The Issue The following issues are raised by the specific count indicated in the Administrative Complaint: Count I: Did the Respondent fail to properly determine the validity of prescriptions presented to him? Count II: Did the Respondent dispense drugs without a proper prescription? Count III: Did the Respondent refill prescriptions which legally could not be refilled? Count IV: Does the Respondent's conduct as alleged in Counts I, II and III constitute misbranding of drugs by the Respondent? Count V: Did the Respondent make a false sworn statement? Both parties submitted post hearing findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being findings of fact.
Findings Of Fact At all times pertinent to this case, the Respondent, Robert Schenk, was licensed to practice pharmacy under the laws of the State of Florida and held license number 0011776. At all times material hereto, the Respondent was managing pharmacist at Greentree Pharmacy, 4944 Tenth Avenue North, Green Acres, Florida 33460. All of the misconduct with which the Respondent is charged pertains to prescriptions written for one customer, Samuel Sanders, age approximately 57, a regular customer of Greentree Pharmacy and the Respondent since 1978. Sanders was a cardiac patient who had had open heart surgery. Sanders had also suffered a gunshot wound to the shoulder, which resulted in the partial paralysis of his arm. Sanders had been admitted to the Miami Veterans Administration Hospital on many occasions. On the dates indicated below, Sanders brought to the Respondent to be filled prescriptions allegedly written by a Dr. Axher of the Veterans Administration Hospital in Miami: DATE PHARMACY RX NUMBER SUBSTANCE 07/24/80 18451 Dilaudid 09/04/80 19297 Dilaudid 11/26/80 21100 Dilaudid 12/30/80 21695 Percodan The Respondent filled the prescriptions set forth supra for Sanders after the Respondent had called the Veterans Administration Hospital and confirmed the DEA number on the prescription. The Respondent was unable to confirm the physician's identification with the Veterans Administration personnel with whom he spoke. In the past, a DEA number was assigned to Veterans Administration hospitals and covered all physicians. Subsequently, an additional identifier was added to the DEA numbers for facilities such as Veterans Administration hospitals to identify a specific physician. This regulation became effective in 1972; however, although no one could state when it was implemented, it was the general consensus of the witnesses that it was well after that date. The Respondent determined that the DEA number on the subject prescriptions was that of the Miami Veterans Administration Hospital; however, he could not determine whether the physician who signed the prescriptions was employed at that hospital. It was subsequently determined that the prescriptions presented to the Respondent by Sanders were forgeries. Although the Respondent could not identify the physician treating Sanders, Sanders was in fact treated at the Miami Veterans Administration Hospital by Dr. Atler. It was uncontroverted that pharmacists generally had a difficult time contacting Veterans Administration physicians to validate prescriptions. A search of Sanders' residence, conducted pursuant to search warrant, revealed many pill bottles, some of which came from Greentree Pharmacy and the Respondent. Pill bottles with the following prescription numbers were seized by the authorities at the time of this search: 5683, 10813, 16230, 19803, 21509, 20358, and 20357 or 8 (strikeover). A search of the records of Greentree Pharmacy and the Respondent revealed that prescription numbers 5683, 10813, 16230 and 19803 were not written for Sanders but were written for other customers of the pharmacy. The prescription number 20357 was not for the drug listed on the bottle bearing the number 20357 or 8 (strikeover). The prescription for 20358 was for the drug listed on said bottle. The Respondent's pharmacy, Greentree Pharmacy, was robbed sometime between mid-1980 and mid-1981. At that time, portions of the prescription records of the pharmacy were taken by the thief incidental to the robbery. The Respondent admitted that Sanders would come into the pharmacy and request a new pill bottle for an old prescription which had had the label obliterated. When the Respondent could not substantiate the original prescription because it was missing, the Respondent would assign it a prescription number generally in the range of the purported original and prepare a new label for Sanders. The Respondent denied refilling these prescriptions for Sanders. During the search referenced above, the authorities seized approximately six sets of bottles, each set bearing the same prescription number for controlled substances. Prescriptions for the controlled substances concerned cannot legally be refilled. Because in all but one instance these sets of pill bottles bore identical labels, this is prima facie evidence that the prescription had been refilled. However, only two of the bottles found contained any pills, and in both instances the number of pills in those bottles was less than the number of pills originally prescribed. The Respondent denied that he refilled these prescriptions. There is no allegation and no proof that the prescriptions for these medications were forged. The Respondent prepared a written sworn statement for an investigator of the Department of Professional Regulation. In this statement, the Respondent referred to the physician treating Sanders, "Dr. Axher," as "Dr. Astler." Evidence was introduced that a Dr. Atler did treat Sanders. The Respondent had been advised of this physician's name on the telephone but had not seen the name in writing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that no action be taken against the Respondent's license to practice pharmacy; however, that the Respondent, Robert Schenk, be assessed a civil fine of $1,000 for the violations alleged in Count II and $1,000 for the violations alleged in Count III of the Administrative Complaint, for a total of $2,000. DONE and RECOMMENDED this 26th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 26th day of September, 1983. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Donald P. Kohl, Esquire 3003 South Congress Avenue, Suite 1A Palm Springs, Florida 33461 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Background On May 2, 1988, petitioners timely filed their letter of intent with the local health council and respondent, as required by Section 381.709(2), Florida Statutes, announcing their intent to apply for a certificate of need to add 47 community nursing home beds to their existing facility in Vero Beach, Indian River County, Florida. Thereafter, petitioners complied with the requirements of Section 381.709(2)(d) Florida Statutes, by publishing a notice in the form required by law in a newspaper of general circulation in the area affected by the proposal. Specifically, petitioners published their notice of filing in the Vero Beach Press-Journal on May 16, 1988, and May 23, 1988. On or before June 1, 1988, petitioners, pursuant to Section 381.709(3)(a), Florida Statutes, timely filed their application for the aforementioned project with the respondent, and it was assigned certificate of need number 5638. The application contained no mention that publication as required by Section 381.709(2)(d), Florida Statutes, had occurred, or any documentation thereof. By letter of June 17, 1988, respondent returned petitioners certificate of need application to them, and stated: Section 381.709(2)(d), Florida Statutes, 1987, states in part that "within 14 days after filing a letter of intent, the applicant shall publish a notice of filing to be published in a newspaper of general circulation in the area affected by the proposal. The notice of filing shall be published once a week for 2 consecutive weeks on forms and in the format and content specified by the department by rule." Your application shows no documentation of publication of your letter of intent. Therefore, your application cannot be accepted by the Department. Petitioners filed a timely protest of the respondent's decision to reject their application, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. The controversy Respondent relies on the provisions of Rule 10-5.008(1)(d), Florida Administrative Code, as authority for its decision to reject petitioners' application because it failed to include documentation that the notice of filing had been properly published. That rule provides: ...An application for a certificate of need shall be submitted on HRS Form 1455, August 1985, incorporated by reference herein, and shall be provided by the Office of Regulation and Health Facilities upon request. An application shall not be deemed complete by the department unless all information requested by the department and provided for in the application form has been submitted on the form by the applicant. An application submitted to the Office of Regulation and Health Facilities on an incorrect form, or which omits the minimum requirements specified by the department on the application form, and does not include documentation that the notice of filing has been published in a newspaper of general circulation in the applicable district or subdistrict affected by the proposal in the form specified in paragraph (1)(c) of this rule, shall not be accepted by the department. Rule 10-5.008(1)(d), Florida Administrative Code, was effective November 1987. To date, it has only been applied to two batching cycles: a hospital batch which predated the subject cycle, and the subject nursing home batch. Respondent avers that it has consistently interpreted its rule, as applied in this case, to mandate its rejection of applications that do not document proof of publication of the notice of filing. However, there is no proof that its interpretation has previously been challenged or explicated, and such fact does not render its interpretation necessarily reasonable. The foregoing provisions of Rule 10-5.008(1)(d) Florida Administrative Code, were replicated in paragraph 5 of the "General Information" section of the "Instructions for Form 1455, Application for Certificate Need." While the instructions do not explain what respondent means by "documentation", paragraph 6 of the "General Information" section provides: Additional Information: For clarification of any part of this form, contact the Office of Regulation and Health Facilities at (904) 488-8673. Petitioners concede that they were familiar with the requirements of the rule requiring documentation that the notice of filing had been published. In fact, petitioners filed three other applications for a certificate of need during this review cycle, and included within such applications the standard affidavit of publication provided by the newspaper. Petitioners aver that they did not submit any documentation with the application at issue in this proceeding because it was their belief that only the standard affidavit of publication would satisfy respondent's documentation requirement. Accordingly, since they did not receive the affidavit of publication by June 1, 1988, the application deadline, they elected to file their application without documentation or explanation regarding publication. While petitioners' belief that the affidavit of publication would satisfy the respondent's requirement of documentation was reasonable, it was not reasonable for petitioners to conclude, absent inquiry of respondent, that such was the only form of documentation that would have been accepted by respondent. Had petitioners sought clarification from respondent, they would have learned that they could also have submitted a copy of the newspaper in which the advertisement occurred, or an affidavit attesting to the dates, place and substance of the advertisement along with the assurance that upon receipt they would submit the affidavit of publication. Petitioners did not, however, seek clarification from respondent. Further, while petitioners did not receive the affidavit of publication until June 6, 1988, the proof demonstrates that it was executed on June 1, 1988. Petitioners did not, however, secure the affidavit from the newspaper at that time, and did not, after its receipt on June 6, 1988, submit it to respondent. While petitioners did not submit the affidavit of publication to respondent prior to their receipt of the respondent's letter of June 17, 1988, returning their application, it is reasonable to conclude that, since they were in possession of such documentation, they would have provided it to respondent in response to a finding that their application was incomplete for such failure. They were not, however, accorded such an opportunity by the respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered accepting petitioners' application for review in the June 1, 1988, nursing home cycle. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1988.
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1976, a Florida-licensed pharmacist. At all times material to the instant case, Respondent was employed by Eckerd Corporation as one of two full-time pharmacists assigned to the Eckerd Drug Store (Store Number 3372) located at 312 North Lake Boulevard in North Palm Beach, Florida, which housed a community pharmacy that was open 14 hours a day. Respondent and the store's other full-time pharmacist worked separate, alternating shifts. At the beginning of each shift, Respondent "signed on" the pharmacy's computer system. She "logged off" the system at the end of the shift. Respondent was responsible for the supervision of all activities in the pharmacy during her shift. Among the activities it was her responsibility to supervise were those engaged in by the pharmacy technician on duty. The pharmacy technician assisted Respondent by, among other things, preparing computer-generated prescription labels and customer receipts for prescriptions that needed to be filled. The technician prepared these items by entering the required information, including the name and strength of the prescribed medication, into the pharmacy's computer system. 1/ All prescription labels and customer receipts prepared by the pharmacy technician on duty during Respondent's shift contained Respondent's initials ("MCB"). After they were prepared, the prescription labels and customer receipts were placed in bags, and the bags were put in baskets on the counter near Respondent, where they remained until the prescriptions were filled. When filling a prescription, it was Respondent's practice to examine the actual prescription written by the prescribing physician or, in the case of an oral prescription, the pharmacy's written record of such prescription, to confirm the accuracy of the prescription information on the prescription label and customer receipt and to make sure that she was dispensing what the physician had prescribed. 2/ The pharmacy was a "very busy" one. As a result, at the end of her shift, there were sometimes prescriptions for which labels and receipts (bearing her initials) had been prepared, but which Respondent had not had the opportunity to fill, and it was not until the following shift, when she was off duty, that these prescriptions were actually filled. Respondent was on duty on June 18, 1998, when a computer-generated prescription label and customer receipt for a prescription (Prescription Number 6071853) for Patient H. V. were prepared. The computer-generated prescription label and customer receipt, which had Respondent's initials on them, indicated, among other things, that the prescription was for 15 180 milligram tablets of Thyroid and that the prescribing physician was Dr. H. Pomeranz. It is unclear when, and by whom, Prescription Number 6071853 was filled. On or about October 9, 1998, Patient H. V.'s son, R. V., filed a complaint with Petitioner alleging that "the prescription [his mother] was suppose[d] to [have] be[en] taking was 15 mil[li]grams," but she instead "was given 180 mil[lli]grams per day by [the] Eckerd Drug Store [on North Lake Boulevard]." David Dimon, a Medical Malpractice Investigator with the Agency for Health Care Administration, investigated the complaint. As part of his investigation, Mr. Dimon contacted Respondent, who advised him that she did not want to make a statement regarding the complaint. Mr. Dimon also spoke with the prescribing physician, Dr. Pomeranz, who told him that she "prescribed Thyroid, 15 milligrams, for the patient, and not the 180 milligram dose given by Eckerd Pharmacy." 3/ Dr. Pomeranz further indicated to Mr. Dimon that H. V. 4/ suffered "side effects" as a result of taking the 180 milligram tablets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing the Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED this 13th day of March, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STUART M. LERNER 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 13th day of March, 2001.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in May 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Jerrylene Barr, who is an African-American, contends that in May 1994, Respondent, Columbia Ocala Regional Medical Center (Respondent), unlawfully terminated her from employment as a registered nurse on account of her race. Respondent has denied the charges and contends instead that Petitioner was terminated after she negligently overmedicated a patient, in addition to her prior performance of medication errors over a two-year period. After a preliminary investigation was conducted by the Commission on Human Relations (Commission), which took some three years to complete, the Commission issued a Notice of Determination: No Cause on April 27, 1998. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner began working for Respondent as a nurse in January 1992. Between September 1992 and May 1994, a period of seventeen months, Petitioner had twelve documented errors in giving medications to patients under her supervision. This was more than any other employee at Respondent's facility. During Petitioner's tenure at Respondent's facility, Respondent had a Medication Error Policy in effect. This policy outlined the procedures and penalties for medication errors. For each error, points were assigned according to the severity and frequency of errors. The policy provided, however, that management had the right to terminate an employee at any time for a serious medication error regardless of whether the employee had accumulated any points under the policy. Petitioner was aware of, and understood, this policy. On May 2, 1994, Petitioner was working the night shift at Respondent's facility and was in charge of six patients on the third floor. One of her patients was a 78-year-old male who was scheduled to have surgery for a life-threatening abdominal aortic aneurysm. The attending physician had written on his orders that day that the patient was to be given "Halcion 0.125 milligrams PO noon." This meant that he was to receive one-half of a .25 milligrams tablet of Halcion, a narcotic-type drug, by mouth at noon on May 3, the following day. The order was attached to the patient's chart. Around 6:30 p.m. on May 2, 1994, Petitioner mistakenly gave the patient five Halcion 0.25 milligrams tablets by mouth, or ten times the prescribed dosage. Although Petitioner did not initially disclose this fact to other personnel, she eventually conceded that she had made an error. When the patient was found in a comatose state a few hours later, three physicians were called to check on his condition, including his primary physician, a critical care physician, and a neurologist. Not knowing that Petitioner had overmedicated the patient, the primary physician initially believed the patient had suffered a stroke. The patient was admitted to the intensive care unit (ICU), a catheter was inserted, and he was placed on a respirator. After reading the medication record, the ICU nurses discovered that the patient had been overmedicated. The patient eventually recovered, but his surgery had to be postponed, which might have resulted in a burst aorta. His family later sued the hospital for Petitioner's negligence. Because of the serious nature of the error, and given Petitioner's past history of medication errors, Respondent terminated Petitioner on May 3, 1994. The employment decision was not based on Petitioner's race, but rather was based on "her poor work performance overall." There is no evidence as to whom, if anyone, was hired to replace Petitioner. The termination was wholly consistent with Respondent's Medication Error Policy. At hearing, Petitioner contended that the hospital did not terminate other nurses for similar offenses. However, during the same period of time that Petitioner was employed by Respondent, another nurse, M. C., a Caucasian female, was also terminated for making a serious medication error with a narcotic- type drug. Although M. C. had an otherwise "very good" record at the hospital, and did not have a history of medication errors, Respondent nonetheless terminated her since her conduct, like that of Petitioner, constituted a "life-threatening nurse practice error." Petitioner also contended that another nurse on duty that evening assisted her in calculating the Halcion dosage and this should relieve her of any responsibility. Although there was no independent testimony to corroborate this claim, even if true, the patient was under the direct supervision of Petitioner, and it would not diminish Petitioner's responsibility for placing the patient in a life-threatening situation.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 14th day of April, 1999. COPIES FURNISHED: Jerrylene Barr Post Office Box 289 Reddick, Florida 32686 Kip P. Roth, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues are whether attorney’s fees and costs should be awarded to the Petitioner (Petitioner or Dr. Aranda) under section 57.105, Florida Statutes (2016),1/ and, if so, the amount of the fees and costs.
Findings Of Fact In 2010, DOH received a sworn complaint from the Collier County Health Department (CCHD) alleging essentially: that Dr. Aranda was misrepresenting the nature of dental work she was providing to Medicaid patients to make it appear that she was prescribing and delivering non-orthodontic, “passive” appliances, which was covered by Medicaid, when she actually was prescribing and delivering orthodontic, “active” appliances, which was not covered by Medicaid, after being warned by her supervisor not to do so; and that she was delegating irremediable tasks, such as permanently cementing dental appliances and hand-scaling, to unqualified dental assistants. DOH investigated, and a panel of the Board of Dentistry found probable cause based on the investigative report. In May 2015, DOH filed an Amended Administrative Complaint charging Dr. Aranda as follows: in Count I, with making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009)2/; and, in Count II, with delegating irremediable tasks (hand-scaling and permanently cementing dental appliances) to a dental assistant not qualified to perform those tasks, in violation of sections 466.028(1)(z) and 466.024(1), and Florida Administrative Code Chapter 64B5-16.3/ Dr. Aranda disputed the allegations and asked for a disputed-fact hearing under section 120.57(1), Florida Statutes (2015)4/. The case was referred to DOAH, designated case 15-6268PL, and scheduled for a final hearing on March 2, 2016. On February 11, 2016, Dr. Aranda served (but did not file) a motion for sanctions pursuant to section 57.105, Florida Statutes (2015). The motion asserted that DOH knew or should have known that several paragraphs in the Amended Administrative Complaint referred to the billing of Medicaid for “passive” space maintainers and other similar appliances and related dental services, and that those allegations were not supported by the material facts necessary to establish them. The motion for sanctions served by Dr. Aranda in DOAH case 15-6268PL was based on discovery she had obtained through a deposition of the CCHD’s records custodian. The deposition revealed that the documents DOH had been calling Medicaid billing records actually were “dental treatment plans.” There were other documents called “bill service lists” that were the actual bills sent to Medicaid for payment. The “bill service lists” reflected flat fee bills to Medicaid for “Medicaid billing encounters.” The “dental treatment plans” consisted of patient demographics, personal information, insurance and billing information, and services provided. The “dental treatment plans” contained references to space maintainers and similar non-orthodontic appliances that were covered by Medicaid, and there were references to events labeled “bill initiated.” Both the “bill service lists” and the “dental treatment plans” were generated by the CCHD’s so-called HMS computer system. The motion for sanctions served by Dr. Aranda in DOAH case 15-6268PL concluded with a warning that it would be filed if DOH did not withdraw the allegations in the Amended Administrative Complaint referring to the billing of Medicaid for “passive” space maintainers and other similar appliances and related dental services. DOH did not withdraw the allegations. At the final hearing in DOAH case 15-6268PL, there was considerable confusion about the billing process and the various documents. Eventually, the “dental treatment plans” were received in evidence with the understanding that they were not the actual bills sent to Medicaid for payment. The “bill service lists” were not moved in evidence by either party. The billing information in the HMS system was entered by the CCHD’s clerical staff from “super bills” that were created by dental practitioners, including Dr. Aranda, based on their care and treatment of patients. Besides submitting her “super bills,” Dr. Aranda played no part in the generation of HMS billing information or the actual billing of Medicaid by the CCHD. The “super bills” were not available to be used in the final hearing because they were discarded shortly after the entry of the information they contained into the HMS system. No member of the CCHD’s clerical staff testified, and there was no evidence about the Respondent’s actual entries on her super bills.5/ Meanwhile, some of the patient records and appliance prescriptions written by Dr. Aranda for her Medicaid patients accurately reflected the kinds of orthodontic-type “active” appliances she was using for her Medicaid patients. Dr. Aranda testified that she was openly using orthodontic-type appliances for non-orthodontic purposes for these Medicaid patients. The Recommended Order in DOAH case 15-6268PL was entered on May 24, 2016. It found that DOH did not prove, by clear and convincing evidence, the charge in the Amended Administrative Complaint that Dr. Aranda was making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009). It recommended dismissal of the charges. The Final Order was entered on September 23, 2016; it adopted the Recommended Order, despite exceptions filed by DOH. On November 21, 2016, the Petitioner filed a petition for attorney’s fees and costs under both section 57.111 and section 57.105. The petition was designated DOAH case 16-6924F. It was amended to drop the claim under section 57.111. It was clear, and DOH knew or should have known within 21 days of service of Dr. Aranda’s section 57.105 motion for sanctions in case 15-6268PL, that the HMS “dental treatment plans” were not the actual bills sent to Medicaid for payment. The HMS “bill service lists” were the actual bills sent to Medicaid. However, the services billed to Medicaid via the HMS “bill service lists” were the same services described in the HMS “dental treatment plans” (even if the “bill service lists” themselves did not specify the services). Dr. Aranda did not prove by a preponderance of the evidence that DOH knew or should have known that the charge in the Amended Administrative Complaint, that Dr. Aranda was making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009), was not supported by the material facts necessary to establish it.
The Issue The issues in this case are: (1) whether the Petitioner should be given a passing grade on the podriatry examination he is challenging; and (2), in light of his failure to appear at the final hearing, whether the Department should assess attorney fees, costs and court costs under Section 455.229(3), Fla. Stat. (1993).
Findings Of Fact The Petitioner took the podiatry licensure examination administered by the Department on August 20, 1993, and received a failing grade. The Petitioner had due notice of the final hearing scheduled in this matter on June 14, 1994, by virtue of the Notice of Hearing issued on March 7, 1994. It also is clear that the Petitioner had actual notice of the scheduled final hearing. Counsel for the Department was in telephone communication with the Petitioner in the weeks before the scheduled final hearing and discussed the scheduled final hearing with the Petitioner. The Petitioner requested an opportunity to review the examination (for the second time) at 11:00 a.m. on the day of the final hearing (which was scheduled to begin at 1:00 p.m.) Counsel for the Department acceded to the Petitioner's request and, together with the Department's psychometrician, appeared at the final hearing site at 11:00 a.m. The Petitioner did not appear either at 11:00 a.m. or at 1:00 p.m. and had not appeared by the time the final hearing was concluded at approximately 1:33 p.m. The Petitioner gave no notice that he would not appear and has given no explanation why he did not appear. The Petitioner also has not responded to the Department's Motion for Recommended Order that Petitioner Pay Respondent's Reasonable Attorney's Fees, Costs, and Court Costs which was served on June 21, and filed on June 23, 1994. The Department expended $651.04 for fees and costs related to its attorney's preparation for, travel to and from, and participation in the final hearing. The Department expended $826.14 for fees and costs related to its psychometrician's preparation for, travel to and from, and participation in the final hearing. The Department expended $239.20 for fees and costs related to its podiatry expert's preparation for, travel to and from, and participation in the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a final order denying the Petitioner's examination challenge and assessing against the Petitioner attorney fees, costs, and court costs in the amount of $1,716.38. RECOMMENDED this 15th day of July, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 15th day of July, 1994. COPIES FURNISHED: Gerald J. Gambale 9713 Morehead Lane Port Richey, Florida 34668 Vytas J. Urba, Esquire Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Diane Orcutt, Executive Director Board of Podiatric Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
