Findings Of Fact Since 1904, a group of citizens in Tampa has paid weekly or monthly fees entitling each member to medical care as needed at little or no additional expense. Medical facilities for the group have been housed in a hospital building in Ybor City. In 1939, A. A. Gonzalez, a physician, gained control of these physical facilities. The A. A. Gonzalez Hospital Corporation acquired a 34 bed hospital. A. A. Gonzalez was president of the corporation until his death in 1953, when his widow, Lucia Gonzalez Nuniz, became president and treasurer of the corporation, positions she still holds. Aurelia Gonzalez- Risler, daughter of A. A. Gonzalez, now chairs the corporation's board of directors and is an executive vice-president of the corporation. There were some 6,000 members of this mutual aid medical society in 1976, but membership has fallen off considerably since then. Respondent has at least two subdivisions with whom hospitals in Florida sometimes come into contact. There is the Office of Licensure and Certification and there is the separate and distinct Office of Community Medical Facilities. The Office of Licensure and Certification employs architects and others who review plans for health care facilities in an effort to insure that they will comply with standards designed to protect the public health and safety. Among other things, these standards cover hospital laboratories, pharmacies, radiology departments, fire control, sanitation, and general physical plant requirements. See Chapters 395 and 400, Florida Statutes, and Chapter 10D-28, Florida Administrative Code. In furtherance of its objectives, the Office of Licensure and Certification also conducts periodic hospital inspections. Respondent's Office of Community Medical Facilities, on the other hand, administers the certificate of need program, an elaborate regulatory scheme intended to reduce health care costs by preventing unnecessary capital outlays by health care providers. Under this program, health care facilities or health maintenance organizations apply for certificates of need as a legal prerequisite to constructing new facilities, making certain capital expenditures, or taking certain other steps. See Sections 381.493 through 391.497, Florida Statutes, and Chapter 101, Florida Administrative Code. Preparation of an application for a certificate of need is a substantial undertaking. Before a proposed hospital is built, both a license from respondent's Office of Licensure and Certification and a certificate of need from respondent's Office of Community Medical Facilities are ordinarily required. At all pertinent times, the Office of Licensure and Certification had an official policy of referring inquiries about certificates of need to the Office of Community Medical Facilities. In addition, there was an unwritten agreement between the two offices that the Office of Licensure and Certification would issue no license until the license applicant had obtained either a certificate or need or a letter from the Office of Community Medical Facilities stating that no certificate of need would be required. Respondent's Office of Licensure and Certification conducted inspections of petitioner's facilities on February 5, 1976, on March 22, 23 and 24, 1976, on October 7, 1976, and again on October 24, 1976. As a result of these inspections, numerous deficiencies were pointed out to the petitioner. Some of these were readily correctable, but others, including the installation of new plumbing and widening the corridors, would have required substantial outlays. On December 20, 1976, Oscar Gonzalez, then petitioner's administrator, Mrs. Nuniz, Mr. Gilbert Flores, an architect retained by petitioner, and employees of respondent, Messrs. Owen, Schilling, Stankaitis, Insley, Burton and Honeywell, met in Jacksonville. Petitioner's counsel, J.J. Craparo, initiated arrangements for this meeting but did not attend. "At this meeting, many possibilities were discussed, including extensive renovation and replacement facilities," Respondent's exhibit No. 1, and including the requirement that a hospital building comply with the more stringent code standards applicable to new buildings if more than half the value of the building is expended on renovation, in a twelve month period. As a practical matter, petitioner's building could not be altered to comply with the code standards applicable to new buildings. During the meeting on December 20, 1976, Mr. Flores made a telephone call to determine whether land adjacent to the existing building would be available. Everybody at the meeting was under the impression that a project on the scale necessary to correct the deficiencies at A.A. Gonzalez Clinic and Hospital would require a certificate of need. Mr. Burton said as much. Every employee of respondent in attendance worked for the Office of Licensure and Certification. None was familiar with every exemption from the requirement that certificates of need be obtained. Petitioner's representatives relied on respondent's employees for their information. At this meeting, Louis Norman Schilling strongly urged that petitioner build a replacement facility rather than attempt renovation, a recommendation be repeated in a meeting on January 3, 1977, with Oscar Gonzalez, Gilbert Flores and Alberto Gonzalez del Barrio. At the time, Mr. Schilling worked for respondent. He is now an architect in private practice whom petitioner has retained in its efforts to build a replacement facility. At the meeting on January 3, 1977, Mr. Schilling advised petitioner's representatives that they would have to have a certificate of need or a "waiver letter" before proceeding with construction. After considering various alternatives, including the possibility of building a new hospital with 50 beds, petitioner decided to build a 34 bed replacement facility adjoining the existing building, which could then be used for doctors' offices and out patient services. As early as the summer of 1976, Mr. Schilling, at the behest of his supervisor, Mr. Rosenvold, told petitioner's representatives to contact the Florida Gulf Health Systems Agency (HSA) about applying for a certificate of need. The HSA is a non profit federally funded organization that makes recommendations on certificate of need applications to respondent's Office of Community Medical Facilities. In January of 1977, Oscar J. Gonzalez and other persons connected with petitioner met with Gary Silvers, the HSA's director of project review. They told Mr. Silvers that they needed to act to meet the objections of the Office of Licensure and Certification. Among the possibilities discussed was a new facility with expended services. Mr. Silvers did not advise petitioner's representatives that an exemption from the certificate of need review process was available to them. Instead, he recommended that they obtain technical assistance in preparing an application and suggested that they contact Michael J. Maffe, a consultant. Acting on this suggestion, petitioner entered into negotiations with Mr. Maffe which resulted in an agreement between petitioner and Health Research & Planning Associates, Inc., of which Mr. Maffe was president. Under the terms of this agreement, which was entered into in April of 1977, petitioner paid the consultant seventy- five hundred dollars ($7,500.00). Mr. Silvers received a letter from petitioner dated March 9, 1979, petitioner's exhibit No. 4, which he accepted as a letter of intent to file an application. The HSA forwarded this letter to respondent's Office of Community Medical Facilities, which received it on March 24, 1977. Some of the money used to finance the initial phases of the project came from Ybor Community Hospital and Health Care Center, Inc. (YCHHCC) a separate corporation whose board of directors overlaps petitioner's. Several physicians contributed to capital to YCHHCC, including Dr. Muniz ($18,000.00), Dr. Angel Alonso ($10,000.00 individually), Dr. Jorge Capote ($6,000.00), Dr. Victor A. Mallea ($2,000.00 individually), Drs. Mallea, Montoya and Alonso ($7,500.00 jointly), and Dr. Michael Martinez-Corpas ($2,000.00). Some $25,000.00 was expended on architects' fees, consultants' fees and the like before July 1, 1977, alone, in efforts to obtain certificate of need. As a result of petitioner's facility's deterioration, membership in the health care plan has fallen off, and people who have remained members frequently choose to be hospitalized elsewhere or are sent elsewhere by their physicians. Before July 1, 1977, petitioner received dues of between $30,000.00 and $35,000.00 monthly. By the time of the hearing, receipts had fallen off to about $15,435.00 monthly. At the hearing, the parties stipulated that, until July 1, 1977, petitioner could lawfully have renovated or replaced the facility without a certificate of need, but would have required a certificate of need as a legal prerequisite to an expansion. Petitioner only learned this after July 1, 1977. Respondent first acknowledged that this was the case on May 22, 1979. But for being misled about the necessity for a certificate of need, petitioner would have begun construction of a replacement facility before July 1, 1977. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue petitioner a certificate of need for the replacement of existing facilities on condition that construction begin within one year of the final order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August 1979. APPENDIX Paragraphs two, eight through eighteen, twenty, twenty-one, twenty-three through thirty-one, thirty-four, thirty-six, thirty-seven, forty through forty- two, forty-four and fifty-one of petitioner's proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of petitioner's proposed findings of fact has not been adopted because the income levels and ethnic backgrounds of the membership were not proven. Paragraph three of petitioner's proposed findings of fact has not been adopted because the uncontroverted testimony was that predecessor institutions dated from 75 not 71 years ago. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that the the name is A. A. Gonzalez Clinic & Hospital. Paragraphs five through seven of petitioner's proposed findings of fact have not been adopted because they were not proven. Paragraph nineteen of petitioner's proposed findings of fact has been adopted in substance, insofar as relevant, except that the weight of the evidence was that Mr. Rosenvold was not present. Paragraph twenty-one of petitioner's proposed findings of fact has been adopted in substance, insofar as relevant, but this advice was also given before December 20, 1976. Paragraph thirty-two of petitioner's proposed findings of fact has been adopted, in substance, except that expenses incurred since July 1, 1977, were not proven, according to the hearing officer's notes. Paragraph thirty-three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that respondent's Office of Community Medical Facilities did receive petitioner's letter forwarded to it by the HSA. Paragraphs thirty-five, forty-five through fifty and fifty-three are properly conclusions of law. Paragraph thirty-eight of petitioner's proposed findings of fact has not been adopted because is was not proven. Paragraph thirty-nine of petitioner's proposed findings of fact has been adopted in substance, except that the evidence did not establish any change in official policy after the summer of 1976. Paragraph forty-three of petitioner's proposed findings of fact has been adopted in substance insofar as relevant except that the evidence showed that counsel advised petitioner of this situation before May 22, 1979 (but after July 1, 1977). Paragraph fifty-two of petitioner's proposed findings of fact has not been adopted because petitioner was also given the choice of ceasing its operations. COPIES FURNISHED: Jean Laramore, Esq Kenneth G. Oertel, Esq. Suite 600, Lewis State Bank Building Tallahassee, Florida 32302 Amelia M. Park, Esq. Department of Health and Rehabilitative Services 4000 W. Buffalo Avenue Tampa, Florida 33614
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found: Petitioner Frank Robert Gentile was born in New York on August 14, 1942, and is a citizen of this country. He attended St. John's Preparatory School in New York from 1956 through 1960, and received his undergraduate degree from Seton Hall University in New Jersey in 1964. His medical degree was received from the University of Bolgona, Bolgona, Italy, in 1972. In 1973, petitioner's credentials were evaluated by the Educational Commission for Foreign Medical Graduates and he received a passing grade on the examination administered by that organization. Between July, 1972 and June, 1973, petitioner trained as a clinical clerk at Maimonides Medical Center and Wyckoff Heights Hospital in Brooklyn, New York. From July, 1973 through January, 1974, petitioner completed his medical externship at the Veteran's Administration Hospital in Brooklyn, New York. From January, 1974 through January, 1975, petitioner completed an approved internship at Jersey Shore Medical Center in Neptune, New Jersey. From July, 1975 through June, 1978, petitioner completed his residency at Methodist Hospital in Brooklyn, New York. Petitioner received a passing grade in the examination administered by the Federation of State Medical Boards of the United States, Inc. (FLEX) in September of 1977. From July, 1978 through June, 1979, petitioner trained as a Hematology Fellow I at Cabrini Medical Center, New York, New York. From July, 1979 through June, 1980, petitioner trained as a Hematology Fellow II at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. From July, 1980 through June, 1981, petitioner trained as a Medical Oncology Fellow at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. Petitioner has been continuously and actively engaged in the practice of medicine, specializing in the fields of hematology and oncology, from June, 1981 to the present. Petitioner currently holds licenses to practice medicine in the states of New York and North Carolina. These licenses are in good standing, have never been revoked or suspended and petitioner is not under investigation in either state. From July, 1981 through January, 1982, petitioner was employed by Memorial Hospital of Alamance County, Burlington, North Carolina, as a hematologist and oncologist. He considered this employment to be temporary and so informed the Chief of Staff. While at Memorial Hospital, petitioner treated patients, did consultations and trained the oncology nurse. During the first part of his work there, his patients and charts were reviewed by a panel of doctors. He never received any complaints from his patients or from his fellow physicians concerning his medical skills. The Medical Staff Bylaws required a six-month review. In January, 1982, petitioner was informed by the Chief of Medicine that the review board had met, that petitioner's charts were not complete enough and that the board felt that petitioner should immediately resign from the Hospital. When petitioner inquired as to the problems the board found with respect to his charts, he was not given a specific answer. Petitioner received no prior warning and he considered his charts acceptable. Rather than contesting the charges against him, petitioner resigned from Memorial Hospital inasmuch as he had no intention of remaining there on a permanent basis. On March 17, 1982, petitioner applied to the Florida Board of Medical Examiners for licensure by endorsement pursuant to Section 458.313, Florida Statutes (1981). His application was complete in all respects and was accompanied by the required application fee. During the application process, petitioner was requested to furnish additional information as to what he was doing from June, 1981 to the present. He responded that he had finished his training near the end of June and then had been trying to find a place to start a private practice. He further explained that he took over a doctor's practice while that doctor was on vacation and that he had worked in the emergency rooms in the North Carolina area. No mention was made by respondent of his employment with the Memorial Hospital of Alamance County. Upon a standard inquiry to the North Carolina State Board of Medical Examiners, the respondent board learned of petitioner's affiliation with the Memorial Hospital of Alamance County. That Hospital was requested to complete a form regarding petitioner. The form was completed by "Susan Denault, Assistant Administrator," and was returned to the respondent and placed in petitioner's application file. To the question "Does he perform competently?" the answer "Questionable" appears on the form. To the question "Have any restrictions ever been placed on him beyond the original period of probation?" the following answer appears: On January 18, 1982, the Department of Medicine reviewed the work of Dr. Frank R. Gentile acting in accordance with the Medical Staff Bylaws, Rules and Regula- tions which require a six-months review. At that meeting the Department of Medicine decided the work of Dr. Frank R. Gentile had not been up to the standards expected by the department, and was not in accordance with that standard that should be appropriate for practice in the Memorial Hospital of Alamance County. Before further action could be taken, Dr. Frank R. Gentile voluntarily resigned his membership and clinical privileges to the Medical Staff of Memorial Hospital of Alamance County, Inc. Dorothy Faircloth, the Executive Director of the Florida Board of Medical Examiners, in response to petitioner's inquiry as to the status of his application, informed petitioner that the Board had received the form from the Memorial Hospital of Alamance County and related the contents to him. She advised petitioner that the normal procedure of her office was to request further information from an institution providing such information and also to request the applicant to provide a written response to such a report. However, petitioner indicated that he wished to personally address the Board on this matter at its upcoming Board meeting. Petitioner did appear at the Board meeting but felt that the Memorial Hospital matter was not fully addressed by the Board and that he was not given the opportunity to speak to the Board on that matter. By Order dated June 24, 1982, the Board of Medical Examiners denied petitioner's application for licensure by endorsement, finding that The Petitioner has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety to his patients based upon his voluntary resignation of his membership and clinical privileges at Memorial Hospital of Alamance County, Inc., Burlington, North Carolina, just prior to disciplinary action taken by the hospital. Based on this finding, the Board concluded that petitioner had not demonstrated that he meets the statutory requirements of Sections 458.313 and 458.331(3), Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED. Respectfully submitted and entered this 17th day of January, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 17th day of January, 1983. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert 705 East Kennedy Boulevard Tampa, Florida 33602 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, Capitol Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS FRANK ROBERT GENTILE, M.D. Petitioner, vs. DOAH CASE NO. 82-1994 DEPARTMENT OF PROFESSIONAL REGULATION and BOARD OF MEDICAL EXAMINERS, Respondent. /
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: 1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ... Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial: The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information: ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.
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 on the grounds that he is not a graduate of a medical school recognized by the World Health Organization. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of July, 1993.
Findings Of Fact Upon consideration of the oral and documentary evidence presented the following facts are found: Petitioners each made application for a certificate of need under the provisions of Sections 381.493 through 381.497, Florida Statutes, 1975, which applications were submitted to the Bureau of Community Medical Facilities and accepted as complete by the bureau. Each application seeks a certificate of need for a third generation computerized axial tomography scanner (whole body unit) hereinafter referred to as a CAT scanner. There is presently in Jacksonville a head scanner installed at St. Vincent Hospital in November, 1975, and a whole body scanner at St. Luke's Hospital which has been in full operation since January, 1976. All three Petitioners are located in Jacksonville, Florida. The applications were processed by the appropriate Health Systems Agency. After due consideration the Health Systems Agency recommended that each of the three applications be granted. At the request of the Bureau of Community Medical Facilities, Department of Health and Rehabilitative Services, the State Hospital Advisory Council reviewed the applications and upheld the Health Systems Agency's determination that the three applications should be granted certificates of need. After consideration of the applications, the Health Systems Agency's recommendation the State Hospital Advisory Council's recommendation, Mr. Art Forehand, Administrator, Office of Community Medical Facilities, Respondent herein, notified each of the three Petitioners that their applications were not favorably considered. Mr. Forehand's notification set forth three reasons for the unfavorable consideration. Those were (1) lack of demonstrated need for the requested scanner, (2) failure of each application to demonstrate positive action toward containment of cost for services rendered to the public, and (3) lack of demonstrated unavailability, unaccessability, and inadequacy of like services within the Jacksonville area. At the time of his decision Mr. Forehand had no material or information available to him which was not available to the Health Systems Agency or the State Hospital Advisory Council at the time of their decision. At the time the three applications were denied Mr. Forehand felt that there did exist a need for one additional scanner in the Jacksonville area but he did not feel that he should bear the burden of deciding which one of the three applications should be granted and therefore all three were denied. Except for those matters set forth in Mr. Forehand's denial and noted above, none of the parties to this proceeding disputed that the criteria for determining need found in Section 101-1.03(c), F.A.C., were met. A study of computerized axial tomography with suggested criteria for review of certificate of need applications was conducted by the staff of the Health Systems Agency of Northeast Florida relative to the Duval County area. This study was published in April of 1976 and its findings appear to have been accepted by the Health Systems Agency. As one of its suggested criteria for determining need it found that a hospital or applicant should have a potential case load of at least 1,000 CAT scans per year. The study went on to project a potential case load for the three Petitioners herein. That projection for Baptist Memorial Hospital shows a a potential case load of 2,512 scans per year. The study noted that Baptist Memorial projected 1,300 scans for the first year during start up operations and 2,080 scans during the second and third years of their forecast. The study found that Riverside Hospital has a potential case load of 1,196 scans per year compared to their own projections of 1,432 scans per year. The study finally found that the University Hospital has a potential case load of 1,558 scans per year compared to their projection of 2,904. Testimony on behalf of the Respondent shows that in the opinion of Respondent full use of a CAT scanner is 10 scans per day on a 20-day work month working five days a week. As shown by unrebutted testimony the existing scanner at St. Luke's Hospital in Jacksonville is presently averaging 10 scans per day, five-days a week. Further, according to the evidence presented by Respondent, the existing scanner at St. Vincent is being utilized to at least 85 percent of its capacity. Respondent took the position at the hearing that when existing scanners are being used to 85 percent or more of their capacity a need exists for more equipment. Thus, it appears that using the criteria of utilization adhered to by Respondent, the existing CAT scanners in Jacksonville are being utilized to the extent that there is a need for additional scanners. University Hospital has 310 licensed beds and is the community hospital in Duval County with the responsibility of serving the indigent on an emergency and short term basis. It is the trauma center of the city and has the most active emergency room. It is also the major teaching hospital in Duval County. Respondent agrees that it has the greatest need of any hospital in Duval County for a CAT scanner. The University Hospital has approximately 300 visits per month to its emergency room. In the four months prior to the date of final hearing the hospital did 586 skull x-rays due to trauma. In the case of acute trauma patients frequently may not be moved from one hospital to another for the purpose of a CAT scan nor, in some cases, should other dangerous invasive techniques be used for diagnosis. Baptist Hospital has 567 licensed beds and is a major oncology center or cancer center and does a large amount of surgical cancer work in additional to radiation therapy. With the possible exception of University Hospital, Baptist Hospital is the largest pediatric hospital in the area. According to the testimony of the administrator of the hospital it would take 14 to 18 months after receipt of a certificate of need to have a CAT scanner in service. Riverside Hospital has 183 licensed beds. The hospital has been a specialty hospital since its establishment in 1908 and serves the Riverside Clinic. The hospital has approximately 200 specialized physicians, all board certified, on-staff. Riverside is a unique hospital because of its degree of specialty and its relationship to Riverside Clinic. Riverside Hospital does 100 percent of the Riverside Clinic's radiology work. Riverside Hospital has been known as an established diagnostic center. Witnesses for Riverside Hospital testified that if they were not able to have a CAT scanner their reputation and ability to provide first class service would be seriously diminished. CAT scanners represent a significant development in diagnostic medicine. They reduce the need for many dangerous, painful and costly injections of dye, air and radioactive isotopes required by some of the more traditional diagnostic procedures. The three most common tests displaced by CAT scanners are pneumoencephalography, angiography and radioactive isotope scanning. The first two of the foregoing are particularly expensive procedures and require hospitalization. At present, patients at the three Petitioner hospitals have to be transported to another facility in order to use a scanner. The transfer of an inpatient to another hospital for a scan may effectively consume the better part of a patient's day and may require an extra day of hospitalization. The cost of transportation, increased hospital stay and ancillary matters increase the actual cost to the Patient. Patients suffering from severe trauma or otherwise in a critical state, may not be transported out of a hospital to a scanner. All three of the Petitioners have an active neurological and neurosurgical staff and qualified radiologists. The unrebutted testimony indicates that, although CAT scanners are a new development whose potential has not yet been fully explored and whose development may not yet be final, they nevertheless have become an essential diagnostic tool of regular use.
Findings Of Fact Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part: "458.1201l--Demial, suspension, revocation of license; disciplinary powers-- The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the follow- ing: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m))." Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct: "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will- ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice whether committed within or without this state." (Emphasis supplied) The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated: "In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee." This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.
Recommendation Based on the foregoing findings and conclusions, hereby RECOMMEND: That the Administrative Complaint filed herein against the Respondent be DISMISSED. RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814 George S. Palmer, M.D. Execuivo Director State of Florida, Board of Medical Examiners 2009 Apalachee Parkway, Suite 220 Tallahassee, Florida 32301
The Issue The issues in this case are whether the statement contained in Respondent's letter dated September 9, 1997 (1997 Letter), establishing a $24.00 payment for hospital outpatient services billed as revenue code 451 constitutes a rule as defined by Subsection 120.52(15), Florida Statutes (2010),1 and, if so, whether Respondent violated Subsection 120.54(1), Florida Statutes, by not adopting the statement in accordance with applicable rulemaking procedures.
Findings Of Fact AHCA is the state agency responsible for the administration of the Florida Medicaid Program. § 409.902, Fla. Stat. Petitioners are acute care hospitals that are and were enrolled as Medicaid providers of outpatient services in Florida, at all times relevant to this proceeding. On September 9, 1997, AHCA issued a letter to hospital administrators, which provided the following: This letter is to inform you that Medicaid coverage for hospital emergency room screening and examination services is now in effect. Hospitals will be reimbursed a $24.00 flat fee for providing these services to Medipass and Medicaid fee-for-service recipients who do not require further treatment beyond the screening and examination services. This policy is retroactive to July 1, 1996. The letter further provides that the $24.00 reimbursement would be billed under the revenue code 451. The statement in the letter applies to hospitals which are Medicaid providers and, therefore, is a statement of general applicability. The statement meets the definition of a rule. AHCA concedes that the statement, which provides "payment of a $24 rate for Medicaid Hospital Outpatient Services billed under Revenue Code 451, constitutes a rule under s. 120.52(16), Fla. Stat." AHCA concedes that the statement has not been adopted as a rule by the rule adoption procedures provided in Section 120.54, Florida Statutes. AHCA has discontinued all reliance on the challenged statement.
