The Issue Whether Respondents committed the offenses described in the Amended Administrative Complaints? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Haro is now, and has been since April of 1980, a licensed pharmacist in the State of Florida. He holds license number PS 0017949. Rome is now, and has been since February of 1978, the holder of permit number PH 0007008, which authorizes it to operate La Generosa Pharmacy (hereinafter referred to as "La Generosa" or the "Pharmacy") as a community pharmacy in Dade County, Florida. At no time in the past has Rome, as the holder of permit number PH 0007008, been disciplined by the Board of Pharmacy. For the past eighteen years, Roger Diaz has been Rome's sole corporate shareholder and the owner of the Pharmacy. Haro was employed as the prescription department manager of La Generosa and its only pharmacist from approximately October 16, 1990, until some time after the dates of the alleged violations in these consolidated cases. He worked full-time (40 hours a week). Harold Gluck is an investigator with the Department. On December 4, 1990, at approximately 2:00 p.m., Gluck attempted to conduct a routine annual inspection of the Pharmacy, which had last been inspected 13 months previous. Upon entering the Pharmacy, Gluck found that there was no pharmacist on duty. Diaz was there, however. The lights in the prescription department were off and a "closed" sign was posted. A door to the prescription department, although closed, was unlocked. Gluck opened the door, walked in and turned on the lights. He saw Haro's license hanging on the wall. On the counter, he observed prescription vials containing pharmaceuticals. It appeared to Gluck that someone had been in the process of filling these vials and had been interrupted before completing the task. Gluck inquired of Diaz as to the whereabouts of the pharmacist. Diaz, in response to Gluck's inquiry, indicated that Haro had taken the day off to tend to some personal business. Gluck then asked Diaz who was filling the prescription vials "if the pharmacist isn't here." Diaz responded, "I don't know." Gluck continued his inspection. On the shelves in the prescription department he discovered a large number of expired drugs, some of which had expiration dates that predated the last inspection of the Pharmacy that had been conducted 13 months previous. None of the drugs that had been outdated for more than 13 months had been on the shelves during the last inspection. Gluck's inspection on December 4, 1990, also revealed prescription drugs in the Pharmacy outside of the prescription department. After cursorily examining the premises, Gluck left the Pharmacy. He told Diaz that he would be paying a return visit the following day to speak with Haro and to conduct a more thorough inspection. He warned Diaz not to enter the prescription department and asked him to lock the doors leading into that area of the Pharmacy. Diaz indicated that he would comply. Later that day at around 5:00 p.m., following Glucks's departure, Haro went to the Pharmacy "to observe how [it] was functioning." As he had promised, Gluck returned to the Pharmacy on December 5, 1990. He was accompanied by another of the Department's investigators, as well as three HRS drug inspectors. The prescription department was closed and Haro was nowhere to be seen. Diaz was present and Gluck asked him whether Haro had reported to work that day. Diaz told Gluck that Haro had again taken the day off to take care of a personal matter. Gluck tried to open the door he had used the day before to enter the prescription department, but it was locked and Diaz claimed not to know where to find a key to unlock the door. With Diaz's permission, Gluck and one of the HRS drug inspectors, Cesar Arias, walked into a back storage room that was adjacent the prescription department (hereinafter referred to as the "storage room") to ascertain if there was another entrance to the prescription department. There they spotted an unlocked door that led to the prescription department. After obtaining Diaz's authorization, they pushed the door open. In so doing, they moved an appliance, that had been behind the door, out of the way. They then walked into the prescription department. While in the prescription department, Gluck and Arias noticed a doorway that was covered, but not completely, by a piece of paneling. They removed the piece of paneling and then walked into the room (hereinafter referred to as the "hidden room"). The December 5, 1990, inspection of the Pharmacy revealed the following: Of the approximately 2,000 containers on the shelves in the prescription department, approximately 200 contained expired pharmaceuticals. Expired pharmaceuticals that Haro had removed from the shelves were in boxes in the storage room. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which understated the quantity of pharmaceuticals in the container. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which inaccurately described the strength of the pharmaceuticals in the container. On the shelves in the prescription department were containers of pharmaceuticals to which samples, that had been removed from their original packaging, had been added. According to records in the prescription department, prescriptions had been filled on December 4, 1990. Prescriptions for controlled substances that had been filled by Haro within the past month were lacking the date the prescription had been filled, the patient's name and address, the dispensing pharmacist's initials and/or the prescribing physician's DEA registration number. A bottle of Uropol, which Haro had for his own personal use, was in the prescription department. Uropol is a foreign drug that has not been approved for use in the United States. Vials containing prescription drugs that had been dispensed by Jorge's Pharmacy, another local pharmacy, were in the hidden room, as well as in bags, ready for customer pick-up, in the storage area. These vials had labels prepared by Jorge's Pharmacy. References to Jorge's Pharmacy's appear- ing on the labels, however, had been "whited out" so as to make it appear that Jorge's Pharmacy's was not the dispensing pharmacy. Furthermore, some of these vials contained lesser quantities of drugs than indicated on their labels. As Diaz candidly admitted to the inspection team during the inspection, Jorge's Pharmacy had filled these prescriptions pursuant to an arrangement that it had with Diaz. These were Medicaid prescriptions. Jorge's Pharmacy was a participant in the Medicaid program. La Generosa had been suspended from the program and therefore, unlike Jorge's Pharmacy, was not able to fill Medicaid prescriptions. Wanting to keep his Medicaid customers, Diaz had devised and implemented a scheme that allowed him to continue to do business with these customers. He had his Medicaid customers present their prescriptions to him or Blanca Uzman, one of his subordinates, at a counter outside of the store's prescription department (hereinafter referred to as the "outside counter"). The prescriptions were thereafter taken to Jorge's Pharmacy, where they were filled. The labeled vials containing the dispensed drugs were then delivered to La Generosa, where they were ultimately picked up, at the outside counter, but not before an effort had been made to obliterate, by using white-out, all references to Jorge's Pharmacy appearing on the vials' labels. Although Haro knew of this scheme, he was in no way involved in it. A prescription balance and prescription weights were in the hidden room. Neither a copy of the laws and rules governing the practice of pharmacy, a negative formulary, nor a biennial inventory record of controlled substances were located by the inspection team, although these items were on the premises. Following the December 5, 1990, inspection of La Generosa, administrative charges were brought against both Haro and Rome. Subsequent inspections of the Pharmacy established that "everything was in proper order."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board, with respect to Case No. 91-6297, enter a final order finding Haro guilty of the violations alleged in Counts I, III, VIII, VIV, and XV of the Amended Complaint/Haro and disciplining him for having committed these violations by suspending his license for a period of 60 days, placing him on probation for a period of one year following the end of his suspension subject to such terms as the Board may specify, and requiring him to pay an administrative fine in the amount of $1,500.00, and, with respect to Case No. 92-0227, enter a final order finding Rome guilty of the violations alleged in Counts I, V, VII, IX, and XI of the Amended Complaint/Rome and disciplining it for having committed these violations by suspending its permit to operate La Generosa as a community pharmacy for a period of two years, placing it on probation for a period of one year following the end of its suspension subject to such terms as the Board may specify, and requiring it to pay an administrative fine in the amount of $2,500.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1993. STUART M. LERNER 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 27th day of September, 1993.
Findings Of Fact Petitioner, Kamran Khajeh-Noori, who does business as Khajeh-Noori Laboratory, transacts that business at 2742 North Florida Avenue, Tampa, Florida. Respondent, State of Florida, Department of Health and Rehabilitative Services, is an agency of State government whose principal business is at 1323 Winewood Boulevard, Tallahassee, Florida. The Department of Health and Rehabilitative Services has promulgated a Rule 10D-41.60, Florida Administrative Code, which allows the revocation, suspension, limitation, annulment or denial of renewal of the certification of various laboratories based upon certain stated reasons. In particular, the rule states: Denial or Revocation of Certification. A laboratory certification may be denied, revoked, suspended, limited, annulled or renewal denied for any or all of the following reasons: Making false statements on an application or on any document associated with certification. Demonstrating incompetence or making consistent errors in analyses. Permitting unauthorized personnel to perform analyses. Falsifying the results of analyses. Failure to employ approved labora- tory methodology in the performance of analyses required by the Act. Failure to properly maintain facilities and equipment. Failure to properly report analytical test results or to maintain required records of test results. Failure to participate success- fully in the DHRS performance evaluation and/or quality control program. Violating or aiding and abetting in the violation of any provision of these regulations or the rules promulgated here- under. The stated specific authority for this rule is Section 403.863, Florida Statutes, and the rule purports to implement that same provision of law. Section 403.863, Florida Statutes, is part of the Florida Safe Drinking Water Act. Petitioner, through his laboratory, was engaged in the business of analyzing water samples prior to the enactment of the Florida Safe Drinking Water Act. Following that enactment and the adoption of certification rules by the Department, he received a certificate from HRS to continue the operation of his water testing laboratory. In keeping with the various provisions found in Chapter 10D-41, Florida Administrative Code, the Department of Health and Rehabilitative Services has conducted surveys of the Khajeh-Noori Laboratory and subsequent to those surveys has filed an Administrative Complaint under the authority of Rule 10D-41.60, Florida Administrative Code. This Administrative Complaint has been the subject of a formal hearing in State of Florida, Department of Health and Rehabilitative Services v. Kamran Khajeh-Noori d/b/a Khajeh-Noori Laboratory, DOAH Case No. 81- 2979. That hearing was held on the same date as the present matter, that is August 11, 1982. The possible outcome of that proceeding might lead to the revocation, suspension, or annulment of the certification granted Khajeh-Noori Laboratory, thereby prohibiting the performance of those activities allowed by his certificate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: For sixty (60) days from service of the Final Order, the Respondent, Thomas Hearns, shall not have to institute that construction required by paragraph 3 below. However, within the sixty (60) days the Respondent shall obtain a firm purchase commitment from a qualified purchaser. A firm purchase commitment is either a signed contract of purchase or a signed contract to purchase between the Respondent and a qualified purchaser. A qualified purchaser is a person or other legal entity that the Petitioner and Polk County Health Department adjudge to be capable of taking over the water system, bringing it into compliance with Chapter 17-22, Florida Administrative Code, and thereafter keeping the system in compliance with Chapter 17-22, Florida Administrative Code. Upon obtaining a purchase commitment, the Respondent shall send a copy of the purchase commitment to the Department of Environmental Regulation and Polk County Health Department. Within twenty (20) days of receipt the Petitioner and the Polk County Health Department shall review the purchase commitment for its acceptability as a firm purchase commitment by a qualified purchaser. Written notice as to whether the Respondent has obtained a commitment which is a commitment by a qualified purchaser shall be given to the Respondent by the Petitioner. The Respondent, to the extent contained in this paragraph, waives his right and capacity to contract and specifically reserves unto the Petitioner the right to void any purchase commitment that is determined to be other than a firm purchase commitment from a qualified purchaser. Failure of the Respondent to obtain a firm purchase commitment within sixty (60) days of service of the Final Order on the Respondent will cause the times and measures for corrective action, contained in paragraph 3 below, to become effective as of the sixty-first (61st) day from the date of service of the Final Order on the Respondent. The corrective actions and the times for taking them are: Within thirty (30) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall install disinfection equipment into the Respondent's water system. The disinfection equipment must be capable of maintaining the degree of disinfection required by Section 17-22.106(3)(c), Florida Administrative Code. The required degree of disinfection shall thereafter be maintained throughout the water system at all times and the disinfection equipment shall be kept in continual operation. Sections 17- 22.106(3)(c) and 17-22.107(3)(a), Florida Administrative Code. Within fifteen (15) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall, by collecting and submitting two (2) samples for analysis, initiate the collection of water samples of the Respondent's water system and the Submission of the samples for microbiological analysis. Thereafter, the Respondent shall collect and submit for analysis two (2) compliance samples per month. Section 17-22.105(1)(d), Florida Administrative Code. Within fifteen (15) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall notify, by written notice to each customer, all customers of the Respondent's water system of the fact that the Respondent fails to perform microbiological monitoring. Section 17-22.112, Florida Administrative Code. Within fifteen (15) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall retain the services of a certified operator who shall thereafter operate, maintain and supervise the Respondent's water system. Section 17-22.107(3)(b), Florida Administrative Code. Within forty-five (45) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall commence, by the submission of a monthly operation report on the water system, the submission of monthly operation reports to the Department. Thereafter, such reports shall be submitted monthly. Section 17-22.111(2), Florida Administrative Code. Within thirty (30) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall commence, by the submission of the results of the analyses of the samples taken pursuant to subsection 3.B. above, the monthly submission of the results of analyses taken by the Respondent to fulfill his Section 17-22.105(1)(d), Florida Administrative Code, monitoring requirement. Thereafter, the Respondent shall submit monthly the results of compliance monitoring. Sections 17-22.107(3)(c) and 17-22.111(2), Florida Administrative Code. Within forty-five (45) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall submit "as-built" engineering plans of the water system, as well as an application for a construction permit. The construction permit shall contain plans and specifications for proposed construction which shall: (1) install a downopening sampling tap on the discharge side of the well pump, and (2) install a bypass and a drain on the system's pressure tank. Within forty-five (45) days of the sixtieth (60th) day from service of final orders in this case, the Respondent shall submit to the Department's Southwest District Office, Tampa, Florida, the sum of Two Hundred Fifty Dollars and Sixty-nine Cents ($250.69). The Petitioner waives payment of the costs of investigation in this case if the Respondent has a firm purchase commitment from a qualified purchaser within sixty (60) days of service of the Final Order on him, or the Respondent complies with the corrective measures and times stated in paragraph 3, AG, above. The Petitioner will place the Respondent in touch with the Department of Community Affairs and the Federal Farmers Home Administration within ten (10) days of service of the Final Order on the Respondent. Within fifteen (15) days of service of the Final Order, the Petitioner shall contact Imperial Polk County's Sam Robinson to urge the purchase of the water system. The Department shall also investigate whether it has funds which Imperial Polk County might obtain in order to purchase the water system. The Petitioner shall notify the Respondent of its investigation within fifteen (15) days of service of the final orders on the Respondent. Alteration of the Final Order may be accomplished by written amendment of the Final Order, signed by both the Petitioner and Respondent. The Petitioner reserves solely to itself the authority to determine whether the Final Order shall be amended due to good cause shown by the Respondent. Among other things, good cause may be delays caused the Respondent due to actions of others beyond his control. In order that the corrective measures stated in paragraph 3 above be accomplished within the stated times, it shall not be good cause for postponement of any of the corrective measures set forth in paragraph 3 above that the Respondent has filed an application for financing of the corrective measures at a time that does not allow time for processing the application prior to the sixty-first (61st) day from service of the Final Order on the Respondent. RECOMMENDED this 6th day of April, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Thomas Hearns Post Office Box 1916 Winter Haven, Florida 33880
Findings Of Fact PROVIDER received the Final Audit Letter that gave notice of PROVIDER’S right to an administrative hearing regarding the overpayment and fine. PROVIDER filed a petition requesting an informal administrative hearing, which was subsequently forwarded to DOAH for the purpose of conducting a formal administrative hearing. PROVIDER then caused the formal administrative hearing case to be closed. PROVIDER chose not to dispute the facts set forth in the Final Audit Letter dated April 23, 2010. The facts alleged in the Final Audit Letter are hereby deemed admitted. The Agency hereby adopts the facts as set forth in the Final Audit Letter, including the overpayment in the amount of six thousand five hundred and seventy-five dollars ($6,575.00) and the fine in the amount of one thousand dollars ($1,000.00). During the pendency of the administrative hearing, the Agency, pursuant to section 409.913(27), Florida Statutes, withheld medical reimbursement payments from PROVIDER.
Conclusions THIS CAUSE came before the undersigned for issuance of a Final Order on a Final Audit Letter dated April 23, 2010 (C.I. No. 10-1095-100). By way of the Final Audit Letter, the AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “Agency”), informed Respondent, FOOD WITH CARE, INC., (“PROVIDER”), that the Agency was seeking to recover an overpayment of six thousand, five hundred and seventy-five dollars ($6,575.00) and a fine in the amount of one thousand dollars ($1,000.00), for violations of Rule 59G-9.070(7)(e), Florida Administrative Code. The Final Audit Letter provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the findings. On or about May 17, 2010, PROVIDER filed a petition with the Agency requesting an informal administrative hearing. Because PROVIDER contended the underlying facts of the case, the informal hearing officer forwarded PROVIDER’S hearing request to the Division of Administrative Hearings (‘DOAH”) for a formal administrative hearing. On June 14, 2011, PROVIDER filed a Motion to Close File with DOAH, stating that a hearing on the matter was no longer required, and requesting that any hearings on the matter be cancelled and that the case be AHCA v. Food With Care, Inc. (DOAH #10-10213) Final Order - Page 1 of 4 Filed August 1, 2011 10:23 AM Division of Administrative Hearings closed, On June 14, 2011, DOAH issued an Order Closing File, and relinquished jurisdiction to the Agency.
