booklet). Section 1 of the Booklet warns that "cheating" is defined as, among other things: "During the examination, using, or attempting to use, prohibited aids, as identified in Section 2." Section 2 of the Booklet describes "prohibited aids" as follows: You cannot bring any of the following prohibited aids to the test room. They include: cell phones or any other electronic communication or recording device such as a beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player. . . . The last section of the Booklet is titled, "General Testing Information and Procedures." This section warns: "If you bring any prohibited items such as a cell phone to the test, you will not be admitted to the test room." The second to last page of the Booklet restates: "I understand that examinees cannot bring any electronic communication or recording device, including a cellular phone, beeper, personal digital assistant (PDA) such as a Palm Pilot, or listening device such as a compact disc or tape player, into the testing room or break areas around the testing room." Paragraph 4 of the last page of the Booklet warns one last time: "Do not bring to the test room any prohibited aids such as cell phones (see the enclosed letter for other prohibited aids); leave them locked in your car. You will not be admitted to the test if you bring them with you. If you are discovered to have prohibited aids during the test, your test scores may be invalidated." Test administrators, room supervisors, and proctors receive a Test Administration Manual for the Florida Educational Leadership Examination. Page 17 of the manual advises that the examinees receive several warnings not to bring prohibited aids, including cell phone, into the test room or break areas around the test room. The manual informs the testing staff: DO NOT ADMIT an examinee to a test room if you observe a cell phone or other prohibited device. Tell the examinee he or she cannot enter with the device but may be admitted if he or she can return without it (e.g., lock it in the car) AS LONG AS IT IS POSSIBLE TO DO SO AND RETURN TO CHECK IN BY THE TIMETESTING BEGINS (15 minutes after the reporting time on the admission ticket). The manual adds: If the prohibited aid is not discovered until after the examinee has been admitted to the test room, see Identifying and Documenting Suspected Cheating, incident number 1 on the next page. The manual lists three incidents, arranged in ascending order of seriousness. These incidents and the appropriate procedures for the testing staff are: Incident: It is discovered that an examinee has a prohibited device, SUCH AS A CELL PHONE, but the examinee is not immediately suspected of using the device (e.g., a cell phone rings and the examinee turns it off without using it). PROCEDURE: ? Quietly inform the examinee that he or she is in possession of a prohibited aid, which the examinee has been informed is not permitted in the test room. ? Tell the examinee to place the aid in the envelope that has been provided by the Institute for that purpose and write the examinee's name on the envelope. ? Hold the envelope in a safe location. ? Tell the examinee that the item may be retrieved at the end of the test. ? If the examinee refuses to relinquish the prohibited device, follow MISCONDUCT guidelines on page 21. ? Carefully document the incident, noting the time and duration of the incident, for inclusion in the irregularity reports, C-1 and C-2. Attach the answer folder to the C-1 irregularity report. Incident: An examinee is observed USING a prohibited aid, such as a cell phone or photographic device, to obtain or communicate test content either in the test room or in break areas around the test room. PROCEDURE: ? If the Room Supervisor does not observe the event, notify him or her immediately; at least two testing staff must observe and document in writing the behavior and one of them must be the Room Supervisor. ? NOTIFY THE TEST ADMINISTRATOR IMMEDIATELY. If the examinee is to be dismissed during the test, the Administrator should do the dismissal, if available to do so. ? The Room Supervisor should quietly inform the examinee that his or her test is being stopped because of the prohibited aid and ask him or her to step outside the room. The Room Supervisor should take along and protect the test materials and prohibited aid. ? The prohibited device should be examined to determine if there is the possibility that confidential test information was recorded (for example, if the device is a scanner pen or if a cell phone has a lens device). If so, document that information on the C-2, Cheating and Misconduct Observation Report. DO NOT ATTEMPT TO CONFISCATE THE DEVICE. ? If the examinee hides the device, ask him or her to produce it, but do not touch the examinee. ? The Administrator should inform the examinee that he or she is being dismissed from the test. If asked what will happen next, say only that the Department of Education will provide further information. ? Carefully document the incident, noting the time and duration of the incident, on the irregularity reports, C-1 and C-2. Attach the answer folder to the C-1 irregularity report. ? If the examinee causes a disturbance, such as refusing to leave or return test materials, see MISCONDUCT guidelines on page 21. Incident: An examinee is SEEN WITH A "CHEAT SHEET" OR IS OBSERVED USING NOTES OR OTHER WRITTEN MATERIALS to obtain information or pass information to another examinee. PROCEDURE: ? If the Room Supervisor does not observe the event, notify him or her immediately; at least two testing staff must observe and document in writing the behavior and one of them must be the Room Supervisor. ? NOTIFY THE TEST ADMINISTRATOR IMMEDIATELY. If the examinee is to be dismissed during the test, the Administrator should do the dismissal, if available to do so. ? The Room Supervisor should quietly inform the examinee that his or her test is being stopped because of the written notes and ask him or her to step outside the room, taking the test materials and written notes with you. ? The notes should be examined. CONFISCATE THE NOTES. If the examinee hides the notes, ask him or her to produce it, but do not touch the examinee. ? The Administrator should inform the examinee that he or she is being dismissed from the test. If asked what will happen next, say only that the Department of Education will provide further information. ? Carefully document the incident, noting the time and duration of the incident, on the irregularity reports, C-1 and C-2. Attach the confiscated notes and answer folder to the C-1 irregularity report. Respondent's exhibit omits page 21 of the manual, which contains the "misconduct guidelines. The only other relevant provision in the portion of the manual included in the exhibit provides that the Room Supervisor should greet the examinees with a scripted introduction. This introduction includes the warning: "Cell phones, books, study aids, calculators, electronic devices, and papers of any kind, including scratch paper, are NOT permitted during the testing." The Room Supervisor posted in a prominent place at the front of the test room a notice, in large print, stating: "cell phones are prohibited in test rooms and surrounding break areas." Petitioner could not possibly have avoided seeing the notice, which was printed on yellow paper, prior to starting subpart one of the FELE. Although Petitioner arrived at the test room in time for the commencement of subpart one of the FELE, he was late enough that he missed some of the pretest instructions. As he entered the test room, he was wearing an earpiece, which communicates with his cell phone by way of Bluetooth wireless technology, provided the cell phone is sufficiently close to the earpiece. As Petitioner walked past the Room Supervisor to take a chair in the test room, the Room Supervisor immediately noticed the ear piece and recognized it as a Bluetooth device, which would allow for wireless, remote communication with a cell phone. The Room Supervisor informed Petitioner that he needed to remove the device, but Petitioner replied only that he would turn it off. Lacking much time for an extended exchange with Petitioner, the Room Supervisor joked that such devices cause cancer and directed one of the proctors to help Petitioner complete the registration application. By the time that Petitioner had entered the test room, the Room Supervisor had already given the instructions on how to complete the registration application. As Petitioner was taking his seat, the Room Supervisor began giving the instructions on how to take the test. For some reason, Respondent introduced into the record a registration application of Petitioner for the October 22, 2005, administration of the FELE. However, Petitioner likely completed the same form for the January 21, 2006, administration of the test. The form states, just above the examinee's signature: "I hereby agree to the conditions set forth in the Registration Bulletin " At least partly due to Petitioner's late arrival, the group in his room was late starting the test, which was being administered simultaneously in several separate rooms at this test center. A few minutes after starting the test, the Test Supervisor was told by the proctor, who had attended to Petitioner, that Petitioner still had the earpiece in his ear. The Room Supervisor informed the proctor to summon the Test Administrator to handle the situation. The Test Administrator entered the room a few minutes later and saw the Bluetooth earpiece in Petitioner's ear while he was taking subpart one of the FELE. During the next break, the Test Administrator approached Petitioner and told him he could not use the Bluetooth earpiece during the test. Petitioner responded that the device was off and other examinees had cell phones in their pockets and purses. The Test Administrator offered to take the device up to his office. Petitioner refused to relinquish the device. After considerable coaxing, Petitioner finally agreed to remove the device during the next two subparts of the test. By letter dated March 1, 2006, Respondent informed Petitioner that it was invalidating his scores on subtest one, and thus subtests two and three, of the Florida Educational Leadership Examination (FELE) administered on January 21, 2006. The letter states that several witnesses had seen Petitioner, during subtest one, wearing in his ear an earpiece of a cell phone. There is no doubt that the Room Supervisor would have allowed Petitioner to take all three subparts of the FELE, if Petitioner had agreed to the simple request to remove his Bluetooth earpiece. Petitioner tried to justify his intransigence by contending that his earpiece was off and other examinees had cell phones in their pockets or purses. Evidently Petitioner was unaware on the morning of the test that his choice was to remove the earpiece before starting the test or take the test with the earpiece in and have all of his scores invalidated. Petitioner chose the second option, so Respondent properly invalidated all of his scores.
Recommendation It is RECOMMENDED that the Department of Education enter a final order invalidating Petitioner's scores on subparts one, two, and three of the Florida Educational Leadership Examination administered on January 21, 2006. DONE AND ENTERED this 20th day of June, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 20th day of June, 2006. COPIES FURNISHED: Lynn Abbott, Agency Clerk Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Scott J. Odenbach Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 John Roques 17475 Southwest 182 Avenue Miami, Florida 33187
Findings Of Fact Stipulated facts: Respondent Division of Licensing received Petitioner Iaderosa's application of a Class "P" intern license on October 7, 1980. By letter to Petitioner dated November 13, 1980 Respondent stated "Your application for a Class "P" Detection of Deception Examiner/Intern license has been approved. This license will be issued upon submitting the items listed below. However, should your fingerprint card be returned by the FBI indicating that you have a previous arrest record, the Department of State reserves the right to revoke your license. Please forward the following for the issuance of your license: Fee $30 [and] Certificate of Insurance. Respondent received the requested license fee and certificate of insurance on or before April 14, 1981. Respondent notified Petitioner on June 4, 1981: "Your application for the above referenced license [Administrative Denial/Detection of Deception Intern Class 'P' license] has been denied pursuant to Chapter 493.575, Florida Statutes which states: ... 'The Department of State may take the same disciplinary actions based upon the same grounds as set forth in Chapter 493.319, Florida Statutes...'." Petitioner conducted polygraph examinations without a license. Petitioner Iaderosa was employed by the Southern Institute of Polygraph on October 10, 1980 immediately subsequent to graduation from its accredited detection of deception examiner's school. She had applied for an intern license prior thereto but had not been licensed by Respondent or received notification that her application had been approved. Her sponsor for the compulsory year of internship was Joseph M. Matthews, a licensed detection of deception examiner and the Director of the Southern Institute of Polygraph, who remained Petitioner's sponsor until April 17, 1981 when he notified Respondent of his withdrawal as her sponsor. The next month after her employment, on November 13, 1980, Petitioner received notification that her license application had been approved and would be issued upon receipt of a fee and a certificate of insurance. There was no mention of deficiencies under Section 493.565 or 493.566 relative to her application or license requirements: Petitioner commenced her employment, mistakenly believing her employer and sponsor would pay the required fee and send it to Respondent together with her certificate of insurance which had become effective September 8, 1980 (Respondent's Exhibit #4). She was provided business cards indicating that she was an examiner and account executive. She conducted polygraph examinations scheduled by her employer at the direction of and under the supervision of Matthews until she became familiar with the operation of the equipment and then conducted examinations without supervision. Petitioner left her employment with the Southern Institute in February or March of 1981 and interviewed for a job at three (3) other polygraph schools. It was brought to her attention through the search for other employment that she must have a license in her possession to conduct polygraph examinations. At that time she realized that neither she nor her employer had complied with the request to furnish the certificate and fee requested on November 13, 1980. Prior to April 14, 1981 Petitioner sent to Respondent the detection of deception intern fee of $30 together with a certificate of insurance previously requested. Petitioner gained employment with Deception Control, Inc., a business owned and operated by Charles G. Michaels, who notified Respondent on March 26, 1981 that he would sponsor Petitioner. Later, he emphasized by letter that Petitioner would not be administering examinations until she received her intern license from the Department of State. Subsequent to receipt of the fee and certificate of insurance on or before April 14, 1981 allegations were made to respondent Division of Licensing that Petitioner had removed confidential materials from the Southern Institute Of Polygraph at the time she left her employment. These allegations, together with the allegation that Petitioner had conducted polygraph examinations without a license, caused Respondent Division of Licensing to reverse its former approval of her application for licensure. On June 4, 1981 Respondent rescinded its letter of approval dated November 13, 1980 in which it had requested a fee and certificate of insurance and notified Petitioner that her application for licensure had been denied. Respondent contends that the request for license fee and certificate of insurance was a request to "supply additional information" which was not timely supplied and therefore the letter of denial was appropriate. At the hearing no evidence was produced to show that Petitioner removed materials from her former employer's offices or that she betrayed professional secrets and she denied the allegations.
Recommendation Officer recommends that the Respondent agency issue a detection of deception intern examiner's license to the Petitioner. County, Florida. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: William D. Ricker, Jr., Esquire Post Office Drawer 7028 Fort Lauderdale, Florida 33338 Assistant General Counsel Department of State R. A. Gray Building, Room 106 Tallahassee, Florida 32301 Department of State The Capitol
The Issue The issue presented is whether Petitioner is entitled to attorney?s fees pursuant to section 57.105, Florida Statutes (2011), and if so, what constitutes a reasonable fee?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of veterinarians in the State of Florida pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. At all times material to these proceedings, Petitioner has been a licensed veterinarian in Florida, having been issued license number VM 5290. Petitioner was the treating veterinarian for a dog named, Awesomer, owned by Sheri Lawhun. On April 28, 2009, Ms. Lawhun brought Awesomer to Petitioner for examination and treatment. Details of the treatment provided to Awesomer are related in the Findings of Fact in the Merits Case. For the purposes of this Final Order, it is sufficient to state that Respondent treated Awesomer from April 28-30, 2009, and that on April 30, Awesomer died. Ms. Lawhun filed a complaint with the Department of Business and Professional Regulation regarding the care and treatment Respondent provided to Awesomer. Just prior to his provision of care for Awesomer, Dr. Langford?s office switched to a “paperless” system, which involved switching to electronic medical records, bookkeeping, etc. Petitioner testified in the Merits Case that the medical record itself is stored on the computer software and that there are a wide variety of “print screen” options available. Dr. Langford demonstrated the complicated nature of the software and the ability to “hide” different parts of the medical records from the print screen, as well as to copy and paste entries to the “top” or most recent page, of the medical record. The software does not allow the user to delete record entries, but does allow a user to hide them, change the dates for them, or make them unavailable to print. There are also entries on screens called “snatch screens” that do not print. As a result, there are three different sets of medical records for the same period of time for Awesomer that were admitted into evidence in the underlying case: 1) Petitioner?s Exhibit A, which was printed on May 16, 2009, at the request of Ms. Lawhun; 2) Petitioner?s Exhibit B, which is the copy of the records printed on July 15, 2009, in response to the complaint filed with the Department; and 3) Petitioner?s Exhibit C, which was printed August 2, 2011, and provided to Petitioner?s counsel during the litigation of this case. The three sets of medical records are not identical. Dr. Langford attributed these differences to entries that he ordered “declined” or hidden, so that the client did not see them, or because information was on the “snatch screen” in the program, which does not print. For example, the information related to Awesomer?s final visit to the clinic, according to Dr. Langford, was moved to the top of the record on May 16, 2009, so that Ms. Lawhun could see what happened on the day the dog died. He claimed that the entry was originally recorded soon after the dog?s death, but that it was moved when providing the records to Ms. Lawhun. Similarly, the date of the dog?s death is recorded in Petitioner?s Exhibits A and B as May 1, 2009, the first business day following the dog?s after-hours? visit. It is changed to April 30, 2009, in Petitioner?s Exhibit C. After the initial investigation of this case, counsel for the Department prepared a draft closing order and presented it to the probable cause panel for the Board of Veterinary Medicine at its meeting April 21, 2010. However, after some concerns expressed by the panel members, the Department?s recommendation was changed from closing the case to obtaining an expert review of the file. The Department had the file reviewed by two veterinary experts, Dr. Jerry Green and Dr. Melanie Donofro. Dr. Donofro is a former member of the Board of Veterinary Medicine. Both experts opined that there were problems with the care and treatment of Awesomer, as well as problems with the medical records for Awesomer. As a result of the expert witness reviews, a four-count Administrative Complaint was drafted and filed, charging Respondent with violating subsections 474.213(1)(r)(violation of the relevant standard of care); 474.213(1)(ee)(failure to keep contemporaneously written medical records as required by rule of the board); 474.214(1)(w) (practicing at a location without a valid premises permit); and 474.214(1)(m)(failure to notify Board of a change of address). The case was not taken back to probable cause prior to the drafting of the Administrative Complaint because of a computer data entry error that resulted in a computer record indicating probable cause had already been found. As is recounted below, the case eventually was presented to the probable cause panel a second time on the issue of medical records. Because the Fees Motion is directed to the medical records count, the failure to take the case back to the probable cause panel before the filing of the original Administrative Complaint has no real significance at this point. Petitioner?s assertion that counsel for the Department had a personal vendetta against him and had to remember that probable cause was not found at the April 2010, meeting is specifically rejected. As stated by Ms. Henderson at hearing, Dr. Langford?s case was one of many presented for consideration. While it is unfortunate that an error occurred, it is not indicative of any “personal” interest in prosecuting Petitioner. The Department and Dr. Langford agreed to a settlement that would have dismissed three of the four counts in the Administrative Complaint, and imposed a minimal penalty for Count III. However, when the stipulation was presented to the Board for approval, it was rejected. Board members voiced serious concerns regarding both the standard of care given to Awesomer and the adequacy of the medical records. The prosecutor told the Board that the Department entered into the settlement stipulation “in the interest of getting the case wrapped up,” and that the Department believed that the case would be a “battle of the experts” with respect to the standard of care issue. Ultimately, the Board voted to reject the stipulation offered and offered a counter proposal that would have resulted in dismissal of all of the charges except the medical records count, with a penalty consisting of a $1,500 fine, 30 days probation, and costs. Dr. Langford rejected the counter- proposal. An Amended Administrative Complaint was prepared and, along with the expert reports received, was submitted to the probable cause panel for review and approval. Also included in the materials was Dr. Langford?s response to the Amended Administrative Complaint. While counsel for Dr. Langford offered to “walk them through” his response to the allegations contained in the Amended Administrative Complaint, counsel acknowledged that she did not have anything to add that was not in his written response. The probable cause panel voted to approve amendment of the Administrative Complaint to a single charge of violating section 474.213(1)(ee). The panel also directed counsel for the Department to consult one of its experts, Dr. Green, to make sure the allegations in the Amended Administrative Complaint were consistent with his opinion. She did so. Contrary to Petitioner?s assertions, the panel did not simply “rubber stamp” the actions of the Department. Dr. Jones indicated her agreement with Dr. Green?s expert opinion, and there is lengthy discussion of the case. See Petitioner?s Exhibit P, pages 13-21, and 23-26. Respondent disputed the allegations in the Amended Administrative Complaint and on June 24, 2011, the case was forwarded to the Division of Administrative Hearings to conduct a section 120.57(1) hearing. Discovery and motion practice was active and, at times, acrimonious.1/ See, for example, the Order on Pending Motions, dated August 24, 2012. On August 29, 2012, Respondent filed the Fees Motion giving rise to this proceeding. The Fees Motion contains a certification that it was served on Petitioner on August 4, 2012. Ironically, much of the Fees Motion has nothing to do with the allegations contained in the Amended Administrative Complaint. The first four pages of the Fees Motion present Dr. Langford?s version of what happened in the final days of Awesomer?s life, and include facts not found anywhere in the pleadings. The next sections deal with accusations of the dog owner involving a psychic, and “public untrue statements about Respondent,” by Ms. Lawhun, which are also accusations not finding their way into the Department?s charging document. It is not until page 16 of the Fees Motion that the actual allegations that would give rise to the motion are identified and discussed. Ultimately, a Recommended Order was submitted that recommended dismissal of the Second Amended Administrative Complaint. The Recommended Order was issued after a section 120.57(1) hearing, and after consideration of all of the evidence presented at that hearing. The Board of Veterinary Medicine issued a Final Order on June 25, 2012, adopting the Findings of Fact and Conclusions of Law contained in the Recommended Order. At the time Petitioner filed the Fees Motion, the case was proceeding on the Amended Administrative Complaint. There was pending at that time a Motion to Amend the Amended Administrative Complaint, which was granted, and the case went to hearing on the Second Amended Administrative Complaint. At pages 16-17 of the Fees Motion,2/ Petitioner asserts that the Department alleges that he failed to properly document the dog?s heart rate and did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of the heart rate.3/ The basis for Petitioner?s challenge is an attack on the sources used by and the opinion of Dr. Donofro, one of the Department?s experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding Awesomer?s heart rate. The Department had a reasonable basis upon which to file the allegations in the Second Amended Administrative Complaint, and to proceed with those allegations. Petitioner cites to the Department?s allegations regarding his failure to record a fecal test. It was found in the Recommended Order that Respondent did not perform a fecal test (hence no record for one). While the Recommended Order concluded that the Department did not prove a medical records violation on this ground by clear and convincing evidence, the medical records indicate that the pet owner had reported that Awesomer had suffered from diarrhea the night before, and noted that his stool was “near normal” at the clinic. A notation of “near normal” stool could be interpreted, as it was in light of testimony presented at hearing, that no fecal test was performed and that the notation was based upon observation alone, or that fecal tests resulted in findings that were close to normal but that were not expressly recorded. Petitioner?s record is ambiguous enough to support either interpretation, and the Department relied on the interpretation of its experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the tests, or lack thereof, of Awesomer?s stool, and the Department had a reasonable basis to include the allegation in the Second Amended Administrative Complaint and to proceed with prosecution. Respondent takes issue with the allegations regarding low-urine gravity and other serum values. The specific allegations, found at paragraphs 12-13 of the Second Amended Administrative Complaint, state: Respondent performed a urinalysis for Awesomer. Respondent recorded in the medical records that he found a “low urine gravity,” but failed to address the elevated serum creatinine, serum albumin, serum sodium, and urine pH in Awesomer?s medical records. Dr. Donofro found the failure to address these values to be a problem. Ultimately, Dr. Langford?s testimony that he documented the values in the record but did not record any follow-up based on his belief that the identified values were not abnormal was credited at hearing. However, the fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the evaluation of serum creatinine, serum albumin, serum sodium, and urine pH. The Department had a reasonable basis on which to include the allegations in the Second Amended Administrative Complaint and to proceed with the prosecution of these allegations. At page 16 of the Fees Motion, Petitioner takes issue with paragraphs 14-15 of the Second Amended Administrative Complaint, which allege that Respondent failed to record any indication that Awesomer drank excessively, beyond the tentative diagnosis of polydipsia. Dr. Donofro?s report specifically addresses the failure to indicate excessive fluid consumption in that one would expect to see a notation regarding the level of consumption, in light of Respondent?s tentative diagnosis for Awesomer. Once again, however, the inclusion of this item in the Second Amended Administrative Complaint was based upon expert reports received by the Department prior to filing the Amended Administrative Complaint and the Department had a reasonable basis for including it and for prosecuting it. At page 19 of the Fees Motion, Petitioner takes issue with the allegation that he failed to include anything in the medical records for April 28, 2009, to support the administration of Phenylpropanolamine. This allegation is discussed by Dr. Donofro in her report, upon which the Department relied. At hearing, the issue was decided in Dr. Langford?s favor based upon his testimony and that of his expert witness, Dr. Vega (who is also a former member of the Board of Veterinary Medicine). However, the Department had a reasonable basis for including this factual allegation in the Second Amended Administrative Complaint and for prosecuting it. At pages 19-20 of the Fees Motion, Petitioner takes issue with the inclusion of allegations related to the documentation of a modified water-deprivation test. He is especially critical because he testified that he performed a modified water-deprivation test as opposed to a water- deprivation test, and states that the medical records clearly delineate that a modified water-deprivation test was performed. While the April 28, 2009, entry indicates that a modified water- deprivation test will be performed, there are other entries in the records for Awesomer that refer to scheduling and conducting a water-deprivation test. Based on the records, Dr. Donofro addressed this issue in her report.4/ While Petitioner ultimately prevailed on this issue, there was a legitimate basis for the Department to include the allegations in the Second Amended Administrative Complaint and to proceed with these allegations. On page 21 of the Fees Motion, Petitioner alleges that “Amended administrative complaint lines 25-26 allege Respondent failed to record in Awesomer?s medical record for April 29, 2009, anything regarding this visit, including the lactated- ringers solution administration. It is there in the record for that date, clear as day, that it was administered, as it was, on April 30, 2009, not on April 29, 2009.” Petitioner?s allegation is not consistent with the actual allegations in the Second Amended Administrative Complaint. That document states: Respondent?s written response from July 7, 2009, states that he examined Awesomer after 9:30 PM on April 29, 2009 and “found nothing abnormal in the examination of the dog, but considered the possibility of the lingering effects from the water deprivation study.” Respondent failed to record in Awesomer?s medical records for April 29, 2009, anything regarding this visit or examination. Respondent?s written response from July 7, 2009, also states that he examined Awesomer after 9:30 PM on April 29, 2009, and “placed a catheter in [Awesomer?s] arm, and administered 1000 cc of [Lactated Ringers Solution].” Respondent failed to record in Awesomer?s medical records for April 29, 2009, that he placed a catheter or administered the Lactated Ringers Solution (LRS). The Fees Motion does not mention the July 7, 2009, response by Dr. Langford. It was not admitted into evidence in this proceeding or in the disciplinary proceeding. It is, however, mentioned in Dr. Donofro?s report, and she comments on the discrepancy between Dr. Langford?s account of the events and Ms. Lawhun?s. Dr. Donofro also discusses at length what she viewed as some ambiguities in the recording of the amount of LRS, and opined that the amount provided under either interpretation she could reach was inappropriate. There was a basis upon which the Department could rely for including these allegations in the Second Amended Administrative Complaint and proceeding with those allegations. At page 21 of the Fees Motion, Petitioner claims that the Department alleges “in administrative complaint line 35 that Respondent should have included a „discussion? of electrolytes and white blood count,” and claims that there are no facts to support a records violation for line 35. Paragraph 35 of the Second Amended Administrative Complaint simply states that “the CBC results indicated that Awesomer?s white blood count was elevated.” A review of both the original and the Amended Administrative Complaint confirm that neither of those documents have the allegation of which Petitioner complains, at paragraph 35. Paragraph 36 of the Second Amended Administrative Complaint alleges that “Respondent failed to record any explanation or discussion of the results of the CBC or General Health Profile with Electrolytes in the April 30, 2009, medical records for Awesomer.” Dr. Langford?s criticism that “this is a medical record, not a dissertation,” is flippant at best, and ignores the requirement in Florida Administrative Code Rule 61G18-18.002(1) that the records “contain sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered.” Concerns about issues revealed in the CBC were discussed in Dr. Donofro?s report, and the lack of follow-up or discussion led her to believe that certain possibilities in treatment were overlooked. The Department?s belief, that some reference other than the test result itself was necessary, was reasonable given the need for records to justify a diagnosis, and the Department had a basis to proceed with this allegation. Finally, at page 22 of the Fees Motion, Dr. Langford takes issue with the Department?s allegations that medical records were not contemporaneously recorded for events taking place April 30, 2009. Yet, there is no dispute that there are three separate versions of the medical records in this case, and one of the issues presented was the discrepancy in dates for certain services. The Department had a reasonable basis to proceed with the allegations with respect to the May 16, 2009, entries.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice medicine and for regulating such licensees on behalf of the state. Respondent practices general medicine under license number ME 0042559. The parties stipulated to all material facts alleged in the Corrected Second Amended Administrative Complaint except one. The disputed fact is whether Respondent maintained adequate medical records of her treatment of patient R.W. with Lortab. Lortab is a legend drug within the meaning of Section 465.003(7). It contains hydrocodone. Hydrocodone is a Schedule III controlled substance in Chapter 893. On April 7, 1989, Respondent signed a prescription for 30 Lortab 7.5 mg tablets as an analgesic medication for a toothache. Respondent's medical records contain no entry for R.W.'s office visit on April 7, 1989, and no entries disclosing the nature of R.W.'s complaint, diagnosis, plan of treatment, or justification for prescribing Lortab. On January 5, 1990, Respondent prescribed Indocin 7.5 mg., an anti- inflammatory medication, and Lortab 7.5 mg. for R.W.'s shoulder pain. Respondent's medical records contain no entries documenting the examination of R.W., exam results, or diagnosis. There is no justification in Respondent's medical records for prescribing Lortab for R.W. on January 5, 1990. In addition, Respondent failed to document the number of Lortab tablets prescribed for R.W. on January 5, 1990. On January 26, 1990, R.W. complained of pain in his right shoulder secondary to an injury sustained while pushing a car. Respondent again prescribed Lortab 7.5 mg. Respondent did not document in her medical records the number of Lortab tablets prescribed. On February 25, 1990, R.W. advised Respondent that he had reinjured his shoulder in a fight. Respondent instructed R.W. to wear a sling and rest. Respondent again prescribed Indocin and Lortab 7.5 mg. On May 4, 1990, R.W. again complained of shoulder pain. Respondent performed an x-ray of R.W.'s shoulder. Respondent's medical records do not document that the x-ray was taken or the results of the x-ray. On May 4, 1990, Respondent diagnosed R.W. with possible rotator cuff tear. Respondent prescribed Indocin and Lortab 7.5 mg. Respondent's medical records do not document the number of Lortab tablets prescribed. Respondent did not know the number of Lortab tablets R.W. received or the number he took each day. Respondent's medical records do not document Respondent's instructions concerning the number of tablets to be taken each day or the frequency with which the tablets were to be taken. Respondent's medical records do not document the number of refills R.W. was given. On May 24, 1990, Respondent's medical records document that she warned R.W. of the potential for addiction to Lortab. However, Respondent continued to prescribe Lortab without documenting the amount of Lortab prescribed for R.W. Respondent failed to keep written medical records justifying the course of treatment for R.W., including patient history, examination results, and records of drugs prescribed. Respondent failed to document patient history on April 7, 1989. Respondent failed to document x-ray examination results on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 458.331(1)(m), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed herein. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1995.
The Issue The issue in this case is whether the Board of Medicine should discipline Respondent under section 458.331(1)(g), Florida Statutes (2006),1/ for failures to perform statutory or legal obligations allegedly revealed during an inspection of her medical practice on March 17, 2007. Respondent denies the charges and also defends on the ground of laches.
Findings Of Fact Respondent holds license ME 59800, which allows her to practice medicine in Florida, subject to regulation by DOH and the Board of Medicine. In March 2006, it was noted on Respondent's license that she was a dispensing practitioner, meaning that she could sell or dispense medication. Her medical office at the time was at 5840 Park Boulevard in Pinellas Park. Respondent has been practicing medicine in Florida since 1998. She has not been disciplined by the Board of Medicine. Her practice treats patients for infectious diseases. She often is referred patients who cannot be treated effectively by their regular internists. Although licensed as a dispensing practitioner, Respondent actually has not been operating as a dispensing practitioner. She was not purchasing medications for resale to her patients. (She sometimes gives her patients free samples.) Rather, Respondent stores at her office medications purchased by her patients in large quantities to save money. Sometimes, patients bring their medications to Respondent; sometimes, an online pharmacist sends her patients' medications directly to Respondent's medical practice. Respondent keeps the medications in her office until the patients come in for treatment by infusion or injection. If enough of a reusable medication remains after infusion or injection, Respondent will store the left-over medication, sometimes in a refrigerator or freezer, for subsequent reuse. Respondent has no wholesale contracts for medications and is not affiliated with any manufacturer of medications. Respondent's medical office is in a two-story building. The patient lobby and reception area, Respondent's personal office, and several infusion and examination rooms are on the first floor. The second floor is used to store medications. Every three to four weeks, an employee sweeps the office for expired medications and puts them in storage on the second floor. A biohazard removal service comes to the office once a month to remove and dispose of discarded sharps, used non-reusable medications, and expired medications. DOH conducted a routine inspection of Respondent's medical practice in February 2007. The practice was rated satisfactory in all 28 elements of the inspection, including: clean and safe dispensing area; proper storage of medications requiring refrigeration; expiration/discard date of prescription labels provided in written form; no controlled substances; and outdated medications removed from stock satisfactorily. Respondent's medical practice also was subject to periodic Medicaid inspections and biohazard inspections that were passed satisfactorily. At some time before March 17, 2007, DOH received a complaint that Respondent's patients were being seen and treated by unlicensed medical assistants on Saturdays when Respondent was not present. On Saturday, March 17, 2007, Pinellas Park police and DOH inspectors "raided" the practice. After making sure it was safe to discontinue and postpone patient treatments, DOH ordered all patient treatment to stop and ordered all patients to leave the building. The police officer took photographs of the medical practice. The inspection and photographs resulted in the charges leveled against Respondent in this case. (They also resulted in charges that Respondent facilitated the unlicensed practice of medicine, but DOAH jurisdiction over those charges was relinquished to allow the Board of Medicine to reconsider probable cause.) Findings as to Count I Count I of the Amended Administrative Complaint alleges that Respondent violated Florida Administrative Code Rule 64B16- 28.110 by failing to remove expired and deteriorated medications from her stock of medications at least every four months and by selling or dispensing expired medications. On March 17, 2007, there were some expired and deteriorated medications at Respondent's medical practice. The deteriorated medications were partially or almost completely used medications. In some cases, it was unclear whether the expiration date was a prescription expiration or a medication expiration. One medication bore an expiration date of 1994. There was no rational explanation for how that date came to be on the medication since Respondent was in New Jersey then and was not practicing medicine in Florida until 1998. Except for possibly the mysterious medication bearing the 1994 expiration date, there was no proof that any medications were expired for more than four months. To the contrary, the evidence was that there were no expired medications in storage as of February 7, 2007. Findings as to Count II Count II of the Amended Administrative Complaint alleges that Respondent violated section 499.005(1), Florida Statutes, by storing medications in a freezer that were not supposed to be stored that way, or by possessing legend drugs for which she could not produce pedigree papers. The evidence proved that Respondent stored medications in a freezer that were labeled "refrigerate." The evidence did not prove that those medications were not allowed to be stored in a freezer, or that storage in a freezer would adulterate the medication or render it unfit for use. To the contrary, there was evidence that, for at least one of the medications being stored in a freezer (ceftriaxone, generic for Rocephin), freezing can extend the useful life of the medication for up to 26 weeks. As DOH points out, it cannot be assumed that the same is true of another medication (Azactam) found in a freezer at Respondent's medical practice and labeled "refrigerate." But DOH did not prove that the useful life of Azactam cannot be extended by freezing. DOH proved that Respondent could not produce pedigree papers for any of the medications found at Respondent's medical practice on March 17, 2007. It would not be expected that Respondent would have pedigree papers for medications purchased by her patients from other pharmacies and stored at Respondent's office for their convenience. Those pedigree papers would be held by the pharmacies that sold the medications to the patients. Since Respondent was not acting as a dispensing practitioner, she was not receiving pedigree papers and did not even know what they were on March 17, 2007. Findings as to Count III Count III of the Amended Administrative Complaint alleges that Respondent violated rule 64B8-9.0075 by leaving a syringe, or allowing a syringe to be left, on the counter in the reception area of her office, or by storing or allowing medications to be stored in a refrigerator with uneaten food in a McDonald's bag. Respondent herself was not physically present at her medical office on March 17, 2007, which was a Saturday, before the arrival of the police and DOH inspectors. There was a syringe left on the counter in the reception area of Respondent's office that was photographed by the police officer and seen by him and the DOH inspectors. There was no evidence as to the circumstances of how or when the syringe came to be there. It is possible that it was left there by someone who was interrupted in the provision of medical services by the raid that morning. It was not proven that, as a result of the syringe left on the counter, Respondent was not providing appropriate medical care under sanitary conditions. On March 17, 2007, medications were being stored in a refrigerator with a McDonald's bag that had food in it. There was no evidence as to the circumstances of how or when the bag of food came to be in the refrigerator, but it was unlikely that it was placed there because of the raid that day, and it was inappropriate to store medications in the refrigerator with the food bag. There was other evidence that Respondent's medical practice was not providing patients with appropriate medical care under sanitary conditions. Open vials and injection and infusion devices lay on unsanitary shelves and other surfaces. Refrigerators and freezers where used medications and infusion and injection devices were being stored were not cleaned appropriately. Floors were not cleaned appropriately. However, those items were not specifically charged in the Amended Administrative Complaint. Findings as to Count IV Count IV of the Amended Administrative Complaint alleges that Respondent violated section 456.057, Florida Statutes, by maintaining patient records in an unlocked file cabinet in an examination room, or by maintaining medical records (or allowing them to be maintained) in plain view of anyone who approached the reception area of Respondent's office. DOH proved that there were records stored in an unlocked cabinet in one of Respondent's examination rooms, but it was not proved that they were patient records. Neither the police officer nor any inspector looked at the records to ascertain what they were. Respondent testified that they were administrative records, not confidential patient records. There were patient files left lying on the shelf of the half-door between the patient lobby and waiting area and the reception desk of Respondent's medical practice. There also were open files on the reception desk that possibly could have been seen and read (upside down) by someone standing at the counter in front of the reception desk. These files were photographed by the police officer and seen by him and the DOH inspectors. There was no evidence as to the circumstances of how or when the files got there. It is possible that they were left there by someone who was interrupted in the provision of medical services by the raid that morning. Respondent's Defenses Respondent contends that the photographs taken at her office on March 17, 2007, were "staged"--i.e., that the charges were trumped up by moving or placing items to be photographed (including the McDonald's bag) to make it appear that Respondent was in violation when she was not. The police or DOH investigators did not stage the photographs. Respondent herself testified that she did not believe her medical assistant and other office staff would have done so. That leaves only her medical assistant's boyfriend, who may have been there on March 17, 2007. No plausible reason was given why the boyfriend would have done such a thing (although it is conceivable that he might have placed a McDonald's bag in the refrigerator). Part of Respondent's case that violations were staged was the hearsay of a patient who was there on March 17, 2007. Respondent testified that, when she arrived at the office during the raid, the patient told her she was being "set up," that he saw patient files being placed in open view on countertops and saw someone enter the back door with coffee and food that was placed in the refrigerator. She says he told her that he would testify to what he saw in her defense. Respondent also contends that laches bars the Amended Administrative Complaint because the employee assigned to monitor and discard expired medications and the patient whose hearsay claimed Respondent was set up have died. There was no evidence as to when these individuals died, or why Respondent was unable to preserve their testimony before they died. The Administrative Complaint was filed in March 2008. Respondent requested a disputed fact hearing in April 2008. No evidence was presented at the hearing as to why the matter was not referred to DOAH until February 2012. DOAH files, which can be officially recognized, indicate that at least some of the delay related to settlement negotiations and the consideration of settlement proposals through August 2008. In October 2008 and again in 2011, Respondent's office computer systems malfunctioned, resulting in the loss of digital patient appointment records for March 2007. No evidence was presented at the hearing as to how DOH is responsible for this loss or how the loss of patient appointment records prejudiced Respondent in the presentation of her defense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: finding Respondent guilty of one of the violations alleged in Count III of the Amended Administrative Complaint, but not guilty of the other charges; issuing a letter of concern; and imposing a $1,000 fine. DONE AND ENTERED this 4th day of September, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 4th day of September, 2012.
The Issue Should Respondent's Concealed Weapon or Firearm License, Number W97-01073 be revoked?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Louis R. Lupold was born in the State of Pennsylvania on February 22, 1941, and lived in the State of Pennsylvania until the late 1960's. On January 8, 1997, Respondent Louis R. Lupold filed an Application for a Concealed Weapon or Firearm License with the Department. As part of the application, Respondent was required to file a completed fingerprint card. Respondent filed one complete fingerprint card and one incomplete fingerprint card. The Department submitted the completed fingerprint card to the Florida Department of Law Enforcement (FDLE) for state and federal processing for any criminal justice information. Upon the expiration of 90 days from the date of application, the Department had not received any criminal justice information from either the FDLE or the Federal Bureau of Investigation (FBI) concerning Respondent's criminal justice information. Therefore, since there was no other basis for denial, the Department in accordance with Section 790.06(6)(c), Florida Statutes, issued Respondent a Concealed Weapon or Firearm License, Number W97-01073. Subsequently, the Department received the criminal justice information from the FBI on Respondent indicating that he had been arrested for disqualifying offenses. The match made by the FBI was a fingerprint identification in that the FBI was able to match all of Respondent's fingerprints with those of the person identified with the criminal charges, as opposed to a demographic match, where only a portion of the fingerprints match, but with other available information the FBI believes the applicant to be the same person as the person identified with the criminal charges. Upon request, the Department received certified copies of Louis Roy Lupold's criminal record as it appeared in the files of the Pennsylvania State Police, Records and Identification Division. The records received from the Pennsylvania State Police indicate that Louis Roy Lupold, was born on February 22, 1940, and had been arrested on July 25, 1962, for burglary and larceny, both a felony in the State of Pennsylvania at that time. The records further indicate that Louis Roy Lupold had been found guilty of burglary and larceny and placed on two years county probation. There is sufficient evidence to show that Respondent Louis R. Lupold is the same person identified as Louis Roy Lupold in the files of the Pennsylvania State Police, notwithstanding the one year difference in the date of birth. Respondent has not had his civil rights and firearm authority restored in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order revoking Respondent's Concealed Weapon and Firearm License, Number W97-01073. DONE AND ENTERED this 3rd day of February, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1998. COPIES FURNISHED: Honorable Sandra Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel The Capitol, Plaza Level 02 Tallahassee, Florida 32299-0250 Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, Florida 32399-0250 Louis R. Lupold, pro se Post Office Box 865 Zolfo Springs, Florida 33890
The Issue The issue in this case is whether the part of Department of Environmental Regulation Rule 17-103.170, Florida Administrative Code, which charges appellants $.50 per page for preparation and transmittal of records on appeal from final DER action, constitutes an invalid exercise of delegated legislative authority.
