The Issue The issue for consideration in this hearing was whether Petitioner should be granted additional credit for one or more of questions number 41, 44, 70, or 72 of the National Council for the Certification of Acupuncture, (NCCA), multiple choice examination administered on May 18, 1991.
Findings Of Fact Petitioner, Aaron Benjamin sat for the May 18, 1991 NCCA acupuncture certification examination administered by the Department of Professional Regulation and achieved a passing score on the clean needle technique portion of the examination. However, he received a score of 69 on the written portion of the examination for which a score of no less than 70 was passing. Thereafter, Petitioner challenged four of the written questions on the exam; questions number 41, 44, 70 and 72, alleging that in each case, the question was worded in such a manner as to allow for more than one correct response and that his response, different from the accepted response, was also correct. This allegation was made notwithstanding the written examination instruction that there was "one and only one correct choice for each question." In his challenge, Petitioner also asserted that the examination instructions provided by the NCCA did not limit the textbooks which might be used for preparation for the examination. He claimed that many of these texts encompassed different philosophies of traditional Chinese acupuncture. By the same token, he alleged, the NCCA also did not specify which school of acupuncture should be referenced when answering the challenged questions. There are numerous different acupuncture texts available for reference which are written through different schools of acupuncture and which represent the differing philosophies of acupuncture practitioners. Utilization of differing schools and differing philosophies could affect an examinee's answer choice. Petitioner also asserted as a defect in the examination process the fact that he received his copy of the examination preparation booklet only two weeks prior to the examination rather than the 30 days which should have been provided. He raised these complaints to officials of both the Board of Acupuncture and the NCCA without success. Question 41 in issue reads: If a patient comes to you with a swollen puffy face and complains of scanty urination, which of the Zang-Fu would you first suspect to be disordered? Lung Kidney Spleen Urinary Bladder Petitioner answered this question with "3 - Spleen" while the Department's answer was "1 - Lung." He claims the question does not specify whether the diagnosis of the patient's condition should be from the beginning of the condition or at the time of examination. He asserts, however, that the spleen is an organ with which this condition may be associated since the accumulation of fluid in the interiors causing edema (swelling) is a syndrome of the spleen and incontinence of the urine also relate to that organ. On the other hand, as indicated by the Department's expert, the lung dominates the vital functions of the entire body and greatly influences all its functional activities. It controls and disperses all fluid in the system. The accumulation of water in a patient with a puffy face and scanty urination, therefore, comes from the lung which is responsible for dispersion of water which might, originate from the spleen. Consequently, "Lung" is the correct answer. Question 44 in issue reads: Bouts of dizziness that continue when a patient lies down are attributed to: deficiency excess heat cold Petitioner answered this question with "1 - deficiency", claiming that either excess or deficiency could result in a patient remaining dizzy after lying down. He asserts the wording on the examination question does not provide sufficient information regarding the syndrome to allow the examinee to differentiate whether an excess or deficiency syndrome resulted in the patient's condition. He claims that if an individual suffered from a deficiency syndrome, and the body energy did not stabilize after the patient reclined, the dizziness would continue. The Department's expert notes that the correct answer is "2 - excess" because in a deficiency syndrome, the vital energy, when one lays down, will come back. With an excess, however, even if one lays down, the excess will not go away. Dr. Celpa admits, however, that in western medicine, Petitioner's answer would be correct. However, in traditional Chinese medicine, which deals in philosophy (theory), one has to accept the specifics given by the Chinese. The correct answer, for the purposes of this examination is, therefore, "2 - excess." Question 70 in issue reads: A tight and forceful pulse could indicate: Damp of the Spleen and Stomach. hyperactivity of the Yang of the Heart. penetration of Cold into Liver Channel. Yin deficiency of the Heart. Petitioner answered "1 - Damp of the Spleen and Stomach, while the Department's correct answer was "3 - penetration of Cold into the Liver Channel." He notes that cold is indicated by a slow pulse and penetration of cold into the liver channel is indicated by a deep, wiry and slow pulse. A forceful pulse, he claims, can sometimes mean an accumulation of dampness in the spleen and stomach not allowing the body to metabolize food for distribution to other organs. If one has damp one has an accumulation. Petitioner answered as he did because of the study guide definitions. The study guide directs the examinees to use its definitions and there was no word for forceful included therein. Dr. Celpa, on the other hand, contends "a penetration of cold in the lower channel" is the correct answer as asserted by the NCCA. Most written authorities on the subject indicate that a tight and forceful pulse relates to the liver. Included in these authorities are The Web That has No Weaver; Fundamentals of Chinese Medicine; Acumoxa; and Pulse Diagnosis. Therefore, he concludes that cold in the liver is the closest answer. He asserts, contrary to claims of the Petitioner, that the definition page contained in the examination packet contains all one needs to take the examination. The packet is put together by the Board of Acupuncture and directs definitions outlined in The Web That has No Weaver be used. This gives little room for error. Nonetheless, he admits this question should have more information available in it to assist the examinee and is a poor question. Question 72 in issue reads: Which of the following will cause a foul or offensive smell of the discharge or excretion? Damp disorder combined with Cold. Damp disorder without Cold. Heat disorder of the Xu (deficiency) type. Heat disorder of the Shi (excess) type. Petitioner's answer to this question was "1 - Damp disorder combined with Cold", and the correct answer, as indicated by the Respondent was "4 - Heat disorder of the Shi (excess) type." Petitioner's answer was based on the statement in Traditional Chinese Medicine to the effect that where there is damp there is odor. There is no reference therein to damp heat, so, looking at the remainder of the authoritative statement, he concluded that dampness is associated with odor. On the other hand, Dr. Celpa indicated Petitioner's answer is wrong because damp is not necessary for odor. The heat disorder is the primary one giving an offensive odor. The Shi type adds to it. While damp could have a foul odor, the heat (Shi (excess)) is the only one which gives the discharge. All of the possible answers show something wrong, but the association of heat and excess best meets the test. Consequently, Petitioner's answer could not be correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Board of Acupuncture denying Petitioner's request for additional credit. RECOMMENDED this 28th day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-926 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted as an accurate description of the thrust of Petitioner's complaint. Accepted. Accepted and incorporated herein. Accepted as Petitioner's justification for his answer but rejected as appropriate authority. Accepted as an accurate description of Petitioner's answer and the correct answer, and as Petitioner's justification for his answer, but rejected as appropriate authority. Accepted and incorporated herein. Accepted as an accurate description of Petitioner's justification for his answer and as a restatement of Respondent's position, but rejected as appropriate authority. Accepted and incorporated herein Accepted as Petitioner's justification for his answer but rejected as appropriate authority. FOR THE RESPONDENT: 1. - 11. Accepted and incorporated herein. COPIES FURNISHED: Arthur J. Springer, Esquire 215 Verne Street, Suite A Tampa, Florida 33601 Vytas J. Urba, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William Buckhalt Executive Director Board of Acupuncture 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions Having reviewed the Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review dated October 19, 2010, attached hereto and incorporated herein (Ex. 1), and being advised that the Petitioner has voluntarily withdrawn its request for a formal hearing dated August 2, 2011 (Ex.2), and being advised of all other matters of record, the Agency for Health Care Administration (“Agency”), finds and concludes as follows: ORDERED: 1. The Petitioner's initial application for health care licensure is withdrawn. 2. The Petitioner's request for a formal hearing is withdrawn. 3. The Agency’s Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review is moot and thus is withdrawn. DONE and ORDERED this /7 day of Leger , 2011, in Tallahassee, Leon County, Florida. Elizabeth Dudek, Secretary alth Care Administration 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. Copies furnished to: | Timothy G. Schoenwalder, Esquire 204 South Monroe Street Tallahassee, Florida 32301 (U.S. Mail) Warren J. Bird | Assistant General Counsel Agency for Health Care Administration (Interoffice Mail) Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Roger Bell Health Care Clinic Unit Manager Agency for Health Care Administration (Interoffice Mail) Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (U.S. Mail) CERTIFICATE OF SERVICE ] HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the 78 day of as cz ‘2011. Richard Shoop, Agency C Agency for Health Care Administration 2727 Mahan Drive, Building #3
Findings Of Fact Petitioner applied to take the acupuncture examination given October 30 - November 3, 1984, but his application was not approved until he provided additional verification of his experience. By the time his approval was granted it was too late for the 1984 examination and he was advised to apply for the July 1955 examination which he did. In 1984 Petitioner was sent Applicant Information for Acupuncture Examination document (Exhibit 5) which indicates copies of Florida Statutes Chapters 389 and 457 and the rules applicable to each chapter are attached. Petitioner acknowledges receiving certain information but does not recall exactly what he received. When Petitioner re-applied to take the 1955 examination he received certain material from Respondent containing the statutes and rules from which the examination questions on Laws and Rules would be taken. Petitioner contends he received only the information contained in Exhibit 3 which consists of Chapter 457 Florida Statutes (1983) and Chapter 21AA Florida Administrative Code. After taking the examination and finding unfamiliar questions in Part I of the examination, Petitioner discovered the documents from which he studied did not have applicable provisions of Chapter 389 and rules pertaining thereto in Chapter 10D-81 Florida Administrative Code. When he subsequently learned he had failed Part I of the examination Petitioner, on October 10, 1985, went to Tallahassee to check on his examination grade and to complain that he did not receive the two pages containing Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code. Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code, which Wang did not study for the examination, consist of two pages with both sides of each page containing information and are pages 643 and 644, Florida Statutes (1981) and pages 525 and 526 Florida Administrative Code. On Part I of the examination Wang missed three of five questions taken from page 643, three out of eight questions from page 644, five out of eight questions from page 525 and four out of ten questions from page 526. Part I consisted of fifty questions and of those fifty questions Wang missed fifteen from the statutes and rules he did not study for the examination. Clearly his failure to study those pages was the primary cause of Wang receiving a failing grade of 66 on Part I of the examination. Ann Mayne is Administrative Assistant to The Board of Acupuncture and two other boards. She is the only one who mails out material to applicants and in her absence requests for such material are held pending her return. In October 1985 when Petitioner went to Tallahassee Ms. Mayne was on vacation. Petitioner first went to the Department of Professional Regulation and was referred to the acupuncture office in an adjacent building. There he contacted a clerk who attempted to help him and gave him the two pages (Exhibit 4) he alleged he did not have. Ms. Mayne sends out all information to applicants for acupuncture license. She prepared the Application Information Sheet (Exhibit 5) and the copies of statutes and rules pertaining to acupuncture. Ms. Mayne keeps this information in a file cabinet with the pages separated so all of the same page are together. When she prepares an information package she goes through the file drawer and takes out one sheet from each of the divisions and thereby compiles a complete package. These sheets are not stapled together but are put in an envelope and mailed to the applicants. In 1985 Wang was not sent a copy of the information sheet (Exhibit 5) but Ms. Mayne put a note in his file that he had been sent the 1985 packet of laws and rules. Because there had been a change in Chapter 457 between the 1984 and 1985 examination she wanted to be sure a copy of these new provisions was sent to Wang. The copy Wang acknowledges he received (Exhibit 3) contains Chapter 457 Florida Statutes and Chapter 21AA Florida Administrative Code. If, as contended by Wang, the packet he received for the 1985 examination did not contain relevant portions of Chapter 359 Florida Statutes and Chapter 10D-81, Florida Administrative Code, the packet he received in 1984 did contain those sections and there was no change in those laws and rules between the 1984 and 1985 examinations.
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1. The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $100.00 within 30 days of the entry of this Final Order. A check made payable to the “Agency for Health Care Administration” containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this 7) day of Deeerber , 2011. © be ge oan cret 1 Administration 1 Filed December 8, 2011 3:10 PM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this ge day of _/f A _, 2011. Richard Shoop, Agency Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Roger Bell Health Care Clinic Unit Manager Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) Zachary B. Buffington, Esquire Florida Bar No. 0087748 Williams Parker Harrison Dietz & Getzen 200 South Orange Avenue Sarasota, Florida 34236 (U. S. Mail) Warren J. Bird, Asst. General Counsel Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) | lizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) 08/16/2011 TUE 16:05 PAX Wo11/ 027 FROM ‘NEUROMUSCULAR THERAPY CENTER FAX NO. 1941-926-3342 Jul, 29 2011 @1:4 RICK SCOTT eaetter Heat car forall Flridans BUZARETH DUDEK GOVERNOR fore SECRETARY CERTIFIED MAIL / RETURN RECEIPT REQUESTED July 28, 2014 Nouromusculge Therapy Center Inc Liconse Number: Po Box 1922) Case #; 2011 00 8175 Certified? Article Number SENDERS RECORD PUIG 9008 9411 4739 £330 | FURTHER REVIEW Your appllcatipn for licanse Is deemed Incomplete and withdrawn from further consideration pursuant to Section 408,806(3)(b), Florida Statutes, which states that “Requested Information omilted from an application for llcensure, liesnse renewal, or change of ownership, other than an Inspection] must be filed with the agency within 24 days after the agenoy's request for omitted Information or the application shall be deemed Incomplete and shall bs withdrawn from further consideration and the fees shall be forfeited”. You wore notified by correspondance dated July 6, 2011 to provide further information addressing Idpntified apparent errors ar omisatons within twenty-one days from the recelpt of the Agency's correspondence. Our records indicate you tacelved this correspondence by certified mail bn July 14, 2011. The Agency recelved your response to this requested Information on July 18, 2071. After careful review of your responge, your applicatian Is‘ deemed incomplete and withdrawn from further consideration. The outstanding Issues remaining for licansure are Medical/Ciinfe Director - The Medical/Clinic Director listed on the appiication ie not a qualified health care plofessional, You falled to provide the required licensure by the Florida Department of Health on the appileation. (AHCA Form 31 40-0013 July 08; Rute 69A-33.002 (1), F.A-. and 400,991 (3), F-S.) Finanglal Officer - No financial officer was listed on the application, You must furnish the full name, complete residence and business address, telephone number, and positlonititle for the Financial Officer. (AHCA Form 3110-0013 July 06; Rule 69A-33.002 (1), FAC.) Backgroun Sereaning — You falled to provide evidence of Level Hl background screening for the followinglindividual(a); & Van Vyven, Kathleen Gorman, Gregory Wlegers and Susan Peace. cement — Visit ANCA online at 2727 Mahan Prive, MS-53 Tallahassee, Fiogida 32308 ahco.myflorida.com 08/26/2011 TUE 16105 FAX FROM :NEUROMUSCU! : ULAR. THERAPY eee eT CENTER FAX ND. $941-926-3342 ha ul, 29 2041 1341 T41PM PS Neuromusoular' nerapy Center Inc Page 2 July 26, 2017 alive tearing. 1 o Section 420.589, F.S., YO ding before the Division of Administrative Hearings under Section the requirements in order to obtain a formal proceeding dminietrative hearing must co ), and must state the material facts you 420.87(4), Fog YOur request for an & Section 28-196.201, Florida Administrative Code (F.A.C). an dispute. SEB ATTACHED ELECTIO! Pursuant | AND EXPLANATION OF RIGHTS FORMS. lanage Clinic Unit ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mall Stop 3 @o12/027 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION NEUROMUSCULAR THERAPY CENTER INC., Petitioner, FRAES No.: 2011008175 vs. Case No. 11-04459 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The Petitioner (“the Applicant”) and the Respondent (“the Agency”) voluntarily enter into this Settlement Agreement (“Agreement”) and agree as follows: 1. Parties/Background. The Applicant filed an application seeking licensure within the jurisdiction of the Agency. After initial review, the Agency issued the Applicant a Notice of Intent to Deem Application Incomplete and Withdrawn From Further Review (“NOI”). The Applicant has since tendered to the Agency additional information and/or documentation in support of the application, which the Agency is willing to review. 2. Purpose and Effect of Settlement. Both parties wish to resolve this case without further litigation and recognize that by entering into this Agreement, both are expressly waiving their right to any legal proceeding they are entitled, including, but not limited to, formal and informal proceedings under Section 120.57, Florida Statutes, and appellate review. Both parties consent to the withdrawal of any request for formal or informal hearing if such a request has been made, as well as the relinquishment of jurisdiction of the informal hearing officer or administrative law judge. 3. Resumption of Application Review. The parties agree that this Agreement shall supersede the NOI and that the application will no longer be deemed to be incomplete and withdrawn from further review and the NOI is deem deemed superseded by this agreement . If the Agency has not already completed its review of the application, it shall resume its review of the application upon entry of the Final Order adopting this Agreement. Nothing in this Agreement, however, shall prohibit the Agency from denying the application based upon any statute, rule, or regulation, and, if applicable, an unsatisfactory licensure survey. 4. Administrative Fee. The Applicant agrees to pay the Agency an administrative fine of ($100.00) within 30 days of the entry of the Final Order. 5. Release. The Applicant releases and forever discharges the Agency, its employees and agents, both past and current, from any and all claims, including, but not limited to, damages, attorney’s fees and costs, arising from or relating to the issuance or litigation of this NOI. 6. Costs and Attorney’s Fees. Each party shall bear their own costs and attorney’s fees. Page | of 2 EXHIBIT 2 FROM :NEUROMUSCULAR THERAPY CENTER FAX NO. :941-926-3342 Oct. @5 2011 89:18AM PZ OCT-@5-2811 18) AHCA paz GENERAL COUNSEL OFFI 850 413 5313 P.e3 O42 miei te. Counsel. The Applicant acknowledges the right to retain independent counsel and has either o! its own counsel or voluntarily waived the right to counsel. The Applicant further acknowledges that Agency counsel represents solely the Agency and that Agency counsel has not previded any legal advice to, or influenced, the Applicant in the voluntary decision to enter into this Agreement. _ & Agreement. Thi: Agreement contains the entire understandings of both parties. This Agreement supersedes any prior oral or written agreements thet may have existed between tho parties, This ent may not be amended by either party except in writing. 9 of Agreement. Both parties agree that an electronic signature suffices for an cal shut htm ene o fine copy efi ania ees a tht i Agreement may be executed in counterparts. This Agreement shal] be effective upon full execution by all parties and adoption into a Final Order. After full cxecution of this Agreement, the Agency will enter a Final Order adopting this Agreement and closing the case. . The following representatives have read and understand this Agrecment, are signing it freely and voluntarily, and ainowledge that they are authorized to enter into this Agreement. f. Bew ny B n, oe Florida Bar No. 0087748 Williams Parker Harrison Dietz & Getzen 200 South Orange Avenuc Sarasota, Florida 34236 DATED: 12 “/7 “h 2727 Maban Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: |° il aan Page 2 of 2 TOTAL P.@3
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four Parts. He failed Part I dealing with the laws and rules of the state of Florida as well as Part IV the clinical practical, or hands-on, part of the examination. He passed Parts II and III of the examination. In 1983 the Florida legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner retook Part I covering the laws and rules of the state of Florida and passed that Part of the examination. He also took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section of the examination. In July, 1985, Petitioner retook Part III of the acupuncture examination. This time he was required to take both the written practical section and the clinical practical section of Part III. This time he passed the clinical practical section but failed the written practical section. Respondent notified Petitioner that he had failed the practical Part of the 1985 acupuncture examination by failing the written practical section.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 25th day of April, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986. COPIES FURNISHED: Sheldon L. Gottlieb, Esquire 10700 Caribbean Boulevard Suite 207 Miami, Florida 33189 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Conclusions 1. The STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA”), was notified by Centers of Medicare & Medicaid Services that the Medicare billing number for the above-referenced provider was revoked April 28, 2010. 2. In accordance with Section 409.913(14) if a provider has been suspended or terminated from participation in the Medicaid program or the Medicare program by the Federal Government or any other state, the agency must immediately suspend or terminate, as appropriate, the provider’s participation in the Florida Medicaid program for a period of no less than that imposed by the Federal Government or any other state, and may not enroll such provider in the Florida Medicaid program while such foreign suspension or termination remains in effect. 3. On April 13, 2012, AHCA issued a letter to Respondent, terminating the Respondent’s participation in the Medicaid program. See ATTACHMENT A. AHCA v. C.A.D.C. Corp., d/b/a Miracle Rehab Center (C.1. No: 12-2049-000) Final Order — Page 1 of 4 Filed September 25, 2012 3:12 PM Division of Administrative Hearings A & 33 4. On May 14, 2012, C.A.D.C. CORP., d/b/a MIRACLE REHAB CENTER, (“Respondent”), filed The Request for a Formal Hearing concerning Miracle Rehab Center, with the Division of Administrative Hearings. See ATTACHMENT B. 5. On June 18, 2012, Respondent received a favorable CMS revocation appeal decision. As such, the underlying cause of action which precipitated Florida Medicaid to terminate Respondent is moot, or the revocation was overturned on appeal. See ATTACHMENT C. 6. On July 12, 2012, AHCA issued a letter to Respondent, rescinding the sanctions in the above-styled matter. See ATTACHMENT D. 7. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this ao* day of opheol , 2012, in Tallahassee, Florida. ; lizabeth ee Secretary Agency for Health Care Administration AHCA v. C.A.D.C. Corp., d/b/a Miracle Rehab Center (C.1. No: 12-2049-000) Final Order — Page 2 of 4 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Christopher A. Parelia, Qualified Representative The Health Law Offices of Anthony C. Vitale, P.A. 2333 Brickell Avenue Suite A-1] Miami, Florida, 33129 Telephone: (305) 358-4500 Facsimile: (305) 358-5113 Email: CParrella@vitalehealthlaw.com (Via Facsimile and Email) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (interoffice Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Florida Department of Health Medical License #299992712 (Via Email Only) AHCA v. C.A.D.C. Corp., d/b/a Miracle Rehab Center (C.1. No: 12-2049-000) Final Order — Page 3 of 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by facsimile and email, or the method designated, on this the Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 AHCA vy. C.A.D.C. Corp., d/b/a Miracle Rehab Center (C.1, No: 12-2049-000) Final Order — Page 4 of 4
The Issue Whether Kuan-Chu Kuo's application to take the acupuncture examination should be granted or denied.
Findings Of Fact On August 31, 1981, Applicant applied to take the state acupuncture examination administered by the Department. She sought to qualify by reason of her education, indicating that she attended Shanghai Medical College, Shanghai, China, from 1944 to 1950; and that she received her acupuncture education at the Chinese Academy of Medical Science of Jsinan, Shandung, China. (R-1, P-1.) To qualify by reason of education, an applicant must submit a certificate of the dean or director of the acupuncture school which granted the degree. In satisfaction of that requirement, Applicant submitted a certificate, under seal, of the Shanghai Medical College, dated August 11, 1979, which translated under oath reads: Kuo Kuan-Chu, born in Fukien, age 53, was graduated from Shanghai Medical College (6 years curriculum) in 1950. She was with the Shanghai Medical College from Septem- ber 1944 to July 1950. (R-1, P-2.) At Shanghai Medical College from 1944 to 1950, Applicant successfully completed a curriculum including such courses as anatomy, biochemistry, physics, acupuncture, Chinese medicine, surgery, pediatrics, internal medicine, radiology, obstetrics/gynecology, opthalmology, neurology, dermatology, physiology, microbiology, pathology, gross anatomy, epidemiology, and pharmacology. She attended classes six-to-eight hours a day during the first four years; during the last two years of study, she worked in a hospital practicing Chinese medicine, including acupuncture, under the supervision of a resident physician. (Testimony of Kuan-Chu Kuo; P-8.) From 1960 to 1964, she studied at the Academy of Medical Science of Jsinan in Shandung, China. During that five-year program, she investigated the use of acupuncture to treat complications from radiotherapy. She authored several chapters in a textbook on practical gynecology. (Testimony of Kuan-Chu Kuo; R-1.) On February 10, 1982, Applicant supplemented her application by submitting a Certification, dated November 23, 1981, from the president of the Academy of Medical Science of Jsinan. The Certificate states: Dr. Kuo Kuan-Chu had acupuncture education at Jsinan Hospital from 1960 to 1964. She had fulfilled all the Chinese medicine and acupuncture courses and completed her clinical experiences, a thesis was published in Jsinan medical journals. (R-1.) Applicant has been certified by the Educational Commission for Foreign Medical Graduates as qualified to take an examination which would qualify her to take the Florida medical board exam. To obtain such certification, she was required to show that she completed at least four credit-years at a medical school listed in the "World Directory of Medical Schools." (Testimony of Kuan- Chu Kuo; P-5.) In 1979, Applicant was invited to the United States to observe the operations of the University of Miami's Department of Obstetrics and Gynecology. (Testimony of Kuan-Chu Kuo.) According to Jun Wu Xue, M.D., a visiting scholar from China, Shanghai Medical College is one of the most advanced colleges of higher learning in China. He testified that a course of "Medicine of Motherland," including Chinese traditional medicine and acupuncture, is taught at Chinese medical colleges. (Testimony of Jun Wu Xue.) But, Applicant indicated on her application that she received her acupuncture education at the Academy of Medical Science of Jsinan. No detailed information was presented on the courses at the academy, its faculty, and its current accreditation status. On September 22, 1981, the Department wrote Applicant requesting, among other things, an official transcript from her medical school. It relied on Rule 21-12.03, Florida Administrative Code, as providing authority for its request. Chapter 21-12 was filed with the Department of State on September 18, 1981. Applicant has been unable to supply the requested transcript because she attended medical school before the Chinese civil war. Institutional records, such as those kept at medical schools, were lost or destroyed by the war. (Testimony of Kuan-Chu Kuo; R-1.) On September 22, 1981, the Department also wrote the Chinese Academy of Medical Science of Jsinan and asked for their latest catalog of courses and their description, a list of their current faculty members and their curriculum vitae, the name and location of their educational and/or governmental accrediting agency, a copy of their latest accrediting report, and a clearly defined course of study for acupuncture. This request for documentation was made pursuant to the procedure prescribed in Rule 21-12.08 a new rule adopted for evaluating and approving acupuncture schools. As of the date of hearing, the academy had not responded to the Department's request. (R-1.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the application of Kuan-Chu Kuo to take the acupuncture examination be denied. If and when the Department approves the acupuncture school attended by Applicant, she should be allowed to take the examination without further delay. DONE AND RECOMMENDED this 23rd day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 23rd day of March, 1982.
Findings Of Fact The PROVIDER received the Notice of Sanction that gave notice of PROVIDER’S right to an administrative hearing regarding the fine. The PROVIDER filed a petition requesting an administrative hearing, and then caused that petition to be WITHDRAWN, and the administrative hearing case to be CLOSED. PROVIDER chose not to dispute the facts set forth in the Notice of Sanction, dated February 18, 2010. The facts alleged in the Notice of Sanction are hereby deemed admitted. The Agency hereby adopts the facts as set forth in the Notice of Sanction, including the fine in the amount of $2,000.00, which is now due and owing, from PROVIDER to the Agency.
Conclusions THIS CAUSE came before the undersigned for issuance of a Final Order on a Notice of Sanction, dated February 18, 2010 (C.I. No. 10-1061-800). By the Notice of Sanction, the AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “Agency”), informed the Respondent, ACE HOME HEALTH SERVICES, CORP., (“PROVIDER”), that the Agency was seeking to recover a fine in the amount of $2,000.00 for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code. The Notice of Sanction provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the sanction. On or about March 8, 2010, the PROVIDER filed a petition with the Agency, requesting a formal administrative hearing. The Agency forwarded PROVIDER’S hearing request to the Division of Administrative Hearings (“DOAH”) for a formal administrative hearing. On May 24, 2010, the PROVIDER filed a Notice of Withdrawal of Petition for Formal Hearing with DOAH, providing notice of withdrawal of its AHCA vy. Ace Home Health Services, Corp. (DOAH #10-001581) Final Order - Page 1 of 4 Filed June 22, 2010 3:14 PM Division of Administrative Hearings. previously filed Petition for Formal Hearing, and requesting that the matter be returned to the Agency for disposition, On May 25, 2010, DOAH closed its case file on this matter and relinquished jurisdiction to the Agency.
The Issue The issue is whether the examination, its administration, or its grading were arbitrary or capricious.
Findings Of Fact Su-Jung Shiuey sat for the acupuncture licensure examination on July 18 through 20, 1986, in Orlando, Florida. The examination included a requirement for candidates to demonstrate practical clinical skills including sanitation, needling technique, and point location. A passing score of 70 on the clinical practical portion of the examination is required of candidates. Su-Jung Shiuey failed to locate four points in the point location portion of the examination. See Respondent's exhibits 3 and 4. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Su-Jung Shiuey failed to demonstrate proper needling techniques. See Respondent's exhibits 2 and 3. No evidence was presented that this portion of the examination was not fair or was not graded fairly. Each of the examiners was a licensed acupuncturist in Florida. Each of the examiners worked with a co-examiner, and all examiners are required to score candidates independently. Each of the examiners' grade sheets for these two portions of the examination made the same findings and similar observations. Su-Jung Shiuey received 66 points on the clinical practical portion of the examination and was denied licensure. Su-Jung Shiuey presented no independent testimony or evidence to discredit the qualifications of Respondent's witnesses or evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Dr. Su-Jung Shiuey's request for increased score, or reexamination without fee, should be DENIED. DONE AND ORDERED this 9th day of January, 1987, in Tallahassee, 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 9th day of January, 1987. COPIES FURNISHED: Dr. Su-Jung Shiuey (Petitioner's husband) 331 Bloomfield Avenue Nutley, New Jersey 07110 Jeffrey H. Barker, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 66.9%, with 241 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2803 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
