Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: By letter dated August 11, 1986, the Respondent advised the Petitioner that her application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, was denied. The letter provided that the application was denied because the Petitioner does "not have a B.S. degree required under Section 10D-41.68(3), Florida Administrative Code." By letter dated September 9, 1986, the Petitioner requested a formal administrative hearing. The Petitioner took and passed the proficiency examination for clinical laboratory technologists given by the U.S. Office of Health and Human Services (formerly Department of Health, Education and Welfare) in 1977. Based in part on the Petitioner's satisfactory grade on the federal examination, she was licensed in the State of Florida as a clinical laboratory technologist in microbiology, clinical chemistry, hematology and histology. The Petitioner has over six years of pertinent clinical laboratory experience. The Petitioner does not have a bachelor's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Charlotte Holton's application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, be DENIED. DONE AND ORDERED this 11th day of May, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4067 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by Petitioner Rejected as subordinate and/or unnecessary. Adopted in substance in Findings of Fact 1 and 2. Addressed in Conclusions of Law section. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 5. Rejected as argument. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 4. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as legal argument. Rejected as legal argument. COPIES FURNISHED: Ms. Charlotte Holton 4200 Northwest 76th Avenue Pompano Beach, Florida 33065 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue, Suite 790 Miami, Florida 33128 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0036970. Respondent worked at the Cruz Blanca Clinic from approximately February of 1984 through either October or November of 1985. During that time Respondent worked as a general practitioner and was also the medical director of the Cruz Blanca Clinic. As medical director, Respondent was responsible for the supervision and control of all medical practice at the clinic. Respondent's normal working hours at the Cruz Blanca Clinic were from approximately 8:00 or 8:30 in the morning until approximately 2:30 or 3:00 in the afternoon. During those working hours, Respondent was usually the only licensed medical doctor present on the premises of the Cruz Blanca Clinic. The patients who attended the Cruz Blanca Clinic paid a fee for the privilege of attending the clinic and receiving medical services. The monthly fee was between ten and fifteen dollars per family. Patients requiring general medical services attended the clinic during Respondent's working hours. During the afternoon hours, from approximately 2:00 p.m. until 5:30 p.m., certain medical specialists would see clinic patients by appointment. At all times material, Julio Diaz owned the Cruz Blanca Clinic. At all times material, Julio Diaz, Norma Rodriguez, and Magali Acosta were licensed to practice medicine in a foreign country, but they were not licensed to practice medicine in the state of Florida, nor were they licensed as physician's assistants in the state of Florida. Respondent knew that Diaz, Acosta, and Rodriguez were not licensed to practice medicine in the state of Florida. During 1984 and 1985 while Respondent was the medical director at the Cruz Blanca Clinic, Julio Diaz, Norma Rodriguez, and Magali Acosta frequently and regularly held themselves out as, and acted as, medical doctors or physicians at the Cruz Blanca Clinic. Specifically, they regularly saw patients, took medical histories, checked blood pressure, drew blood samples, took urine and fecal samples, and performed physical examinations. Julio Diaz and Norma Rodriguez went far beyond the routine tasks described above and were in total charge of the medical treatment of some of their patients. Patients with gynecological problems were usually assigned to Norma Rodriguez, pediatric patients were usually assigned to Magali Acosta, and Julio Diaz usually saw the general practice patients. Respondent knew that Diaz, Acosta, and Rodriguez were examining, treating, diagnosing, and prescribing for patients at the Cruz Blanca Clinic. Respondent also knew that at least some of the examining, treating, diagnosing, and prescribing activities of Diaz, Acosta, and Rodriguez were being done without Respondent's supervision. During 1984 and 1985, Maria Rodriguez was a frequent patient at the Cruz Blanca Clinic during the time periods when Respondent was the only licensed medical doctor on the premises of the clinic. On only one occasion Maria Rodriguez was seen by Respondent. On all of her other visits the only doctors', she saw were Julio Diaz or Norma Rodriguez. When Maria Rodriguez was being seen by Julio Diaz or Norma Rodriguez, there was no one present supervising either of the "doctors." Maria Rodriguez believed that Julio Diaz was a medical doctor and he treated her for back problems. Thereafter, Maria Rodriguez was usually seen by Norma Rodriguez, who she also believed to be a doctor. In 1985 Norma Rodriguez injected Maria Rodriguez as part of the treatment of the latter's blood pressure problems. On several occasions Maria Rodriguez saw both Julio Diaz and Norma Rodriguez filling out prescriptions, and on several occasions they both diagnosed and treated her. The prescriptions filled out by Julio Diaz and Norma Rodriguez were signed by Respondent. Barbara Socorro was another patient of the Cruz Blanca Clinic during 1984 and 1985. She was treated at the Clinic for such conditions as common colds, stomach flu, viruses, and gynecological problems. The only "doctor" who examined or treated Barbara Socorro at the Cruz Blanca Clinic was Norma Rodriguez. Norma Rodriguez performed at least one gynecological examination on Barbara Socorro at the Cruz Blanca Clinic. Norma Rodriguez wrote several prescriptions for Barbara Socorro. Barbara Socorro never saw Respondent at the Cruz Blanca clinic. Barbara Socorro believed that Norma Rodriguez was a medical doctor and was told by the receptionist at the Cruz Blanca Clinic that Norma Rodriguez was a gynecologist. Marisol Vilato was another patient of the Cruz Blanca Clinic who during 1984 and 1985 was seen several times for gynecological problems. The only "doctor" seen by Marisol Vilato was Norma Rodriguez. Norma Rodriguez examined Marisol Vilato, including internal gynecological examination; diagnosed and treated her condition; and filled out prescriptions for her. While employed as the medical director at the Cruz Blanca Clinic, Respondent frequently and regularly signed prescriptions filled out by Diaz, Acosta, and Rodriguez because as unlicensed doctors their signatures on prescriptions would not be honored by pharmacies. Without this aid and assistance by Respondent, it would not have been possible for Diaz, Acosta, and Rodriguez to prescribe for the patients at the Cruz Blanca Clinic.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medical Examiners enter a Final Order to the following effect: Dismissing the charges alleged in Counts, 2, 3, and 6 of the Administrative Complaint: Finding Respondent guilty of violations of Section 458.331(1)(g), (t), and (w)' Florida Statutes, as alleged in Counts 1, 4, and 5 of the Administrative Complaint, and Imposing on Respondent appropriate penalties authorized by Section 458.331(2), Florida Statutes. In determining the appropriate penalty to recommend, I have given particular consideration to the nature of the violations; to the fact that although unlicensed practice of medicine was permitted, there was no evidence of harm to any patient; and to the fact that Respondent appears to be an elderly man who is not in the best of health. With those considerations in mind, it is recommended that the Board's Final Order include the following specific penalties: (a) A So-day suspension of Respondent's license to practice medicine; |(b) A one-year period of probation to follow the suspension, with a condition of probation that Respondent work under the supervision of another licensed physician and that he attend continuing education courses specified by the Board with an emphasis on the legal duties and responsibilities of physicians; and (c) An administrative fine in the total amount of S. 00 DONE AND ORDERED this 28th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986 COPIES FURNISHED: Michael J Cohen, Esquire CO BN & MEE, P A 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Frank Diaz Silveira, Esquire DIAZ SILVEIRA 6 ASSOCIATES, P A 2153 Coral Way, Suite 607 Miami, Florida 33145 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by both of the parties. Proposed findings submitted by Petitioner Paragraphs 1, 2, 3, 4, and 5: These paragraphs are accepted. Paragraph 6: The first sentence of this paragraph is rejected as constituting commentary about conflicts in the evidence rather than a proposed finding of fact. The remainder of this paragraph is accepted in substance. Paragraph 7: This paragraph is accepted in substance. Paragraph 8: The first eight sentences of this paragraph are accepted in substance. The last sentence is rejected as argument rather than a proposed finding of fact. (The argument is a correct argument, but it is not a proposed finding.) Paragraphs 9 and 10: These paragraphs are accepted. Paragraph 11 and the five unnumbered paragraphs following paragraph 11: These paragraphs are rejected as primarily constituting arguments rather than proposed findings of fact. (These arguments are essentially correct, but are nevertheless arguments and do not belong in the findings of fact.) Paragraph 12: This paragraph is also rejected as constituting argument rather than proposed findings. Proposed findings submitted by Respondent This paragraph is rejected as constituting a proposed conclusion of law rather than a proposed finding of fact This paragraph is rejected as constituting summaries of testimony (some of which is conflicting) rather than proposed findings of fact. Counsel for all parties are reminded that summaries of testimony may be a useful technique to support an argument in favor of a particular proposed finding, but such summaries do not constitute proposed findings, especially when the summaries include conflicting testimony. The findings of fact in this Recommended Order contain specific findings regarding the activities engaged in by unlicensed physicians, which findings are based on competent substantial evidence and are consistent with the greater weight of the evidence. The first sentence of this paragraph is rejected as constituting a summary of a portion of the testimony rather than proposed finding of fact. The second sentence of this paragraph is rejected as constituting a summary of a portion of the evidence rather than a proposed finding of fact. Further, the details summarized for the most part relate to subordinate details that are irrelevant or unnecessary to the disposition of this case. This paragraph is rejected as constituting a summary of a portion of the evidence, or as constituting argument about the evidence, rather than a proposed finding of fact. Further, the factual assumptions implicit in this paragraph are contrary to the greater weight of the evidence. This paragraph is rejected as constituting argument instead of proposed findings of fact. This paragraph is rejected as constituting a summary of testimony rather than proposed findings of fact. Further the details summarized are subordinate and irrelevant or unnecessary details. This paragraph is rejected as constituting argument instead of proposed findings of fact. ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, PEDRO F. BERNAL, M.D., DPR CASE NOS. 0055322 DOAH CASE NO. 85-1758 Respondent. LICENSE NO. ME 0036970 /
Findings Of Fact At all times relevant thereto, respondent, Manuel M. Maralit, held medical doctor license number ME 0033337 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners. Maralit has been licensed as a medical doctor by the State of Florida since September 13, 1978. He has been a medical doctor since graduation from medical school in May, 1967. From January 1, 1983 through September 30, 1983, Maralit practiced medicine in Alachua County, Florida. During that period of time, he filed two unauthorized claims under the Florida Medicaid Program, each having an aggregate value of $200 or more in violation of Subsection 409.325(4)(a), Florida Statutes. He also received one unauthorized payment under the same program having an aggregate value of more than $200.00 in violation of Subsection 409.325(4)(c), Florida Statutes. After an information was filed by the State Attorney on December 13, 1983, Maralit pled guilty to the above three violations, and to a fourth charge of grand larceny. For this, he received twenty years probation, 2,000 hours of community service, a $15,000.00 fine to be paid within 12 months, and was required to make restitution of $2,398.51 to the Department of Health and Rehabilitative Services and $921.00 to the Florida National Bank. According to the official records of petitioner introduced into evidence, Dr. Maralit was subject to prior disciplinary action by the Medical Board in 1982 (DOAH Case No. 81-1367, Final Order entered January 4, 1982). At that time his license was suspended for thirty days, and was placed on probation for one year. The probationary period has long since expired. The violations in that proceeding are not similar in any respect to those charged in this case. There is no evidence as to any damage, physical or otherwise, to specific patients caused by respondent's conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts I and II of the administrative Complaint, and that his medical license be suspended for one year with six months' suspension stayed and his license be placed on three years probation. Count III should be dismissed. DONE and ORDERED this 4th day of December, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 4th day of December, 1985.
The Issue The issue is whether Respondent is guilty of failing to conform to the minimal standards of acceptable and prevailing nursing practice by testing positive for cannabinoids in a pre-employment drug screen, in violation of Section 464.018(1)(h), Florida Statutes, and, if so, what penalty Respondent should receive.
Findings Of Fact At all material times, Respondent has been licensed as a practical nurse, holding license number PN 0892481. Respondent has practiced 18 years as a licensed practical nurse without prior discipline. Respondent's license is active, although she is not currently employed as a nurse due to what appears to be a serious case of diabetes, which has necessitated the amputation of part of one of her legs. In August 1995, Respondent applied for a nursing job with The Pines of Sarasota. She was hired on August 24, 1995, and her first day of work was August 30, which was an orientation program that took place on a Wednesday. Respondent was hired to work 16 hours a week, consisting of weekends only. Her first regular day of work was September 2, 1995, which was a Saturday. Respondent reported to work that day and worked her regular shift. Respondent was dissatisfied with the working conditions. She complained that all of the other staff took off for a break and left her alone on the unit. It is unclear if Respondent worked, or was supposed to work, on September 3. However, she was due to work on September 9, but she did not show or call in. On September 11, Respondent mailed a short letter of resignation. The evidence is clear that The Pines required that Respondent take and pass a urine test for drugs. The evidence is vague and conflicting as to when Respondent took this test. Testifying by telephone due to a problem with the service of a witness subpoena, a technical director of the laboratory that conducted the urinalysis offered the only direct testimony on Petitioner's behalf concerning the urinalysis. Respondent offered the only direct testimony on her behalf concerning this matter. Petitioner's witness testified that the urine sample was collected on Wednesday, August 30, and analyzed the next day. However, he was not the person who collected the sample; he supervised technicians who did the actual work. Respondent testified that she went to the laboratory and gave the urine sample on Wednesday, September 6. Respondent's ability to cross examine Petitioner's witness from the laboratory was impeded by his presence by telephone, as was the strength of his testimony. He testified from some documents that counsel did not appear to have available to them. Petitioner was unable to authenticate and introduce into evidence various documents present at the hearing and purportedly involving the subject drug test. There are some unresolved issues concerning the urine test. First, no one at the laboratory checked any photo identification of Respondent prior to taking the sample or gave her a copy of the laboratory documentation. These omissions raise the possibility of confusion in identification of the subject and the test results. Second, the laboratory did not appear to report the results to Respondent or promptly to The Pines. The Pines and Respondent litigated an unemployment compensation case in November 1995, but no one mentioned the failed drug test. The Pines filed a complaint with Petitioner, which led to the investigation that led to this case, in January 1996. The apparent failure of the laboratory to notify promptly The Pines and Respondent of the positive results undermines the credibility of their handling of the sample and test results and effectively prevented Respondent from obtaining a retest of the sample or, if practical, a second test. It is more likely than not that Respondent had consumed marijuana and thus failed the urine test. However, for the reasons already stated above, Petitioner has failed to prove these material facts by clear and convincing evidence.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing the administrative complaint. DONE AND ENTERED this 7th day of July, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1998. COPIES FURNISHED: Craig A. McCarthy General Counsel's Office Medical Quality Assurance Allied Health Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Cathy L. Lucrezi Cathy L. Lucrezi, P.A. 2256 Heitman Street Fort Myers, Florida 33901 Angela T. Hall, Agency Clerk Department of Health Building 6, Room 136 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
Findings Of Fact The Petitioner is a registered Nurse, and she is registered with a national organization as a respiratory therapist. A respiratory therapist works with patients who have respiratory, spinal, lung, or drug abuse problems. One procedure used by such therapists to determine if a patient is breathing properly is an arterio blood gas test. The petitioner has performed thousands of much tests. Until the Respondent adopted rules pursuant to the Florida Clinical Laboratory Law, there was no requirement for licensure to perform arterio blood gas tests. There is now a special category for licensure as a laboratory technologist in a specialty called "Chemistry-Special" which would qualify an individual to perform such tests, but no other clinical laboratory procedures. The petitioner submitted an application for licensure in the "Chemistry-Special" specialty on September 29, 1977. She did not take the test required by the Respondent, and accordingly her license application has been denied.
The Issue Whether the petitions for formal administrative hearing filed by Petitioner in these consolidated cases should be dismissed as contended by Respondent? If not, whether Petitioner should be granted the relief sought in these petitions?
Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Petitioner is a Florida Medicaid provider. Its provider number is 027856400. Paragraph 8 of the provider agreement that it entered into with the Department provides that it and "the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations." The Department is the state agency that administers the Florida Medicaid program. The Department's Medicaid Program Integrity Unit audits and investigates claims for reimbursement submitted by Florida Medicaid providers. John M. Whiddon is Chief of the Unit. Ellen Williams is one of his subordinates. In November, 1991, Whiddon received a letter from the Director of the Auditor General's Fraud Control Unit. The body of the letter read as follows: The Florida Medicaid Fraud Control Unit is currently in the process of conducting a criminal investigation of [Petitioner]. Our investigation has established that there is a basis for criminal prosecution for the billing of services not rendered and for providing treatment that was not prescribed (there were no treatment plans). As of today's date the provider's YTD earnings are in excess of $444,000. I believe that a review of the claims submitted the last 90-120 days will indicate a high volume of the claims being false and that you may want to proceed administratively to stop the improper claims. Shortly after receiving this letter, Whiddon ordered that each of Petitioner's claims be subjected to prepayment review. On February 17, 1992, Petitioner filed with the Department his petition requesting an award of "damages in excess of $10,000.00." The petition contains four counts. Count I of the petition alleges that "[i]n refusing to reimburse [Petitioner] for services rendered, [the Department] has violated Section 409.266, et seq., Fla. Stat." Count II of the petition alleges that "[i]n refusing to reimburse [Petitioner] for services rendered and failing to notify [Petitioner] of [the Department's] intent to withhold any payment due [Petitioner], [the Department] has violated Rule 10C-7.060, et seq., Fla. [Admin. Code]." Count III of the petition alleges that "[b]y withholding monies due and owing to [Petitioner] for services rendered without prior notice to [Petitioner], in violation of its own rules and regulations, and failing to provide for any procedure for a post-deprivation hearing, [the Department] violated [Petitioner's] due process rights." Count IV of the petition alleges that "[the Department] has breached its agreement to reimburse [Petitioner] for services rendered." Each of the foregoing counts contained the following prayer for relief: WHEREFORE, Our Lady requests this Court enter judgment against HRS for compensatory damages, attorneys' fees, costs and interest and such other relief as the Court deems just and proper. On March 7, 1992, Petitioner received a letter from Whiddon, dated January 28, 1992. The body of the letter read in part as follows: In accordance with 42 CFR 455.23, the Department of Health and Rehabilitative Services is withholding payments for Medicaid claims submitted by Our Lady Health Care Services. Based on our review of a sample of your home health records for the period February 1, 1991-November 30, 1991, we find evidence of willful misrepresentation on your part. Your home health records revealed that: You billed for services for which there was not a valid treatment plan, and You billed for nursing and aide services that were not documented as having been provided. As stated in 42 CFR 455.23, this action is temporary and will not continue after: the department determines that there is insufficient evidence of willful misrepresentation by the provider; or legal proceedings related to the provider's alleged willful misrepresentation are completed. In accordance with 42 CFR 455.23, you have the right to submit written evidence for consideration by the department. If you have such evidence, please send it to Ms. Ellen D. Williams, 2002 Old St. Augustine Road, Suite B-10, Tallahassee, Florida 32301. Pursuant to Section 120.57, Florida Statutes (F.S.) and Rule Section 10- 2.056, Florida Administrative Code (F.A.C.) you may request either a formal or informal hearing on the department's action. Your request for such hearing must be received by the department within 30 days of the date you received this letter. A request for informal hearing must be in writing and a request for formal hearing must be in the form of a petition in compliance with Rule Section 28-5.201, F.A.C. Either request must be substantive and state clearly the specific actions to which you object and why you object to them. . . . The purpose of either a formal or informal hearing is to determine whether the action taken in this letter is within the authority of the Department of Health and Rehabilitative Services and in accordance with the department's applicable rules and policies. . . . If a hearing request is not received within 30 days from the date of receipt of this letter, the right to such hearing is waived. On March 19, 1992, Petitioner filed a petition with the Department requesting a formal hearing on the matter. On June 4, 1992, Whiddon sent Petitioner a letter. The body of the letter read as follows: Please be advised that this office has concluded its investigation of Our Lady Health Services, pursuant to 42 CFR 455.23. Based upon this investigation, your claims are now pended for medical review pursuant to Section 409.913(2), Florida Statutes. Please forward copies of all supporting documentation for those claims which are now in pend status. Attached hereto are the claims which are the subject of this review. The supporting documentation must be received by this office within 30 days of receipt of this letter. If you have any questions, please contact Ms. Ellen Williams at (904) 488- 3588. As of June 8, 1992, the date of the final hearing in these cases, the Department had not made any official determination regarding overpayments made to Petitioner, nor had it decided to pay or deny the pended claims. These matters were still under review and investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the petitions filed by Petitioner in these consolidated cases. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4 day of August, 1992. 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 4 day August, 1992.
