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 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
The Issue The issues in this case are whether Respondent violated Subsections 456.072(1)(gg), 456.072(1)(y), and 460.413(1)(q), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of chiropractic medicine pursuant to Chapters 20, 256 and 460, Florida Statutes. Dr. Guerriero is a licensed chiropractic physician with the State of Florida, having been issued license number CH 6373 on or about August 21, 1991. The Professional Resource Network (PRN) is the impaired practitioners program for the Board of Chiropractic Medicine pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired healthcare professionals. PRN oversees random drug screens and provides for the exchange of information between treatment providers and the Department for the protection of the public. On or about October 26, 2005, Dr. Guerriero was admitted to the Center for Drug Free Living, Inc., for detoxification related to opiate and benzodiazepine use. On October 31, 2005, he self-reported to PRN that he was discontinuing the use of benzodiazepines and opiates prescribed by his doctor and that he had entered the Center for Drug Free Living, Inc., to be weaned from these prescription medications. PRN arranged for Dr. Guerriero to be evaluated by Chowallur Dev Chacko, M.D. (Dr. Chacko), who is a psychiatrist. The evaluation was made to determine whether Dr. Guerriero's addiction problems prevented him from practicing chiropractic medicine with reasonable skill and safety to patients. Dr. Chacko saw Dr. Guerriero on November 7, 2005. Dr. Guerriero admitted to continuing the use of prescription medications containing opioids and benzodiazepines after his recent detoxification. Dr. Chacko diagnosed Dr. Guerriero as having opioid and benzodiazepine dependence, as well as suffering from alcohol abuse. It was Dr. Chacko's opinion that Dr. Guerriero was not able to practice chiropractic medicine with reasonable skill and safety. He recommended that Dr. Guerriero receive inpatient substance abuse treatment. After PRN received the evaluation performed by Dr. Chacko, there were several unsuccessful attempts to contact Dr. Guerriero. However, Dr. Guerriero did talk with his case manager on December 16, 2005, to discuss options for treatment. Dr. Guerriero maintained that he could not afford the inpatient treatment. His case manager informed him that one option would be an intensive outpatient program with no less than nine hours a week of therapy. During the therapy, Dr. Guerriero would not be allowed to practice chiropractic medicine. After the treatment was completed, Dr. Guerriero would be required to be evaluated to determine if he could practice chiropractic medicine with reasonable skill and safety to patients. Dr. Guerriero did not provide PRN with any evidence that he had completed any treatment program. PRN received no further contact from Dr. Guerriero until May 2, 2006. Dr. Guerriero indicated that he wanted to get a second opinion. On July 31, 2006, Martha E. Brown, M.D. (Dr. Brown), who is board-certified in psychiatry and addiction psychiatry, saw Dr. Guerriero for an evaluation. During the evaluation, Dr. Guerriero indicated that he was taking Dalmante, which had been prescribed for him as a sleep-aid. He admitted to drinking from one-to-two glasses of wine three times a week. Dr. Guerriero was given a drug test during the evaluation, and he tested positive for alcohol, opioid, and benzodiazepine use. Dr. Brown's diagnosis of Dr. Guerriero was that he was alcohol dependent, opiate dependent, and sedative hypnotic dependent. It is Dr. Brown's opinion that Dr. Guerriero cannot practice chiropractic medicine with reasonable skill and safety. She recommended that he enter a detoxification program and then a residential long-term treatment program, that he see a pain management specialist to look at his pain issues, that he see a psychiatrist acceptable to PRN to help him with his sleep difficulties, that he abstain from all mood altering substances including alcohol, and that he be in PRN for long-term monitoring. Dr. Guerriero did not provide PRN with proof that he had completed an inpatient program. He did not execute a contract with PRN. PRN sent Dr. Guerriero contracts to sign, but the contracts were returned as unclaimed. The last contact that Dr. Guerriero had with PRN was on August 31, 2006. Jerome M. Gropper, D.D.S. (Dr. Gropper), is a clinical network coordinator at PRN. He is a practicing dentist and has a master's degree in counseling. Based on his review of the PRN file of Dr. Guerriero, he is of the opinion that Dr. Guerriero could not practice chiropractic medicine with reasonable skill and safety and that Dr. Guerriero will need long-term residential treatment before he could safely return to practice. Based on the opinions of Drs. Chacko, Brown, and Gropper, Dr. Guerriero cannot practice chiropractic medicine with reasonable skill and safety to his patients due to his dependence on drugs and alcohol. In order to be able to return to practice chiropractic medicine, Dr. Guerriero will need long- term residential treatment and will need to enter into a monitoring contract with PRN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Guerriero violated Subsections 456.072(1)(y), 456.072(1)(gg), and 460.413(1)(q), Florida Statutes; imposing a $1,000 administrative fine; and suspending his license until such time the following conditions are satisfied: Dr. Guerriero executes a PRN advocacy contract, Dr. Guerriero successfully completes a six-month period in which he complies with all of PRN's treatment recommendations, PRN appears before the Board and advocates for Dr. Guerriero's return to active practice during a Board meeting in which Dr. Guerriero is present, and (4) the Board determines that Dr. Guerriero is able to practice with reasonable skill and safety. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of May, 2007.
Findings Of Fact The Department of Professional Regulation is authorized by law to administer the acupuncture examination. The Petitioner, Michael Dechang Zeng, requested an administrative hearing to consider whether he should have received a passing grade on the August 1982 acupuncture examination. This formal hearing was noticed on April 21, 1983, and copies provided the Petitioner and Respondent by mail in accordance with the provisions of the applicable statutes and rules. The records does not reflect that the notice provided to the Petitioner was returned, as is the procedure of the Division of Administrative Hearings, and the record does not reflect that the Petitioner requested any continuation of the proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the grade received by the Petitioner on the August 1982 acupuncture examination be confirmed and approved. DONE AND ORDERED this 3rd day of August 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 3rd day of August 1983. COPIES FURNISHED: Mr. Michael Dechang Zeng 1017 East Broad Street Tampa, Florida 33604 Drucilla E. Bell, 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
The Issue The issue is whether Samuel Yu was properly graded for his performance on the acupuncture license exam given July 18, 1986, for the location of acupuncture point Ren. 17 Shanzhong.
Findings Of Fact Samuel C. Yu took the acupuncture examination administered by the State Board of Acupuncture on July 18-20, 1986. The examination includes demonstration of practical clinical skills. Dr. Yu received a failing grade for the practical clinical portion of the examination. He challenged the method by which his performance on the clinical examination was graded. If given credit for the location of the point at issue, he would have passed the examination. In the clinical portion of the examination the candidates are required to locate certain acupuncture points on a person who serves as a model for the examination candidates. A committee of examiners locates the points on the body of the model and, after consultation, marks the point with ink which is invisible except under ultra violet light. Candidates do not actually insert needles at those points during the examination, but are required to place small adhesive dots at the point location. That placement is evaluated by illuminating the area with ultra violet light. If more than half the surface of the adhesive dot is within the point location established with the ultra violet ink, the candidate receives credit for the exercise. If more than 50 percent of the dot is outside of the pre-marked point, no score is given. The examiners who evaluated Mr. Yu both agreed that he did not correctly identify point Ren. 17 Shanzhong. The Board of Acupuncture had not taken photographs of Mr. Yu's or any other candidates performance. The evidence about Mr. Yu's examination performance was established through oral testimony of Examiner R. Yang. Although Dr. Yu demonstrated that three of the textbooks recommended by the Board of Acupuncture describe the point Ren. 17 Shanzhong somewhat differently, the variations are not great, and the tolerance area which the examiners establish is sufficiently large so that a minimally competent candidate would be able to locate point Ren. 17 Shanzhong. The collegial decision of three expert acupuncturists to locate the point on the examination model and choose a further tolerance area provides candidates who have minimal skills a fair opportunity to demonstrate their abilities. The method of administration of the examination in general, and with respect to the grading of Dr. Yu's performance in particular, was fair and valid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the petition of Samuel C. Yu for regrading of his preformance on the acupuncture practical licensure examination be DISMISSED. DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 16th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4050 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner The filing made by Mr. Yu constitutes a recitation of evidence and argument, but not findings of fact. Consequently, no rulings on the proposals can be made. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Rejected as a recitation of evidence. Generally covered in Finding of Fact 6. Covered in Finding of Fact 8. Not adopted as unnecessary. Covered in Finding of Fact 8. To the extent necessary, covered in Finding of Fact 8. Rejected as unnecessary. COPIES FURNISHED: Mr. Samuel C. Yu 628 Lock Road Deerfield Beach, Florida 33442 Jeffrey H. Barker, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Marcelle Flanagan, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Petitioners have alleged facts sufficient to prove their standing to challenge the Respondent's proposed amendment to Rule 21-18.002, Florida Administrative Code?
Findings Of Fact The Florida Society of Opthalmology, Inc., Emanuel Newmark, M.D. and Waite S. Kirkconnell, M.D)., filed a Petition to Determine The Invalidity of a Rule (hereinaffter referred to as the "Petition"), with the Division of Administrative Hearing on May 29, 1990. In the Petition the Petitioners challenged the validity of a proposed amendment to Rule 21-18.002, Florida Administrative Code (hereinafter referred to as the "Rule Amendment"). The Rule Amendment was filed with the Secretary of State on March 3, 1990, with the Rule Amendment to take effect on May 7, 1990. The Rule Amendment allows licensed, certified optometrists to administer and prescribe certain Steroids and certain Steroid/Sulfonamide combinations. It is alleged in the Petition that the Petitioner, Florida Society of Ophthalmology, Inc. (hereinafter referred to as "FSO"), is: a Florida not-for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians, specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of Florida ophthalmologists, improve quality of health care administered to the public, and to educate the public to its needs for adequate health care. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. Pages 1 and 2 of the Petition. The following allegations concerning Dr. Newmark and Dr. Kirkconnell are included in the Petition: That Petitioner, DR. NEWMARK, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. NEWMARK maintains an office for the practice of medicine in Atlantis, Florida. Petitioner, DR KIRKCONNELL, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. KIRKCONNELL maintains an office for the practice of medicine in Tampa, Florida. Both physicians specialize in the field of ophthalmic medicine or ophthalmology. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. 3. That Petitioners DR. NEWMARK and DR. KIRKCONNELL file this Petition on behalf of themselves and all other persons similarly situated; i.e., licensed Florida physicians practicing ophthalmic medicine in the State of Florida. These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. Page 2 of the Petition. The Petition contains two Counts challenging the Rule Amendment. In support of the Petitioners' standing, the following allegations are contained in Count I: That the Rule Amendment purports to authorize the practice of medicine by persons who are not licensed to practice medicine by chapters 458 and 459, Florida Statutes, thereby adversely affecting Petitioners' property right to practice medicine. That Petitioners are concerned with protection of the public by ensuring that persons engaged in the various health care professions are qualified to do so, and Petitioners believe that the Rule Amendment with illegally authorize certified optometrists to adversely affect the public health through utilization of drugs which they are not qualified to prescribe, administer or monitor. Page 5 of the Petition. In Count II of the Petition, allegations almost identical to paragraph 17 of the Petition are made. On June 13, 1990, the Intervenors filed Intervenors' Motion to Dismiss. On June 27, 1990, the Petitioners filed Petitioners' Response to Respondent's [sic] Motion to Dismiss. On June 28, 1990, the Petitioners filed Amendment to Petitioners' Response to Respondents' [sic] Motion to Dismiss correcting the title of the Motion and correction of a citation to a court decision contained in the Motion. In the Petitioners' Response to Respondent's [sic] Motion to Dismiss the Petitioners state the following: The pleadings allege adequate facts in the following paragraphs from the petition: ".... improve quality of health care administered to the public, and to educate the public to its needs for adequate health care . . . .... Many of Petitioners' patients also visit optometrists for some of their vision care needs .... .... These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. The Petitioners also quoted paragraphs 17 and 26 of their Petition. Pursuant to written notice a motion hearing was held on July 3, 1990, to consider the Intervenors' Motion to Dismiss and other motions previously filed by the parties. Following oral argument of the parties, the parties were informed that the Intervenors' Motion to Dismiss would be granted. The FSO and the individual ophthalmologists in Board of Optometry v. Society of Ophthalmology, 538 So. 2d 878 (Fla. 1st DCA 1989), cert. denied, 545 So. 2d 1367 included the following allegations of fact concerning their standing in their Petition in that case: 1. Petitioner FSO is a Florida net- for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians (M.D.'s and D.O.'s) specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of the Florida ophthalmologists. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. In addition to the representation of its members, FSO is committed as an organization to protecting, maintaining and improving the quality of eye care which is available to the public. 3. Petitioners Broussar, Patrowicz, and Byerly are physicians licensed by the State of Florida pursuant to Chapter 458, Fla. Stat. Broussard maintains an office for the practice of medicine in Melbourne, Florida; patrowicz in Mount Dora, Florida; and Byerly in Tallahassee, Florida. Each physician specializes in the field of ophthalmic medicine opthalmology. Ophthalmology consists of the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery and corrective lens and prisms. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. . . The following allegations were included in the petition in Board of Optometry, concerning the substantial affect on the FSO and the individual opthalmologists: The physician Petitioners and a substantial number of the members of the association Petitioners are substantially affected by the Board's proposed certification of any optometrist as a certified optometrist in the following ways: Petitioners believe that the certification of optometrists, and the concomitant authorization of such certified optometrists to use and prescribe medications in their practice of optometry encroaches on the right of physicians licensed to practice medicine pursuant to Chapter 458, Fla. Stat. The right to practice medicine is a valuable property right in Florida, and subject to the protection of the due process clauses of the Florida and United States Constitutions. Petitioners have been denied due process in regard to the impending infringement on or diminution in value of their property rights. Petitioners also believe that the quality of eye care and health care available to the public will decline as optometrists are certified to use and prescribe medicine in the practice of optometry. Petitioners believe that allowing optometrists to administer and prescribe drugs presents a danger to the public, including but not limited to Petitioners' patients. Petitioners believe that the general public is uninformed as to the distinction between optometrists and ophthalmologists, when in fact significant differences exist in education, training, ability, experience, and scope of practice. The designation of some optometrists as "certified optometrists" further adds to the confusion and will result in the treatment by optometrists of patients who should be treated by Physicians. This not only will result in economic injury to physicians, including the. physician Petitioners and all other similarly situated, but also in injury to their practices, loss of public respect for their profession, and to the health and welfare of Petitioners' patients and the patients of other similarly situated physicians.
The Issue The issues for resolution, as provided in an Order Finding Probable Cause dated March 11, 1992, are whether Respondent, as a member of the State Board of Acupuncture: violated section 112.313(7)(a), F.S., by having an employment or contractual relationship with The Healing Center which created a continuing or frequently recurring conflict between his private interest and the performance of his public duties; and violated section 112.3143(2), F.S. by voting on a measure which inured to his or his wife's special private gain without disclosing the nature of his interest in the matter.
Findings Of Fact Harvey Kaltsas served on the Board of Acupuncture from February, 1987 through April 3, 1991. As a member of the Board of Acupuncture, his duties included regulation of the practice of acupuncture, and the promulgation of rules to implement Chapters 455, 457, and 120, Florida Statutes. Mr. Kaltsas has been a licensed acupuncturist in the State of Florida since 1984, and was registered as an apprentice prior to licensure. Since 1989, Harvey Kaltsas has been married to Cynthia O'Donnell, who is the sole officer and shareholder of a business, The Healing Center, Inc., which was incorporated in April of 1989. In addition to providing other health services, The Healing Center, Inc. has sold sterile, disposable acupuncture needles since October, 1990. Gross sales of needles have averaged one to two thousand dollars per month from October 1990 until the present. Harvey Kaltsas was not and is not a shareholder or stockholder in The Healing Center, Inc. Harvey Kaltsas has had no interest in The Healing Center, Inc. At all times pertinent to the complaints at issue, The Healing Center, Inc. was located at 430 North Tamiami Trail, Suite C, Sarasota, Florida 34236. The lease for such property remained in the name of Harvey Kaltsas during this period. Although Harvey Kaltsas was ultimately responsible for lease payments on the property, lease payments were made by The Healing Center, Inc. to the landlord. Harvey Kaltsas, as well as other tenants of the property, paid rent to The Healing Center, Inc. The utilities account for the leased property was in the name of Harvey Kaltsas. Although he was ultimately responsible for utilities payments, such payments were made by The Healing Center, Inc. From April, 1989 through December 1990, Harvey Kaltsas was both a tenant of and an independent contractor with The Healing Center, Inc. As a tenant, Mr. Kaltsas paid rent of approximately $300.00 per month to The Healing Center, Inc. As an independent contractor, Mr. Kaltsas performed thermographic examinations on several patients of The Healing Center, Inc. These services were performed from time to time on an ad hoc basis. For these services, Mr. Kaltsas received $3625.00. No contract existed between Mr. Kaltsas and the Healing Center, Inc., regarding performance of these services. Other individuals provided similar thermographic services. On January 1, 1991, Harvey Kaltsas became a salaried employee of The Healing Center, Inc. At the time he vacated his seat on the Board of Acupuncture in April 1991, he was still a salaried employee of The Healing Center, Inc. On December 14, 1990, Harvey Kaltsas moved for consideration of, and voted for, an amendment to Rule 21AA-8.002, Florida Administrative Code, which would have required all licensed acupuncturists in the State of Florida to use only sterile, disposable acupuncture needles. The matter had been raised in an earlier meeting of the board by Luis Celpa, another acupuncturist member. The proposed amendment to Rule 21AA-8.002, Florida Administrative Code, was noticed and published in the Florida Administrative Weekly on February 15, 1991 (Vol. 17, No. 7, p.645). The proposed amendment deleted existing language with regard to sterilization procedures and substituted language requiring disposable needles for one-time use only. The proposed ruled was subsequently withdrawn by the Board of Acupuncture and never became effective. The Joint Administrative Procedures Committee challenged the authority for the rule since Chapter 457, F.S. provides for resterilization of needles. Prior to voting on the measure to amend Rule 21AA-8.002, Florida Administrative Code, Mr. Kaltsas did not disclose to the Board of Acupuncture his interests in or relationship with The Healing Center, Inc. On or about March 7, 1991, The Healing Center, Inc. mailed a letter signed by Cynthia O'Donnell-Kaltsas to licensed Florida acupuncturists advising them of the proposed rule change requiring the use of sterile, disposable needles and offering such needles for sale at a discounted price. Ms. O'Donnell was aware of the board's action, and the letter was mailed after publication of the proposed rule change in The Florida Administrative Weekly. After the rule was withdrawn Ms. O'Donnell sent a follow up letter stating that the rule did not go through and apologizing for any misinformation. Even though she does not use the husband's name, Ms. O'Donnell signed the letters, "O'Donnell-Kaltsas", as her husband had been president of the Florida Acupuncture Association and she was raising money for the association with a 2 percent contribution from needle sales. There are a significant number of potential vendors offering sterile, disposable needles for sale to Florida practitioners of acupuncture. There are a minimum of at least fifteen such vendors in Florida, as well as a minimum of eleven practitioners who sell needles. In addition, Chinese practitioners have direct access to needle suppliers in China from whom they can purchase needles. Florida practitioners receive solicitations from needle vendors across the country and from needle vendors located in Canada, England, Taiwan and Hong Kong. There are no barriers to interstate sale and shipment of needles into the State of Florida by any company or person. The Board of Acupuncture does not regulate the sellers of acupuncture needles. No barriers to entering this market have been established by the Board of Acupuncture. The Board does not license persons or entities which sell needles, nor does it inspect facilities of such persons or entities. The Board does not regulate the types of needles which can be sold, nor does it subject sellers of needles to any kind of disciplinary action. For all intents and purposes, Mr. Kaltsas and his wife maintain separate financial identities. They maintain separate bank accounts, with the exception of a $30.00 credit union account. They do not have signing privileges on each other's banking accounts. In business transactions involving The Healing Center, Inc., Mr. Kaltsas did not receive any special consideration with respect to the amount of rent or with respect to making of rent payments. Although the couple resides in a house owned by Ms. O'Donnell, Harvey Kaltsas makes payments to her to offset the household expenses. There is no evidence that the vote of December 14, 1990 regarding the proposed attachment to Rule 21AA-8.002, Florida Administrative Code, inured to the special private gain of Mr. Kaltsas or to the special private gain of Cynthia O'Donnell. There is no evidence that any matter came before the Board of Acupuncture on a continuing or frequently recurring basis which created a conflict between Mr. Kaltsas' private interests and the performance of his public duties. The sterile, disposable needle rule was formally addressed on two occasions while Mr. Kaltsas was on the Board; it was approved by the Board on December 14, 1990; and it was subsequently withdrawn by the Board on April 3, 1991. Most acupuncturists use disposable needles already. The low cost of such needles compared to the cost of effective sterilization created a legitimate concern for the safety and welfare of the needle handlers and their patients. This concern, rather than any private interest or benefit motivated Harvey Kaltsas' action as a board member.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the Commission on Ethics enter its final order and public report finding that Harvey Kaltsas did not violate Sections 112.3143(2), Florida Statutes (1989) and 112.313(7)(a), Florida Statutes, as alleged, and dismissing the complaints. DONE AND ORDERED this 31st day of August, 1993, in Tallahassee, Florida. MARY CLARK 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 31st day of August, 1993.
