Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10158 filed by North Florida Regional Medical Center, Inc. (“NFRMC”). 1. NFRMC filed a CON application which sought the establishment of a 24-bed comprehensive medical rehabilitation unit within its hospital located in Alachua County, Florida, Service District 3. The Agency denied NFRMC’s CON application 10158. ; 1 Filed November 4, 2013 11:11 AM Division of Administrative Hearings 2. NFRMC filed a petition for formal hearing challenging the Agency’s denial of CON application number 10158. 3. Shands Teaching Hospital and Clinics, Inc. d/b/a Shands Rehab Hospital, filed a petition for formal hearing in support of the Agency’s denial of NFRMC’s CON application 10158. 4. NFERMC has since voluntarily dismissed its petition for formal hearing. 5. Based upon the voluntary dismissal, the Division of Administrative Hearings entered an Order Closing Files and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of NFRMC’s CON application 10158 is UPHELD. ORDERED in Tallahassee, Florida on this DD day of Octet. 2013. cbc Peele Elizabeth Dudek, Secretary Agency for Health Care Administration _NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this final order is entitled to judicial review. which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f "__ day of Nove~ hes _, 2013. Richard J. Shoop, Agency Cler| Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for NFRMC (U.S. Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration {Electronic Mail), F. Philip Blank, Esquire Blank & Meehan, P.A. 204 South Monroe Strect Tallahassee, Florida 32301 Counsel for Shands Rehab Hospital (U.S. Mail) we
Conclusions Having reviewed the Amended Administrative Complaint ant the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and the Administrative Complaint and Election of Rights forms to the Respondent. (Composite Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $18,500.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed April 17, 2014 3:13 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this_ Z@ day of Cort , 2014. Elizabeth Dudxk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct gps of this Final Order was served on the below-named persons by the method designated on this ik. day of / , 2014. a ay X\ OOP, Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting ~ | Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Alba M. Rodriguez, Senior Attorney Peter A. Lewis, Esq. Office of the General Counsel Law offices of Agency for Health Care Administration Peter A. Lewis, P.L. (Electronic Mail) 3023 North Shannon Lakes Drive - Suite 202 Tallahassee, Florida 32309 (U.S. Mail) Cathy M. Sellers Administrative Law Judge [Division of Administrative Hearings (Electronic Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2012011203 ; v. ISLF WESTCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. AMENDED ADMINISTRATIVE COMPLAINT" COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this Amended Administrative Complaint against ISLF Westchester of Sunrise, LLC d/b/a Westchester of Sunrise (hereinafter “Westchester of Sunrise”), pursuant to Chapter 429, Part I, Chapter 408, Part Il, and Section 120.60, Florida Statutes (2011), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $5,000.00 pursuant to Sections 429.14 and 429.19, Florida Statutes (2011), for the protection of public health, safety and welfare, and to impose a survey fee in the amount of $500.00 pursuant to Section 429.19(2)(c) and 429.19(7), Florida Statutes (2011). L The Amended Administrative Complaint is being issued to reflect the revised sanctions imposed by the Agency. Coellae TE EXHIBIT 1 JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and Chapter 28-106, Florida Administrative Code (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2011). PARTIES 4. AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Chapter 408, Part II, Florida Statutes (2011), and Chapter 58A-5 Florida Administrative Code (2011). 5. Westchester of Sunrise operates a 150-bed assisted living facility located at 9701 W. Oakland Park Blvd., Sunrise, Florida 33351. Westchester of Sunrise is licensed as an assisted living facility under license number 7440. Westchester of Sunrise was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes, COUNT I WESTCHESTER OF SUNRISE FAILED TO ENSURE RESIDENTS LIVE IN A SAFE ENVIRONMENT SECTION 429.28, FLORIDA STATUTES RULE 58A-5.0182(6), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE — FACILITY PROCEDURES STANDARDS) CLASS If VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Westchester of Sunrise was cited with one (1) Class II deficiency as the result of a revisit survey conducted on Aril 2, 2012. 8. Based on observation, record review, and interview, it was determined that the facility failed to ensure residents live in a safe and decent living environment and with due recognition of personal dignity, for 1 resident. (Resident #1) The findings include the following. 9. During an interview on 4/2/12 at 10:30 AM with Resident #1, the resident's room was observed in disarray. Empty food containers were on the resident's side table beside her nebulizer, food was in the draws of the wall unit, and in a box on the table. The resident's clothes were hanging on rods in broken boxes in the corner of the room. Four unidentified pills in a plastic bag were noted on the bedside table, and an empty insulin bottle and 4 empty pill bottles on the counter in the bathroom. The floor in the room was also soiled. 10. The resident stated she felt like nobody likes her, staff is mean, and nobody ever comes to check on her. The resident also stated she is missing medication, the aides don't shower her, and she feels like "the staff are mad at me". Then the resident began crying. 11. At 10:35 AM on 4/2/12, the call light was tested and pressed by the surveyor with the facility manager present. Fifteen minutes later, at 10:45 AM, the call light was answered. The call light was answered by a med tech, who stated nobody was in the medication room when the light went off so they did not see it. 12. During an interview on 4/2/12 at 11:40 AM with the 2 facility med techs, they stated resident #1 does not have any home health services and self-administers their medications. The med techs also stated they did not store any of the resident's medications and they should all be kept in her room. At that time observation was made of the call light system which is located inside the first floor medication room/nurse station. If no staff is present in this room, there is no way to know if a resident activates the call system. 13. A review of resident #1's record revealed an admission date of 1/31/11 and a diagnosis to include diabetes, renal insufficiency, and asthma. The AHCA form 1823 dated 1/26/11 documents the residents need for assistance with medications. The AHCA form 1823 dated 2/17/12 documents the resident's need for assistance with bathing and need for help taking their medications. The form did not document if the resident needs assistance with self- administration or medication administration. 14. The resident's medication observation record (MOR) for February through April 2012 was reviewed and included the following medications: Lantus 100 units/ml vial inject sub- Q 25 units 3 times a day, "Home Health Care". Iprat-Albut .5-3(2.5) mg use 1 vial via nebulizer twice daily. Wellbutrin XL 150 mg 1 tablet daily. Glipizide 10 mg 1 tablet daily. Singulair 10mg 1 tablet daily. Bupropion hel 150mg 1 tablet twice daily. 15. | The MOR's were blank. The facility did not document resident #1 had refused or received their medications as ordered by the physician for 14 months. A plan of care for skilled services to administer the resident's insulin was requested as well as the home health record. The facility manager stated the resident does not receive home health services and the facility has not been monitoring the resident's diabetes. 16. Further review of the record did not contain physician's orders for the resident to self-administer any medications, or documentation the resident was being assisted with bathing. There was no evidence the facility notified the physician with any concerns. 17. During an interview on 4/2/12 at 2:40 PM with the facility manger and Resident #1 in their room, the resident stated she gives herself the insulin 2 or 3 times a day depending on what she eats and does not check her glucose levels. At that time observation was made of 2 bottles of Lantus insulin in a plastic bag in the resident's refrigerator. The resident also stated she was missing medications, and needed to get to the bank because she did not have the money for the copayments. She reported the facility does not get her medications and was not in possession of any of the above listed medications. 18. During an interview on 4/2/12 at 4:00 PM with the facility manager and nurse consultant to review resident #1's record, it was confirmed the facility does not have a physicians order for resident #1 to self administer their medications. It was also confirmed the facility does not supply or store any of resident #1's medications. The facility could not provide documentation resident #1 had received any of their physician ordered medications from 2/1/11 through 4/2/12 or home health services as ordered by the physician for diabetic management. This is an uncorrected tag from survey on 12/21/11. 19. Based on the foregoing facts, Westchester of Sunrise violated Section 429.28 Florida Statutes, and Rule 58A-5.0182(6), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $5,000.00. SURVEY FEE Pursuant to Section 429,19(7), Florida Statues (2011), AHCA may assess a survey fee in the amount of $500.00 to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Westchester of Sunrise. 2. Assess an administrative fine of $5,000.00 against Westchester of Sunrise on for the violation cited above. 3. Assess a survey fee of $500.00 against Westchester of Sunrise for the violation cited above. 4. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 5. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Ti allahassee, Florida 32308. Alba M. ee Bs i Fla. Bar No.: 0880175 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53” Street Suite 300 Miami, Florida 33166 305-718-5906 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. — Suite 500 Delray Beach, Florida 33484 (U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail palewis@petelewislaw.com, Peter A. Lewis, Esq., Attorney for Respondent, 3023 N. Shannon Lakes Drive, Suite 101, Tallahassee, Florida 32309 on this 13" day of February, 2014. Alba M. 2 Rediaatae STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: ISLF Westchester of Sunrise, LLC d/b/a AHCA No.: 2012011203 Westchester of Sunrise ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) | I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3) ___—=i dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Floriaa Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) Thereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2012001196 Return Receipt Requested: v. 7009 0080 0000 0586 7599 ISLF-WESTHCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW State of Florida, Agency for Health Care Administration (“AHCA”), by and through the undersigned counsel, and files this administrative complaint against ISLF-Westchester of Sunrise LLC d/b/a Westchester of Sunrise (hereinafter “Westchester of Sunrise”), pursuant to Chapter 429, Part I, and Section 120.60, Florida Statutes (2011), and alleges: NATURE OF THE ACTION 1. This is an action to impose an administrative fine of $13,000.00 pursuant to. Sections 429.14 and 429.19, Florida Statutes (2011), for the protection of public health, safety and welfare JURISDICTION AND VENUE 2. This Court has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and Chapter 28-106, Florida Administrative Code (2011). 3. Venue lies pursuant to Rule 28-106.207, Florida Administrative Code (2011). PARTIES 4, AHCA is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing assisted living facilities pursuant to Chapter 429, Part I, Florida Statutes (2011), and Chapter 58A-5 Florida Administrative Code (2011). 5. Westchester of Sunrise operates a 150-bed assisted living facility located at 9701 W. Oakland Park Blvd., Sunrise, Florida 33351. Westchester of Sunrise is licensed as an assisted living facility under license number 7440. Westchester of Sunrise was at all times material hereto a licensed facility under the licensing authority of AHCA and was required to comply with all applicable rules and statutes. COUNT I WESTCHESTER OF SUNRISE FAILED TO PROVIDE PERSONAL SUPERVISION 1 DAILY OBSERVATION, AND GENERAL AWARENESS OF RESIDENT’ S WHEREABOUTS AND SAFETY WHICH RESULTED IN DEATH. RULE 58A~5.0182(1), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE SUPERVISION STANDARDS) CLASS I VIOLATION 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. Westchester of Sunrise was cited with two (2) Class I deficiencies and one (1) Class IT deficiency as the result of a complaint investigation survey that was conducted on December 21, 2011. 8. A complaint investigation survey was conducted on December 21, 2011. Based on record review and interview, it was determined that the facility failed to provide personal supervision, daily observation, and general awareness of a resident's whereabouts and safety, which resulted in death for one out of four sampled residents (resident #3). The findings include the following. 9. A review of the adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered on 11/11/11 unresponsive on the floor in a’ vacant room on the floor where he resided. During an interview on 12/21/11 at 2:45 PM with the Director of Nurses (DON) and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. 10. The risk manager also reviewed documentation from staff reporting resident #3 did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident's family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation, the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. The resident was discovered on 11/11/11 at approximately 12:20 PM in a vacant room across the hall from their room. 11. In interview on 12/21/11 at 3:45 PM the DON, risk manager, and administrator confirmed the facility does not have policies regarding resident supervision or resident safety related to vacant rooms. 12. A review on 1/13/11 of the police investigation dated 11/11/11 revealed a sworn statement taken from facility staff documenting staff was aware the resident liked to walk and was prone to falling. It was also documented that "No employees attempted CPR or to free him from his walker, nor. did any persons to her knowledge check for breathing or a pulse until the Sunrise FD arrived and performed their assessment." "It appears as if the decedent was confused...this was not the first time that the decedent wandered into another room thinking that is was his. No signs of forced entry, however, it appeared as if the decedent was possibly struggling to keep his balance thus knocking over some furniture." 13. A review of the medical examiner's report dated 11/12/11 identified the injury description as the decedent’s neck became caught in the walker and the cause of death as Asphyxia due to Cervical Compression. 14. Based on the foregoing facts, Westchester of Sunrise violated Rule 58A-5.0182(1), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $6,000.00. COUNT II WESTCHESTER OF SUNRISE FAILED TO ENSURE RESIDENTS LIVED IN A SAFE ENVIRONMENT. SECTION 429.28, FLORIDA STATUTES RULE 58A-5.0182(6), FLORIDA ADMINISTRATIVE CODE (RESIDENT CARE RIGHTS & FACILITY PROCEDURES STANDARDS) CLASS I VIOLATION 15. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 16. A complaint investigation survey was conducted on December 21, 2011. Based on observation, record review, and interview, it was determined that the facility failed to ensure residents live in a safe environment, free from neglect which resulted in a death of a resident, for 1 of 4 sampled residents (Resident #3). The findings include the following. 17. Resident #3 was admitted to the facility on 9/24/11 with a diagnosis to include depression, anxiety, and he osteoporosis. A review of the AHCA form 1823 dated 9/15/1 documented the resident ambulates independently with a walker. A review of the facility resident summary sheet dated 9/24/11 documents the resident's need for partial assistance with a walker while ambulating. 18. Continued review revealed a physician order dated 11/9/11 for Tylenol 650 mg daily three times a day and a rib series "dx: S/P Fall" (diagnosis: status/post fall). Further review of the resident's record revealed no documentation regarding a fall. 19. A review of the medication observation record (MOR) documented resident #3 began taking Tylenol 325 mg 2 tabs three times a day on 11/10/11. During an interview on 12/21/11 at 11:30 AM with the risk manager, Director of Nurses (DON) and administrator, the facility was unable to determine when the resident had a fall. 20. During an interview on 12/21/11 at 12:00 PM with the physician and the physician assistant, who wrote the order on 11/9/11, she stated the resident was complaining of rib pain "he said he had fallen but did not say when". The physician stated she reviewed an old X-ray from a left rib fracture but since the resident was complaining of right rib pain and has a history of falls she ordered the rib series. 21. A review of the facility's adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered unresponsive on the floor in a vacant room. During an interview on 12/21/11 at 2:45 PM with the DON and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. The DON stated the door to vacant rooms should always be locked. During the interview, the maintenance director confirmed the facility had not done any work in the room between 10/3/11 & 11/11/11. The facility did not have a policy related to resident supervision or securing/monitoring vacant rooms. 22. The risk manager also reviewed documentation from staff reporting the resident did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident’s family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. The resident was discovered on 11/11/11 at approximately 12:20 PM in a vacant room across the hall from their room. 23. During the interview at 3:45 PM on 12/21/11, the risk manager confirmed the room was vacant and stated the headboard of the bed was not attached to the wall, the bed was falling off the frame, and the resident was found unresponsive on the floor beside the bed with their head entrapped between the bars of the walker. A telephone interview on 12/21/11 with the medical examiner, revealed the cause of death as Asphyxia due to Cervical Compression. 24. Based on the foregoing facts, Westchester of Sunrise violated Section 429.28, Florida Statutes, and Rule 58A- 5.0182(6), Florida Administrative Code, herein classified as a Class I violation, which warrants an assessed fine of $6,000.00. COUNT III WESTCHESTER OF SUNRISE FAILED TO IMPLEMENT THEIR ELOPEMENT RESPONSE POLICIES AND PROCEDURES. RULE 58A-5.0182(8), FLORIDA ADMINISTRATIVE CODE (ELOPEMENT PROCEDURE STANDARDS) CLASS II VIOLATION 25. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 26. A complaint investigation survey was conducted on December 21, 2011. Based on record review and interview, it was determined the facility failed to implement their elopement response policy and procedure for 1 of 4 sampled residents (resident #3). The findings include the following. 27. A review of the adverse incident reports identified Resident #3 as an alert and oriented resident, who was discovered on 11/11/11 unresponsive on the floor in a vacant room on the floor where he resided at approximately 12:20 PM. During an interview on 12/21/11 at 2:45 PM with the Director of Nurses (DON) and risk manager, it was determined Resident #3 was found in a room that had been vacant since 10/3/11. 28. Based on record review with the risk manager, the facility had documentation from staff reporting resident #3 did not come down for morning medications or breakfast on 11/11/11. Continued review noted the facility contacted the resident’s family to ask if they had taken the resident from the facility. There is no evidence the facility implemented their elopement protocol. According to the facility documentation the last time a staff member saw resident #3 was 11/10/11 at 9:00 PM. 29. Based on the foregoing facts, Westchester of Sunrise violated Rule 58A-5.0182(8), Florida Administrative Code, herein classified as a Class II violation, which warrants an assessed fine of $1,000.00. CLAIM FOR RELIEF WHEREFORE, the Agency requests the Court to order the following relief: 1. Enter a judgment in favor of the Agency for Health Care Administration against Westchester of Sunrise on Counts I, II, and III. 2. Assess an administrative fine of $13,000.00 against Westchester of Sunrise on Counts I, II, and TII for the violations cited above. 3. Assess costs related to the investigation and prosecution of this matter, if the Court finds costs applicable. 4. Grant such other relief as this Court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes (2011). Specific options for administrative action are set out in the attached Election of Rights. All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, MS #3, Tallahassee, Florida 32308. 10 RESPONDENT IS FURTHER NOTIFIED THAT THE FAILURE TO RECEIVE A REQUEST FOR A HEARING WITHIN TWENTY-ONE (21) DAYS OF RECEIPT OF THIS COMPLAINT WILL RESULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. If YOU WANT TO HIRE AN ATTORNEY, YOU HAVE THE RIGHT TO BE REPRESENTED BY AN ATTORNEY IN THIS MATTER Cewas mr. Races Alba M. Rodriguez} Esqa Fla. Bar No.: 0880175 Assistant General Counsel Agency for Health Care Administration 8333 N.W. 53%° Street Suite 300 Miami, Florida 33166 Copies furnished to: Arlene Mayo-Davis Field Office Manager Agency for Health Care Administration 5150 Linton Blvd. ~ Suite 500 Delray Beach, Florida 33484 (U.S. Mail) 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail, Return Receipt Requested to Gary Stephen Solomons, Administrator, Westchester of Sunrise, 9701 W. Oakland Park Blvd., Sunrise, Florida 33351 on this i2** aay of Opts , 2013. Alba M. ee ye" Zz ms 12 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: ISLF-Westchester of Sunrise, LLC d/b/a AHCA No.: 2012001196 Westchester of Sunrise ELECTION OF RIGHTS This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter 120, Florida Statutes (2006) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive mny right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___I dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28- 106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. ___Fax No. Email(optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Dates Print Name: Title: Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, AHCA No. 2012001196 Petitioner, DOAH No. 13-2452 vs. AHCA No. 2012011203 DOAH No. 13-3182 ISLF WESTCHESTER OF SUNRISE, LLC d/b/a WESTCHESTER OF SUNRISE, Respondent. SETTLEMENT AGREEMENT Petitioner, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”, through its undersigned representatives, and Respondent, ISLF Westchester of Sunrise, LLC d/b/a Westchester of Sunrise (hereinafter “Respondent”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Respondent is an Assisted Living Facility, licensed pursuant to Chapters 408, Part I], and 429, Part I, Florida Statutes, and Chapter 38A-5, Florida Administrative Code: and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Respondent, pursuant to Chapter 429, Part I, Florida Statutes; and WHEREAS, the Agency served Respondent with an administrative complaint on or about May 21. 2013, (on case #2012001 196), notifying the Respondent of its intent to impose adniinistrative fines in the amount of $13,000.00; and an amended administrative complaint on EXHIBIT 2 or about February 14, 2014, notifying the Respondent of its intent to impose administrative fines in the amount of 5,000.00, and a survey fee in. the amount of $500.00; and WHEREAS, Respondent requested a formal administrative proceeding by selecting Option 3 on the Election of Rights form: and WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding: and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: L. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Respondent agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120,68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, Respondent agrees to pay $18,000.00 in administrative fines, and a survey fee in the amount of $500.00 to the Agency within thirty (30) days of the entry of the Final Order. 5. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. ba 6. By executing this Agreement, Respondent neither admits nor denies, and the Agency asserts the validity of the allegations raised in the administrative complaint referenced herein. 7. No agreement made herein shall preclude the Agency from using the deficiencies from the surveys identified in the administrative complaint in any decision regarding licensure of Respondent, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance. The Agency is not precluded from using the subject events for any purpose. within the jurisdiction of the Agency. In such event, however, the Facility or its assigns or successors will be provided hearing rights pursuant to Chapter 120 to challenge the allegations made in this case. Further, Respondent acknowledges and agrees that this Agreement shall not preclude or estop any other federal. state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part. the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Respondent's Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney's fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Respondent for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attomeys of and from all claims. demands, actions, causes of action. suits, damages, losses, and expenses, of any and every nature whatsoever. arising out of or in any way related to this matter and the Agency’s actions, including. but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. by or on behalf of Respondent or related facilities. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Respondent was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule $9G-9.070, Florida Administrative Code. 14. Respondent agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Respondent in the Final Order, or any portion thereof, owed by Respondent to the Agency ftom any present or future funds owed to Respondent by the Agency, and that the Agency shall hold a lien against present and future funds owed to Respondent by the Agency for said amounts until paid. 1S. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. 16. This. Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18... This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. Molly McKinytry Sheryl Adminisyrator Deputy Segrefary: Westchester of Sunrise Agency for Health Care Administration 9701 W. Oakland-Park Boulevard 2727 Mahan Drive, Bldg #1 Sunrise, Florida 33351 Tallahassee, Florida 32308 DATED: _&@ = 24-/f Stuart Williams, General Counsel Alba M. ante é q 4e Florida Bar No. 670731 Assistant General Counsel Agency for Health Care Administration 8333 NW 53” Street, Suite 300 2727 Mahan Drive, Mail Stop #3 Miami, Florida 33166 Tallahassee. Florida 32308 DATED: 3/3 6 / Ly DATED: —_ Péter A. Lewis, Esquire 2012 North Shanon Lakes Drive Suite 101 Tallahassee, Florida 323090 DATED: 3° 73-42! te
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure as a physician by endorsement.
Findings Of Fact Petitioner is a 36-year-old physician who currently resides in New York City, New York. Petitioner filed the instant application, seeking to be licensed by endorsement as a physician in Florida on June 17, 2003. With her application, Petitioner provided Respondent with all the fees that were necessary to process the application. She also provided a required fingerprint card. Petitioner graduated from high school at The Spence School in New York City, New York, in 1986. She graduated from college at Brown University in Providence, Rhode Island, in 1990. Petitioner attended medical school at The Albert Einstein College of Medicine of Yeshiva University (AECM) in the Bronx, New York. While Petitioner was a student at AECM, she became involved in a personal relationship with a male colleague, another medical student. In December 1994, AECM charged Petitioner with student misconduct involving the termination of the relationship with the male colleague and suspended her from medical school. On February 8, 1995, the Supreme Court of the State of New York, in and for Bronx County, ordered AECM to reinstate Petitioner as a student. The Court concluded that AECM, in accordance with its procedures and after a new hearing, could determine in June 1995 whether Petitioner should be permitted to graduate in light of the events of December 1994 and Petitioner's emotional stability in June 1995. Petitioner graduated from AECM in 1995 with special distinction for research in obstetrics and gynecology. In June 1996, Petitioner successfully completed a year of post-graduate medical training in internal medicine at Yale- New Haven Hospital, which was affiliated with Yale University School of Medicine. During the course of her year at Yale University, Petitioner decided to specialize in obstetrics and gynecology instead of internal medicine. In June 1998, Petitioner completed two years of training in obstetrics and gynecology at the New York City Health and Hospitals Corporation, Lincoln Medical and Mental Health Center (Lincoln Hospital). During the first year, Lincoln Hospital was affiliated with the New York Medical College, Medical Education Consortium. During the second year, Lincoln Hospital was affiliated with the Joan and Sanford I. Weill Medical College of Cornell University. While working as a resident at Lincoln Hospital, Petitioner became involved in a personal relationship with a boyfriend. On September 8, 1996, Petitioner had a heated argument with the boyfriend on a New York City street that led to her arrest on charges of harassment in the second degree and aggravated harassment in the second degree. Subsequently, the criminal charges were dismissed and the court records were sealed in June 2000. Petitioner subsequently married a physician with a practice in New Jersey. Because her husband was practicing medicine in New Jersey, Petitioner transferred to the University of Medicine and Dentistry of New Jersey, Robert Wood Johnson Medical School (UMDNJ), for her third year of training in obstetrics and gynecology. At UMDNJ, one of Petitioner's supervisors questioned whether she had completed all the goals for a third-year resident. UMDNJ also advised Petitioner that it would not have a fourth-year position for her to fill. As a result of these issues, Petitioner was placed in a remediation program so that the faculty could properly evaluate Petitioner's performance. Petitioner had a "personality conflict" with the chairman of UMDNJ's obstetrics and gynecology department, Dr. Robert Knupple, who wanted her to repeat her third-year training. According to Petitioner, the personality conflict was due in part to her tardiness and schedule changes. Despite these problems, Petitioner completed her training at UMDNJ in June 1999. Between September 1993 and May 1998, Petitioner successfully completed the United States Licensing Examination. She completed Step I in two attempts, Step II in two attempts, and Step III on her first attempt. Petitioner was licensed to practice medicine in the State of New York in June 1999. At the time of the hearing in the instant case, Petitioner's New York medical license was valid and no formal charges had been filed against Petitioner by the New York State Department of Health, Office of Professional Medical Conduct. Petitioner subsequently transferred to St. Michael's Medical Center (St. Michael's), which was affiliated with Seton Hall University, School of Graduate Medical Education (Seton Hall). Petitioner's marriage was dissolving while she was working as Chief Resident in obstetrics and gynecology at St. Michael's. Her ex-husband's sister worked in St. Michael's emergency room, resulting in personal difficulties that caused Petitioner to become isolated and withdrawn. The circumstances of Petitioner's marital problems had an adverse impact on her relationship with the chairman and the staff of her department at St. Michael's/Seton Hall. The chairman ultimately referred Petitioner to the Physicians' Health Program of the Medical Society of New Jersey for a psychiatric evaluation. The evaluation found Petitioner to be free of any DSM-IV diagnosis for psychoactive substance use disorder and psychiatric diagnosis. Petitioner completed her work at Seton Hall on June 30, 2000. Sometime during 2000, Petitioner applied for a medical license in Florida. During the application process, Respondent's staff requested the chairmen or program directors of Lincoln Hospital's, UMDNJ's, and St. Michael's departments of obstetrics and gynecology to provide evaluations of Petitioner. In June 2000, the Lincoln Hospital evaluation rated Petitioner as "poor" in regard to her professional relationship with colleagues. Lincoln Hospital's overall evaluation recommended Petitioner as qualified and competent. In July 2000, UMDNJ provided an evaluation, rating Petitioner as "poor" in the following areas: (a) professional relationships with colleagues and teaching staff; (b) professional character as it related to diagnostic/clinical ability and fitness for clinical practice; and (c) personal character as it related to motivation, initiative, responsibility, and integrity. In regard to an overall evaluation, UMDNJ recommended Petitioner with some reservation. Petitioner's department chairman at St. Michael's/ Seton Hall initially filled out a form recommending her with reservation. After Petitioner underwent the two-day psychiatric evaluation, the chairman recommended Petitioner without reservation. In processing Petitioner's 2000 application, Respondent's staff discovered information relating to Petitioner's arrest during the time that Petitioner was training at Lincoln Hospital. Petitioner had not disclosed the 1996 arrest record because she thought all records related to the alleged incident with her then boyfriend were sealed. Petitioner subsequently withdrew her application for medical licensure in Florida. In October 2000, Petitioner accepted a faculty position with Columbia University, College of Physicians & Surgeons (Columbia University). Because Columbia University was affiliated with Harlem Hospital Center (Harlem Hospital), Petitioner was appointed to its medical staff as an attending physician. Petitioner's duties included academic and clinical responsibilities. At Harlem Hospital, Petitioner ran the rotation program for physician's assistant students. She worked in the hospital's labor and delivery unit and performed surgeries such as Caesarean sections. She also took care of patients on the gynecology floor. Harlem Hospital operates several outpatient clinics. Petitioner worked at one of the clinics, where she saw patients and performed some medical procedures. While Petitioner was working at Harlem Hospital, she enrolled in a two-year graduate program in public health at Columbia University. Petitioner's schedule at Harlem Hospital was arranged so that she could attend graduate classes. She received the degree of Masters in Public Health in March 2004. Columbia University contracted with Harlem Hospital to provide it with medical services. At all times relevant here, Dr. Stephen Matseoane was either the Director of Service or the Chairman of the Obstetric and Gynecology Department providing the contracted services. In May or June of 2002, Petitioner applied for a faculty position at Long Island College Hospital (LICH). On June 24, 2002, Petitioner and Dr. Barbara Lanzara scrubbed on a cesarean section. As a result of a complication, the patient began bleeding excessively. Petitioner was not feeling well and left the operating room to get some water and to call Dr. Matseoane for assistance. Petitioner drank three cups of water while she waited for Dr. Matseaone to return her call. She then returned to the operating room. A memorandum dated July 11, 2002, from Dr. Matseoane to Petitioner stated as follows: On June 25, 2002, you left the operating room while a cesarean section was proceeding and Dr. Lanzara, the principal surgeon was left unassisted. Your explanation that you felt "sick" because of heat in the operating room is unacceptable. The patient was bleeding excessively and Dr. Lanzara needed your continuing assistance until further help became available. Leaving the operating room especially in the presence of complications is a callous disregarad [sic] for the patient's safety and will not be tolerated. Gloria Whitley, Human Resources Director for Columbia University Affiliate of Harlem Hospital received a copy of the memorandum on July 16, 2002. Petitioner signed a contract for employment at LICH on July 27, 2002. The contract provided for Petitioner to begin working at LICH on September 1, 2002. Dr. Gail Blakely was Petitioner's supervisor at the Harlem Hospital clinic. Petitioner did not approve of some of the changes initiated by Dr. Blakely, a relatively new attending physician. Among other matters, Petitioner did not approve of the way Dr. Blakely organized the charts in the clinic. On August 2, 2002, Dr. Matseoane informed Petitioner that the issues between Dr. Blakely and her were no longer tolerable. Dr. Matseoane then told Petitioner that she had until August 5, 2002, to resign her position with the Harlem Hospital clinic, to which she was assigned and where Dr. Blakely was her supervisor, and transfer to another Harlem Hospital clinic or he would report her alleged misconduct to the New York State Department of Health, Office of Professional Medical Conduct. Petitioner argued that she had more seniority than Dr. Blakely, who had personality conflict problems with several other staff members. Petitioner argued that it did not make sense for her to transfer to another clinic because she was seeing patients at her assigned clinic and because she was already planning to take another position at another hospital in the near future. Petitioner refused to accept Dr. Matseoane's suggestion that she transfer to another clinic. A memorandum dated August 2, 2002, from Dr. Matseoane to Petitioner stated as follows: Pursuant to the discussion we had on August 2, 2002, I expect your letter of resignation from the Department of Obstetrics and Gynecology no later than August 5, 2002. Your resignation will be effective August 31, 2002. During this period, if any form of harassment occurs against Dr. Blakely, it will be reported to the State. Dr. Matseoane sent Ms. Whitley a copy of the memorandum. Ms. Whitley's duties require her to conduct an investigation when one staff member makes a complaint against another staff member. It is a function of Ms. Whitley's job to know who is hired or fired, or who resigns from the staff. As the Human Resources Director, Ms. Whitely is not responsible for hiring medical staff, but she is always involved in Columbia University Affiliate of Harlem Hospital's decisions to terminate an employee who is involved in an altercation with another staff member. Ms. Whitley was aware that Dr. Blakely and/or Dr. Matseoane had complained about Petitioner's behavior towards Dr. Blakely. She was also aware that Dr. Matseoane met with Petitioner on August 2, 2002, and that the conflict between Petitioner and Dr. Blakely was the motivating force behind Dr. Matseoane's August 2, 2002, memorandum. On or about August 4, 2002, a discussion between Dr. Blakely and Petitioner became very heated. Immediately after the heated argument between Dr. Blakely and Petitioner, Dr. Blakely made contact with Felix Davenport, an officer with the New York City Hospital Police. Officer Davenport then proceeded with Dr. Blakely to the elevator doors, intending to escort her safely to the first floor of the building. When the elevator doors opened, Petitioner was standing inside. Officer Davenport and Dr. Blakely entered the elevator. When Officer Davenport, Dr. Blakely, and Petitioner arrived at the first floor, Officer Davenport asked Petitioner if he could talk to her about what happened with Dr. Blakely on that day and other days. Petitioner responded that Dr. Blakely actually was harassing her and refused to discuss the matter further. Officer Davenport subsequently wrote an incident report. He also verbally advised Dr. Matseoane about the incident. When Ms. Whitley received a copy of Officer Davenport's report, she told Petitioner that she was to leave the premises. Ms. Whitley wanted to prevent further arguments in front of patients. Petitioner subsequently filed a complaint against Dr. Blakely at the local police precinct. Petitioner filed the complaint because she felt personally threatened. In a letter dated August 5, 2002, Petitioner's counsel advised Dr. Matseoane that she had not done anything to warrant his threats to report her to the State unless she resigned from the clinic. The letter stated that Petitioner hoped to take another position with another hospital by September 1, 2002, and that she would resign after securing the other position. Ms. Whitley received a copy of this letter. On August 9, 2002,Ms. Whitley sent the Harlem Hospital Police a photograph of Petitioner together with a memorandum, which stated as follows: Per our conversation, please be advised that Dr. Aptaker is not allowed on the premises until after her hearing takes place. You will be informed as to that date shortly. Ms. Whitley does not send, and the Harlem Hospital Police do not receive, instructions like the one contained in Ms. Whitley's memorandum unless an employee or staff member has been asked to resign or terminated under adverse circumstances. Employees who voluntarily resign usually just turn in their hospital identification and no further action is taken. In this case, Ms. Whitley wrote the memorandum based on her understanding as Human Resources Director that Dr. Matseoane had asked Petitioner to resign her privileges at Harlem Hospital. Ms. Whitley wrote the memorandum with the sanction of Petitioner's superiors. Ms. Whitley began looking into the allegations against Petitioner. However, she never had a chance to complete the investigation or conduct a hearing. In a letter dated August 12, 2002, Petitioner resigned her position with Columbia University/Harlem Hospital effective August 13, 2002. Petitioner wrote the August 13, 2002, date in by hand in a space left blank for that purpose and in the presence of Ms. Whitley. On August 12, 2002, Petitioner signed an addendum to her resignation letter. The addendum stated that Columbia University had discussed certain matters with Petitioner's attorney regarding her resignation. It addressed the following issues: (a) Petitioner's tuition stipend; (b) Petitioner's employment compensation for the month of August 2002 and consideration for another four months of salary; (c) financial reimbursement for conferences to which Petitioner was committed; provision of good personal and professional references and/or forms upon future request; and (e) the ability to review all personal and professional files at any time. The final two paragraphs of the resignation addendum stated as follows: The removal of all letters and/or memos from my files that are not honest, and are not representative of my personal and professional performance at HHC. Basically, upon my personal review as of approximately one week ago there were no negative documents in my file and this is the way my file should remain. In addition, there is no basis to make any negative reports to any medical or government agencies; such reports would be deemed false. Access to my office and any other facilities in the institution to remove any personal items and complete the transition I am making on this voluntary resignation and my leaving to my new position. A hand-written note at the bottom of the resignation addendum states that "[t]hese matters will be under discussion between the attorneys, but my resignation remains effective as " Petitioner worked at LICH for one year beginning September 1, 2002. However, in April 2003, Petitioner interviewed for a position with the University of Miami, School of Medicine, Department of Obstetrics and Gynecology, in Miami, Florida. She submitted her resignation to LICH in May 2003 to be effective August 31, 2003. Petitioner filed the instant application on June 23, 2003, in preparation for assuming a position at the University of Miami. The following day, the New York State Department of Health, Office of Professional Medical Conduct, sent Petitioner a letter informing her that she was being investigated regarding the medical care of her patient, S.R. On August 18, 2003, Petitioner appeared for an interview before an investigative committee of the New York State Department of Health, Office of Professional Medical Conduct. The interview involved the care of S.R. at Harlem Hospital plus additional behavioral issues. Counsel accompanied Petitioner during the interview. As part of the application process, Respondent sent Petitioner a letter requiring her appearance before Respondent's Credentials Committee (the Committee) on September 13, 2003. Respondent's letter indicated that Petitioner's appearance was for the purpose of discussing Petitioner's suspension from medical school, her arrest in 1996, a less than favorable evaluation from UMDNJ, a less than favorable evaluation from St. Michael's, and Petitioner's medical malpractice cases. Petitioner appeared at the September 13, 2003, meeting as required. The Committee members expressed their concerns about Petitioner's past history of problems with personal relationships and how such problems might affect her professional practice in the future. In her sworn response to the Committee's concerns, Petitioner repeatedly stated that she had not had "any problems at all" since the incidents with the two gentlemen in 1994 and 1996 and the New Jersey mental examination in 2000. Petitioner told the committee that she had been in a serious relationship for two and a-half years and had not had any sort of problem at all with anyone. In response to a Committee member's concern that Petitioner was always going to have to deal with personal circumstances for the rest of her life, Petitioner stated as follows: And I think I've been able to deal with that now. I appreciate your bringing up this concern. There have difficulties with my relationship that I've had for two-and-a- half years and they've been dealt with without any interventions whatsoever in my professional life. The Committee initially considered a motion to approve Petitioner's license contingent upon a Professionals Resource Network (PRN) evaluation and clarification from LICH regarding whether Petitioner's privileges at LICH were restricted in any manner. Ultimately, the Committee requested and Petitioner agreed to undergo a PRN evaluation. Petitioner also agreed to waive the ninety-day time frame imposed by Section 120.60(1), Florida Statutes. The Committee then voted to table Petitioner's application. PRN is the statutorily mandated consultant to Respondent on issues of physician impairment. Dr. Raymond Pomm is the Medical Director of PRN. He first met Petitioner at the September 13, 2003, Committee meeting. Dr. Pomm gave Petitioner three pairs of evaluators from which to choose, each pair consisting of a psychologist and a psychiatrist. Petitioner selected Dr. Larry Harmon to conduct her psychological evaluation and Dr. Eva Ritvo to conduct her psychiatric evaluation. On September 17, 2003, Petitioner completed a full day of psychological testing in Dr. Harmon's office. The psychological testing included, but was not limited to, the following: (a) the Minnesota Multi-Phasic Personality Inventory (MMPI); (b) the Wonderlic Personnel Test; (c) the Physician Self-Understanding Leadership Skills Enhancement Survey (P.U.L.S.E.); (d) the Millon Clinical Multiaxial Inventory-III (Millon); and (e) Practitioner Feedback Questionnaire. After Petitioner completed the testing, she initially gave Dr. Harmon permission to call her most recent physician- supervisors. The calls were to be made using the guise that Petitioner was participating in a leadership program for which he needed to gather information. This method of gathering information is considered acceptable and ethical because it preserves the anonymity and integrity of the physician being evaluated. On September 18, 2003, Petitioner went to meet with Dr. Ritvo, the psychiatrist. Upon her arrival, Petitioner realized that Dr. Ritvo's office was affiliated with the University of Miami, where Petitioner had accepted an offer of employment. Petitioner was concerned that she would be entered into the psychiatric patient database at the University of Miami, School of Medicine, and declined to undertake an evaluation with Dr. Ritvo. On September 18, 2003, Petitioner faxed Dr. Harmon a note stating that she rescinded any and all releases that she had signed the day before. The effect of the note prohibited Dr. Harmon from sharing any information with PRN and Dr. Ritvo. The note specifically rescinded her authorization to obtain references from anyone at her previous places of employment. Later on September 18, 2003, Petitioner amended her note to allow Dr. Harmon to exchange information with PRN, but forbade his contact with her supervising physicians. Dr. Harmon's written evaluation is dated September 22, 2003. According to the report, Dr. Harmon was unable to reach any conclusions because Petitioner did not allow him to obtain collateral confirmation of Petitioner's self-report from current or recent supervisors. However, the report does note that Petitioner claimed to have had a extremely positive professional and personal experiences for the past three years. She did not inform him of any difficulties with interpersonal relationships after 2000. Dr. Harmon's report contains supplemental information in an addendum. This information indicates that Dr. Harmon had to prod Petitioner to provide details about her suspension from medical school in 1994 and her arrest in 1996. After considerable probing about her more recent relationships, Petitioner stated that she had had excellent professional and personal experiences since 2000. It is apparent from the report that Petitioner did not tell Dr. Harmon about any relationship difficulties after she underwent the psychiatric evaluation at St. Michael's/Seton Hall in 2000. Dr. Harmon's supplemental information indicates that Petitioner appeared to minimize her own contribution to negative events that happened to her. Additionally, she appeared to have little insight into the cause of her current difficulties. In general, Petitioner minimized the impact that her behavior has had on others, expressing surprise that the medical school suspended her and not her boyfriend and that the police would arrest her for having a heated discussion on the street. In fact, after probing, Petitioner denied that her behavior has ever been inappropriate or that anything she has ever done could have contributed to her problems during training other than selecting the wrong relationships. She specifically denied having any behavior or academic problems at Columbia University. She denied that she had ever been fired or asked to resign from any job and that she had ever consulted any attorney for any reasons associated with workplace issues. In reviewing Petitioner's insight and judgment, Dr. Harmon concluded that her judgment appeared to be currently fair to poor, although poor by history. Dr. Harmon apparently reached this conclusion based on Petitioner's report that she had no problems in the last two or three years. The MMPI is an objective true/false personality inventory and measure of symptomology consisting of 567 questions. The test measures personality psychopathology, family adjustment, socialization, somatic complaints, depression, anxiety, and other mental health concerns. Petitioner answered questions on the MMPI in a way that undermined the validity of the test. She responded to the test items by claiming to be unrealistically virtuous. In other words, she depicted herself the way she wished other people to view her instead of providing a realistic depiction. The Wonderlic Personnel Test examines basic cognitive function. On this test, Petitioner demonstrated that she did not have anything wrong with her intellect or her ability to use her intellect. The Millon is a 175-item psychological questionnaire that measures the following: (a) clinical personality patterns such as antisocial or dependent; (b) severe personality pathology such as paranoid or borderline; (c) clinical syndromes such as anxiety or alcohol dependence; (d) severe symptoms such as thought disorder or major depression; and (e) validity indicators including disclosure, desirability and debasement. Once again, Petitioner's responses compromised the validity of the test. Her responses suggested an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Petitioner's responses on the Millon suggested compulsive personality patterns, histrionic traits, and narcissistic features. The Practitioner Credibility Questionnaire--Self- Assessment Version is a non-clinical questionnaire. On this questionnaire, Petitioner denied that she had exhibited any disruptive behaviors in the past two years, including but not limited to, the following: (a) inappropriate disruptive communications; (b) disruptive behaviors regarding medical care; (c) disruptive behavior towards policies and procedures; (d) disruptive interpersonal behaviors; and (e) any other disruptive professional behaviors. The P.U.L.S.E. is a non-clinical, self-report questionnaire of work behavior, which either motivates other team members to do their best work or disrupts their ability to do their best work. As to the questions relating to motivating behaviors, Petitioner reported that she "sometime less frequently" shows up on time for commitments. Otherwise, Petitioner reported that "definitely more frequently than average" responds when asked for help, spots and solves problems, takes charge when necessary, gives helpful and constructive advice, helps out when work needs to be done, and works collaboratively with other departments. As to questions on the P.U.L.S.E. involving disruptive behaviors, Petitioner denied any and all common disruptive workplace behaviors. She indicated that she "never" does them. As to questions on the P.U.L.S.E. involving disruptive impact on others, Petitioner denied any and all common disruptive reactions in others. Instead, Petitioner indicated that she "never" produces common negative reactions in others in the workplace. After Petitioner refused to undergo an evaluation by Dr. Ritvo, Dr. Pomm provided her with the names of additional psychiatrists that could perform the evaluation. Petitioner selected Dr. Richard Seely. Dr. Seely evaluated Petitioner on September 25, 2003. His evaluation results were very different from Dr. Harmon's results. Dr. Seely found nothing wrong with Petitioner. His report states that Petitioner appeared to be open, honest, and ready to take responsibility for her past behaviors. During the evaluation, Petitioner emphasized that she had learned from her past mistakes. However, it is apparent from the report that Petitioner did not disclose any relationship problems after she underwent the psychiatric evaluation at St. Michael's in 2000. Additionally, Petitioner told Dr. Seely she was not currently involved in a significant romantic relationship, although she was dating. This statement is contrary to Petitioner's statement to the Committee on September 13, 2003, when she repeatedly asserted that she had been in a serious relationship for two and a-half years. Dr. Seely's report incorporated Dr. Harmon's report. He concluded that Petitioner did not suffer from any emotional or characterological deficit that would diminish her capacity to meet accepted standards for the practice of medicine. On October 4, 2003, Respondent held a regularly scheduled meeting at which it reviewed the report of the Committee, including the PRN report. Petitioner was not provided notice of this meeting and was not in attendance when her evaluation was discussed. On October 4, 2003, Dr. Pomm provided Respondent with a written and oral report of several issues that arose during PRN's evaluation of Petitioner. Dr. Pomm's written report observed that none of Petitioner's three evaluations performed over the course of time by experts in the field had rendered a diagnosis. Dr. Pomm's written report did not recommend requiring Petitioner to enter a PRN monitoring contract as a condition of being licensed. Dr. Pomm stated in sworn testimony on October 4, 2003, that he believed Petitioner could practice medicine with reasonable skill and safety. Respondent refused to accept the conclusion that Petitioner was able to practice medication with reasonable skill and safety. Respondent once again tabled Petitioner's application, directing PRN to go back and get additional collaborative information about Petitioner by completing a survey of people that she worked with in the last three years. Dr. Pomm relayed Respondent's request for collaborative information to Petitioner and Dr. Seely. The three of them agreed to have Dr. Seely gather the information. Petitioner then provided the required contact information. In a letter dated November 5, 2003, Dr. Seely advised Dr. Pomm that he had made the necessary inquiries by telephone on November 3-4, 2003. First, Dr. Seely spoke with Dr. Carlos Benito, the Acting Program Director at UMDNJ. Dr. Benito confirmed that Dr. Robert Knupple, the former Program Director with whom Petitioner had past difficulties, was no longer affiliated with UMDNJ. Next, Dr. Seely spoke with Dr. Robert DiBenedetto, the Acting Program Director of the obstetric and gynecology residency program at Seton Hall. Dr. DiBenedetto had never met Petitioner but noted that her file reflected a resident who was average in performance. One note in the file stated that her performance was marginal. Another file note indicated that she lacked flexibility. Dr. DiBenedetto felt compelled to inform Dr. Seely that Seton Hall had received an inquiry from the New York State Department of Health on September 4, 2003. In response to that inquiry, Seton Hall had sent the entire contents of Petitioner's file to the Department of Health. Dr. Seely spoke with two of Petitioner's colleagues at Harlem Hospital, Dr. Joseph Bobrow and Dr. James Ryan. He also spoke with Dr. Glendon Henry, Harlem Hospital's Medical Director. Dr. Stephen Matseoane, Chairman of the Department of Obstetrics and Gynecology, was on vacation and therefore not available to speak to Dr. Seely. Dr. Bobrow stated that Petitioner was a good doctor who had good character and integrity. He stated that he trusted Petitioner and would gladly practice with her. Dr. Henry remembered Petitioner through he did not practice with her. Initially, Dr. Henry stated that no problems or complaints came across his desk during the nearly two years that Petitioner was at Harlem Hospital. Dr. Henry then stated that Petitioner did have a personal difficulty with someone on the obstetric and gynecology staff but could not say whose fault it was. Dr. Ryan confirmed his understanding that Petitioner left Harlem Hospital due to a conflict with a newly arrived attending physician who was in a position of authority over Petitioner. Dr. Ryan agreed with Dr. Henry that Petitioner could not be faulted for the conflict. According to Dr. Ryan, the remaining staff continued to have significant animosity toward the newly arrived attending physician after Petitioner left Harlem Hospital. Dr. Pomm provided Respondent with a supplemental written report dated November 6, 2003. Dr. Pomm's report incorporated Dr. Seely's November 5, 2003, report. Dr. Pomm stated that based on the previous evaluations and collaborative information, Petitioner did not need monitoring as condition of being licensed. Petitioner appeared before an investigative committee of the New York State Department of Health, Office of Professional Medical Conduct, for the second time on November 10, 2003. Subsequent to Dr. Pomm's submission of his supplemental written report to Respondent, Respondent scheduled Petitioner's application for further consideration at Respondent's meeting on December 6, 2003. Petitioner received notice that she was required to attend the meeting. While Dr. Pomm was flying to the December 2003 meeting, his office received an anonymous facsimile transmission that included negative information about Petitioner. The information consisted of the following: (a) incident reports created by Officer Davenport, Harlem Hospital Police; (b) memoranda written by Dr. Gail Blakley, who initiated the Harlem Hospital Police reports; and (c) documentation from the New York State Department of Health, Office of Professional Medical Conduct, regarding appearances before its investigative committee. Dr. Pomm requested that these materials be forwarded to him at the meeting. Dr. Pomm could not determine the truth or validity of the information on such short notice. Dr. Pomm knew he needed an opportunity to validate the information and incorporate it in his evaluation of Petitioner. Dr. Pomm informed Petitioner about his receipt of the information. He provided copies to Petitioner immediately prior to her appearance before Respondent in December 2003. When Dr. Pomm appeared before Respondent on December 6, 2003, he testified that he had come once again prepared to say that there was no reason for Petitioner not to be licensed in Florida. He stated that he had not had an opportunity to thoroughly review the recently received documents or to discuss them with Petitioner. In response to a specific question, Dr. Pomm told Respondent that the evaluators did not have the documents in question when they completed their reports. Dr. Pomm also stated that consideration of the documents would be essential to completing an evaluation of Petitioner. Dr. Pomm declined to make any further comments on the matter. Petitioner was not represented by counsel at the December 6, 2003, meeting. She admitted that she was aware of the investigation in New York when she appeared before Respondent in October 2003 and denied having any problems after 2000. Petitioner requested an opportunity to review the documents and to seek counsel. She requested an opportunity to withdraw her application. Respondent denied both requests. On December 6, 2003, Respondent initially considered a motion to table Petitioner's application again. Ultimately, Respondent voted to deny Petitioner's application. The Notice of Intent to Deny is dated December 23, 2003. On January 24, 2004, Petitioner appeared before the Committee. She requested that the Committee place a stay on the denial of her application pending a completion of the investigation. The Committee denied her request. Dr. Pomm is a board-certified psychiatrist who has been practicing medicine since 1981. As an expert in psychiatry, Dr. Pomm regularly relies on the evaluation of other psychiatrists and psychologists to form opinions. Dr. Pomm's testimony during the hearing is credited here. First, he discussed Dr. Harmon's determination that Petitioner's responses on the Millon test showed compulsive personality patterns, histrionic traits, and narcissistic features. According to Dr. Pomm, individuals with these characteristics tend to be demanding, attention-seeking, emotionally charged, self-serving with a significant degree of self-righteous indignation, lacking compassion for others, and lacking insight into their behavior, or worse, deceiving. Dr. Pomm stated that the characteristics demonstrated by Petitioner on the Millon could negatively interfere with patient care. It was especially significant to Dr. Pomm that Petitioner demonstrated these traits on the Millon because a degree of pathology could still be detected even though Petitioner's obvious efforts to present herself in a socially acceptable way compromised the validity of the test. Second, Dr. Pomm considered Petitioner's inconsistent responses during her interview with Dr. Harmon. For instance, Dr. Harmon was unable to elicit details about Petitioner's arrest in 1996 without considerable probing and Petitioner's responses to questions about the arrest changed as she provided more details. Third, Dr. Pomm testified that Petitioner's history demonstrates a pattern of poor decisions despite negative consequences. According to Dr. Pomm, Petitioner does not understand her behavior's impact on others, which critically affects her ability to practice medicine with reasonable skill and safety. Fourth, Dr. Pomm considered the contrast between the evaluations of Dr. Harmon and Dr. Seely. In the evaluation with Dr. Seely, Petitioner's level of responsibility, accountability and openness to evaluation was markedly greater. Dr. Pomm opined that the contrast shows that Petitioner presented herself to Dr. Seely in a way that serves her best, as she did in the MMPI examination. Dr. Pomm concluded that something was going on that neither Dr. Harmon nor Dr. Seely described by diagnosis. Additionally, Dr. Pomm was of the opinion that Petitioner had taken an active role to prevent the evaluators from being able to create a diagnostic impression. Dr. Pomm stated that one needs the cooperation of the individual being evaluated in order to conduct a mental examination and that PRN did not receive Petitioner's full cooperation. At the hearing, Dr. Pomm testified that he could not advocate for Petitioner's licensure because he did not have a valid evaluation. Dr. Pomm was no longer willing to rely on Dr. Harmon's and Dr. Seely's evaluations because they had been unaware that Petitioner was under investigation by the New York State Department of Health. Dr. Pomm opined that the evaluators were evaluating the impact [Petitioner] has on patient care, and if there is something consistent with her history and her potential psychopathology, and this becomes an example of that, that could be the basis for either further questioning regarding that, actual formulation and potential recommendations. Dr. Pomm changed his opinion because the negative information he subsequently reviewed had not been validated and incorporated into the evaluation. He also changed his opinion based on his viewing of Petitioner's videotape deposition in this case. Dr. Pomm described his concerns about Petitioner's videotape deposition as follows: The fact that she came to a videotape deposition with sunglasses and a hat and a scarf partly around her mouth and at first refused to look at the camera, that has nothing to do with her dress; in fact, just the refusal to look at the camera was of some concern. I have to start wondering, why is she refusing to look at the camera, what are we hiding? * * * I have to add in also responses to the questions, which appear to be resistant, defensive, and not forthcoming I had visions of Dr. Harmon [sic] kind of report, the immense type of probing. I saw an individual who saw a psychiatrist sometime ago and appeared to do well . . . . Now we go to a videotape, and I'm seeing things that are reflective of what Dr. Harmon alluded to in terms of the need to probe and not being forthcoming and the difficulty getting information. Now I have to take into my mind what the psychological testing said in terms of attempting to put on the best face, given the situation, so I have to wonder why the inconsistency over time, given the different evaluators and the different situations, we're seeing this. It causes obviously a big red flag in my head to see this type of inconsistency. Petitioner's behavior, appearance, and eye contact during the videotape deposition were in stark contrast to what Dr. Pomm observed of her when he first met her September 2003. Dr. Pomm found Petitioner's inconsistent behaviors alarming. In fact, he described her behavior during the videotape deposition as something "out of the realm of normal." Essentially, Petitioner impeded Respondent's ability to perform a proper, complete, and valid mental evaluation so that it was impossible to assess whether she is able to practice medicine with reasonable skill and safety. Question 29 on the application completed by Petitioner on June 17, 2003, asks for a "yes" or "no" answer to the following: Have you ever had any staff privileges denied, suspended, revoked, modified, restricted, placed on probation, asked to resign or asked to take a temporary leave of absence or otherwise acted against by any facility? Petitioner answered "no" to this question on her June 17, 2003, application. During the hearing, Petitioner maintained that she would still answer "no" to Question 29. Petitioner's answers to Question 29 were incorrect and misrepresented or concealed information that was relevant to Petitioner's consideration of her application. The greater weight of the evidence indicates that Petitioner was asked to resign her position at her assigned clinic and transfer to another clinic on or about August 2, 2003. When Petitioner refused this request, Dr. Matseoane requested Petitioner's resignation from Columbia University/Harlem Hospital. At the very least, Petitioner's privileges as an attending physician at Harlem Hospital were suspended, restricted, or otherwise acted against on or before August 9, 2002, when Ms. Whitley advised the Harlem Hospital Police that Petitioner was no longer allowed on the premises pending a hearing. Question 30 on the application completed by Petitioner on June 17, 2003, asks for a "yes" or "no" answer to the following: Have you ever been asked, or allowed to resign from any facility in lieu of disciplinary action or during any pending investigations into your practice? Petitioner answered "no" to this question on her application. During the hearing, Petitioner stated that "no" was still the correct answer to Question 30. Petitioner's answers to Question 30 were incorrect and misrepresented or concealed information that was relevant to Respondent's consideration of her application. The greater weight of the evidence indicates that Dr. Matseoane asked Petitioner to resign from Harlem Hospital or he would report her misconduct to the New York State Department of Health, Office of Professional Medical Conduct. Petitioner actually resigned before Ms. Whitley completed her investigation. Question 36 of the application completed by Petitioner on June 17, 2003, asks for a "yes" or "no" answer to the following: Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature including, but not limited to, a charge or violation of the Medical Practice act, unprofessional or unethical conduct? Petitioner answered "no" to Question 36 on her application. During the hearing, Petitioner continued to maintain that "no" was the correct answer to Question 36. Petitioner's answers to Question 36 were correct under one reasonable interpretation of the words "for a hearing on a complaint." It is true that Petitioner was never formally charged and noticed to appear for a formal hearing before the New York State Department of Health, Office of Professional Medical Conduct. Instead, the New York licensing agency was conducting an investigation about Petitioner's care of a patient and issues involving her interpersonal relationships. Petitioner was given notice and the opportunity to appear with counsel for a formal investigative interview on two occasions. Petitioner failed to inform Respondent about the New York investigation until she was confronted at Respondent's December 2003 meeting. At that time, Petitioner stated as follows: I'm looking at question 36, and if I were to fill out the application as of now, I just recently had these meetings with the OPMC in New York, I would have checked off "yes," but I do understand that now, as far as updating the Board and whatever the Board can do as far as --it was not intentional and nothing was being, as was told, concealed. * * * I honestly didn't know that this required and update. Under the circumstances of this case, Petitioner was obligated to update her application and to inform Respondent about the New York investigation. Petitioner knew or should have known that she could only be licensed by endorsement in Florida if the New York licensing agency resolved all issues in her favor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's application for licensure by endorsement. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 18th day of November, 2004. COPIES FURNISHED: Rosanna M. Catalano, Esquire Edward A. Tellechea, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Allen Grossman, Esquire Gray, Harris & Robinson, P.A. 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302-3189 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
