The Issue Whether the Petitioner is entitled to be licensed as a physician assistant.
Findings Of Fact Petitioner sat for the physician assistant licensure examination administered by Respondent October 6 - 9, 1995. Petitioner passed all portions of the examination except for the “Clinical Exam” part of the examination. Because he did not pass the Clinical Exam, Petitioner failed the licensure examination. Thereafter, Petitioner requested the opportunity to review the scoring of his examination and the video that was made of the performance. Petitioner was given ninety minutes for that review. The clinical exam required the candidate to physically examine “patients” with stated vital signs and presenting symptoms. The “patients” were healthy models. The candidate's examination of each patient was closely viewed by two examiners who separately graded various components of the candidate’s performance. The performance was video taped. The video tape included audio so that the verbal instructions to the candidate and the candidate's explanation of his examination could be heard. The Petitioner challenged the scoring of 17 components of the examination. Upon review of Petitioner’s challenge, Respondent gave him additional credit for 10 of the challenged components. That additional credit raised his score from 425 to 500, still short of the 600 points needed for a passing grade. Respondent established that Petitioner was given all the credit he deserved for his performance on the clinical examination. Even if Respondent had given additional credit for all 17 components he challenged, the Petitioner would not have achieved a passing score. This test was not arbitrary or capricious. The questions used were consistent with the instructions given the candidates and similar in nature to those used in other clinical examinations. Petitioner failed to establish that he was entitled to additional credit for his performance on the Clinical Exam portion of the physician assistant licensure examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s challenge to the scoring of his performance on the clinical exam portion of the physician assistant examination administered in October 1995. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1997
The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement. Specific to the grounds for denial are the issues of whether Petitioner is of good moral character and whether he is able to practice with skill and safety.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Norman M. Phillips, M.D., is a graduate of St. George's University School of Medicine, Grenada, West Indies, a foreign medical school. Petitioner holds a certificate from the Educational Commission on Foreign Medical Graduates (ECFMG) and has passed the ECFMG examination. Petitioner obtained a passing score on the licensing examination of the Federation of State Medical Boards of the United States, Inc. (FLEX). Petitioner is licensed to practice medicine in New Jersey. Petitioner is over 21 years of age. Petitioner has completed at least one year of an approved residency. The Petitioner has not committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician, pursuant to Section 458.331(1) or (2), Florida Statutes. Petitioner applied for licensure by endorsement as a physician in Florida. On March 26, 1988, Petitioner appeared before the Credentials Committee of the Board regarding his application for licensure. The Credentials Committee recommended to the Board that Petitioner's application be denied. The basis for this recommendation was Petitioner's alleged inability to practice medicine with reasonable skill and safety due to a mental condition and his prior performance during his medical training. The recommendation also claimed Petitioner was not of good moral character. The Board adopted the recommendation of the Credentials Committee and issued an Order stating its intent to deny the Petitioner's application. Thereafter, Petitioner timely filed for an administrative review of the denial. After graduation from medical school, Petitioner was accepted into a residency program at St. Peter's Medical Center, New Brunswick, New Jersey. This program was in internal medicine and was to cover three years of postgraduate work. After the first year, Petitioner was evaluated and offered a contract for the second year of the program. Dr. Andrew L. Hahn was the program director of the internal medicine residency program. Dr. Hahn is an expert in the matter of residency training of medical students. Dr. Hahn evaluated Petitioner's performance as satisfactory. During the second year of the residency, Petitioner received an unfavorable evaluation which placed him on notice of a need to improve in order to receive a contract for the third year of the program. Petitioner ably made necessary corrections, improved his work performance, and, consequently, received a contract for the third year. After Petitioner had received notice of his contract for the third year, he was required to perform a rotation in radiology. This rotation was selected as it was the only available course given in the time period. While Petitioner would have preferred another topic, he accepted the assignment and agreed to the rotation. The rotation consisted of approximately three weeks of classroom lectures given at a location away from Petitioner's hospital assignments. After attending a few early sessions, Petitioner determined that he had already studied the subject matter of the course in medical school and that further attendance would not benefit him. Petitioner erroneously concluded attendance was not required. Instead of attending the rotation course lectures, Petitioner remained home studying other materials, performed his hospital duties, and made applications relating to future work. Petitioner's patients did not suffer as a result of the missed classroom sessions. Petitioner attended the clinic he was assigned to during the rotation period. When Petitioner's superiors were informed of the failure to attend the classroom sessions, they approached Petitioner for a satisfactory explanation which he was unable to provide. Since they (including Dr. Hahn) considered the failure to attend a serious breach of his professional responsibility, Petitioner was given the choice of either resigning his third year placement or being terminated. Petitioner agreed to resign his third year and was given a certificate for the two years he completed. At the time of his resignation Petitioner offered to repeat the classroom work but that option was rejected by Dr. Hahn. After resigning, Petitioner told his superiors that he had worked in a pharmacy (he is a licensed pharmacist) during the time he was supposed to have been in the radiology classes. He indicated he had done this because he needed money. Petitioner had not worked in a pharmacy, however, and had fabricated the story in a lame effort to excuse his nonattendance. Subsequently, Petitioner was interviewed by Dr. Bernard Sandler for a residency program in physical medicine and rehabilitation at the Robert Wood Johnson, Jr. Rehabilitation Institute of the John F. Kennedy Medical Center in Edison, New Jersey. Petitioner was accepted into the program and fell under the supervision of Dr. Thomas Edmund Strax. Petitioner successfully completed this program in December, 1987. Petitioner did not disclose the underlying facts of his resignation from the internal medicine program to either Dr. Sandler or Dr. Strax, however, neither physician questioned him at length about it either. Petitioner did not misrepresent any pertinent history; he simply did not volunteer embarrassing information. During his residency in rehabilitation, Petitioner was observed by Drs. Sandler, Harold Arlen, and Fazal Panezai. All of these physicians found Petitioner to be able to practice medicine with skill and safety. Petitioner did not exhibit any problem related to malfeasance or incompetence. Petitioner got along with staff and worked well with others. As a resident in the rehabilitation program, Petitioner was evaluated by Dr. Strax who determined that Petitioner would require improvement in order to meet the high standards Dr. Strax maintained for his course of study. Petitioner was able to make the necessary improvements and satisfactorily met Dr. Strax's objectives. Dr. Strax is an expert in the matter of residency training of medical students. Dr. Strax had an opportunity to review Petitioner's work on numerous occasions. Dr. Strax recommended Petitioner for licensure and - found him to be qualified and competent. Petitioner is presently employed as a physician at the Veterans Administration Medical Center in Miami, Florida. Petitioner is not required to be licensed in his present employment since such position is exempt from licensure. Petitioner's present supervisor is Dr. Dorothea Glass, Chief of Rehabilitation Services. Dr. Glass interviewed Petitioner and reviewed references Petitioner had given to her. Dr. Glass knows Dr. Strax who recommended Petitioner for the position which he currently holds. While Dr. Strax advised Dr. Glass to "keep an eye on him," Dr. Glass has done as she would with all young doctors. Dr. Glass has worked with Petitioner on a daily basis since February, 1988, and believes he is competent, hardworking and honest. Petitioner is able to practice medicine with skill and safety. Petitioner is of good moral character. Petitioner did not misrepresent material information when he appeared before the credentials committee.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Medicine enter a final order approving the application for licensure by endorsement for the Petitioner, Norman M. Phillips, M.D. DONE and RECOMMENDED this 30th day of May, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1989. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 9 are accepted. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 10 through 32 are accepted. Paragraphs 33 through 36, are accepted but are irrelevant to the issues of this case. Paragraph 37 is accepted. Paragraph 38 is rejected as speculation or argument. Paragraph 39 is accepted. Paragraphs 40 through 51 are accepted. Paragraph is rejected as irrelevant. Paragraphs 53 through 63 are accepted. To the extent addressed in findings of fact paragraph 21, paragraphs 64 through 68 are accepted. Paragraphs 69 through 71 are accepted. Paragraphs 72 through 73 are rejected as immaterial, recitation, or argument. Paragraphs 74 through 76 are rejected as recitation of testimony or argument. See findings of fact paragraph 20. Paragraph 77 is rejected as argument. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1 through 10 are accepted. Paragraph 11 is rejected as irrelevant to the extent that it refers to Petitioner's performance as "marginal." Petitioner was rated satisfactory and was permitted to continue. There were areas in which he required improvement, which he was able to correct. Paragraph 12 is accepted with the clarification that the radiology rotation was selected because it was the only one available to Petitioner at the given time. That portion of paragraph 12 which relates a fourth week work in the emergency room is rejected as contrary to the weight of credible evidence. With regard to paragraph 13, that portion which states Petitioner did not attend the classroom radiology rotation is accepted, the remainder is rejected as either unsupported by the record, contrary to the weight of the evidence, or irrelevant. To the extent addressed in findings of fact paragraphs 11-16, paragraphs 14 through 16 are accepted otherwise rejected as irrelevant or contrary to the weight of the credible evidence. It should be noted that any reference to emergency work deficiencies have not been credited nor are they supported by this record. Paragraph 17 is rejected as argument. Paragraph 18 is rejected as contrary to the weight of the credible evidence or argument. Paragraph 19 is rejected as argument, irrelevant, or immaterial to the issues of this case. Paragraph 20 is rejected as argument. Paragraph 21 is rejected as unsupported by the weight of credible evidence or argument. Paragraph 22 is accepted to the extent addressed In findings of fact paragraph 17; otherwise rejected as irrelevant or contrary to the weight of credible evidence. To the extent addressed in findings of fact paragraph 19, paragraph 23 is accepted. Paragraph 24 is accepted. Paragraph 25 is rejected as recitation of testimony, argument, or irrelevant. Paragraph 26 is accepted. Paragraph 27 is rejected as unsupported by the weight of the credible evidence, irrelevant, or argument. COPIES FURNISHED: Robert S. Turk VALDES-FAULI, COBB, PETREY & BISCHOFF, P.A. Suite 3400-One Biscayne Tower Two S. Biscayne Boulevard Miami, Florida 33131 Allen R. Grossman Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050
The Issue The issue in these cases is whether Petitioners are entitled to the Medicaid payments which they received or whether the claims filed by Petitioners were improper. At hearing Petitioners presented the testimony of Gary Allen Kitos; Joseph Namey, D.O.: Herbert Moselli; Robert Grenitz, M.D.; Mary Bone; Herbert Topol, D.O.; Sylvan Goldin, D.O.; and Mildred Martin. Topol Exhibits 1-3 and 5 were admitted in evidence. Goldin Exhibits 1-4, 6 and 7 were admitted in evidence. Topol-Goldin General Practice (GP) Exhibits 1-7 and 35-37 were admitted in evidence. The Department of Health and Rehabilitative Services (HRS) presented the testimony of Jules J. Cohen, D.O.; Morton T. Smith, D.O.; and Mildred Martin. HRS also presented the testimony by deposition of Lawrence E. Stivers and Michael W. Forsthoefel, M.D. HRS Exhibits 1-23 were admitted in evidence. Joint Exhibits 1-4 were also admitted, which include three inventory lists and four separate large boxes of patient records. The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix hereto and made a part hereof.
Findings Of Fact During 1932, Petitioners Goldin, Topol, and the Topol- Goldin General Practice Clinic were all operating out of the same facility but each billed Medicaid under a separate physician provider number. Medicaid is a joint state and federal program that is completely voluntary. In entering into a provider agreement with Medicaid, Topol, Goldin and the General Practice Clinic agreed to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and federal laws and regulations. Under the Medicaid Program, a state may limit the services provided for under federal regulations. As part of the requirements for participation in Medicaid, the State of Florida has a peer review process to monitor all providers. Peer review is a recognized process utilized by third party payors (such as Medicaid, Medicare and insurance companies) to assure that they are getting the services for which they are paying. Florida's Medicaid peer review process is modeled after the federal Medicare Program's process. In Florida approximately 7,000 physicians are enrolled in the Medicaid program at any one time. In order to monitor all of these physicians' practices, the Medicaid Program reviews those physicians whose practice exceeds the parameters of the average Medicaid physician's practice. Reviews of physicians' practices number between 60 to 85 physicians per year. Approximately 40-50% of those physicians reviewed are referred for peer review. The Medicaid review for physicians consists of a Level I review of the physician's activity in the program compared to the physician's peers. If the physician exceeds the upper limits in the Level I review, a desk review is done by medical consultants who review a "claims detail" of all claims for payment made by the provider. If further review is needed, a disproportionate stratified random sample (DSRS) of the physician's claims is obtained and the physician's patient records for those claims are obtained. The physician's records are first reviewed by a Medicaid physician consultant who determines if peer review is necessary. After a peer review is done, an in-house consultant does a line-by-line evaluation based on the peer review findings and medical necessity and makes a recommendation for denial of claims. Those claims denied are then converted into an amount of money for disallowance. The Medicaid program does not review physicians just because of the amount of money they make in the program. In September of 1981 the Medicaid Investigative Section requested updates on providers who had previously been investigated in 1977. Goldin, Topol, and the General Practice Clinic were among those providers. Cases for review were then opened for Goldin, Topol, and the General Practice-Clinic in 1982. A preliminary cursory review of the practices of Goldin, Topol, and the General Practice Clinic was prepared by a nursing consultant who recommended that the investigation go forward. During the same time period that the review of Goldin, Topol, and the General Practice Clinic was beginning, a separate review of a Medicaid recipient raised questions of pingponging (going from one doctor to another) between Drs. Topol and Goldin that would justify a further review of their practice. In February and March of 1983, Level II Review reports (desk analysis) were issued on Goldin, Topol, and the General Practice Clinic. These reports contained the Level I Reviews, documentation of the provider's 1982 Medicaid practice, complaints, conclusions, and recommendations. The Level I Review reports included in the Level II Review indicated those areas where the providers exceeded the upper limits of their peers. For example, Dr. Goldin averaged 1,998 Medicaid office visits per quarter compared to an average of 86 for other Medicaid physicians. Dr. Goldin's average exceeded two standard deviations above the average for his peers. The Level II Reviews concluded that the allegations of overutilization for Goldin, Topol, and the General Practice Clinic had been substantiated and it was recommended that they be referred to Peer Review. In March of 1983, a meeting was held to discuss these cases because of their complicated nature. At that meeting, Mildred Martin was instructed to proceed with Peer Review In preparing for Peer Review, disproportionate stratified random samples (DHRS) for Goldin, Topol, and the General Practice Clinic were obtained. A DSRS is the tabulation of the provider's activities or the amounts paid to him for each recipient during a specific period of time. It lists the recipients in ascending order of amounts paid to the provider. Total amounts of the payments made during the period are divided into five strata of the same or close to the same amounts of money. A DSRS is used to give an overall view of the physician's practice. On each DSRS the computer randomly picked 30 patients for a detailed review of their patient records. Because of the volume of practice of Goldin, Topol, and the General Practice Clinic, it would not have been fair to evaluate their entire practice using only 30 records. Therefore, HRS decided to review 7% of records of Topol and Goldin. The General Practice Clinic records were reviewed as randomly selected by the computer. In order to enlarge the sample to 7%, Ms. Martin utilized a random selection process employed by Medicare, which entailed selecting every third patient beginning from the bottom of each strata and working up until a 7% sample was achieved. This does mean that patients in the 7% samples represent the patients in each strata for whom the highest claims were made. When the same patient record appeared in two different samples, the next patient on the list was used to avoid duplication and disallowance of two of the providers for the same patient. The records selected for review were selected randomly and selected utilizing generally accepted statistical techniques. In June of 1983, Goldin, Topol, and the General Practice Clinic were requested to submit the records of those claims selected from the DSRS and the 7% sample process. When it was obvious that the records received were not complete, Ms. Martin contacted the offices of Goldin, Topol and the General Practice Clinic, requesting the missing records. Those records received from Goldin, Topol, and the General Practice Clinic were referred to the Florida Osteopathic Medical Association's (FOMA) Peer Review Committee along with information indicating the areas of concern and a letter of explanation from Dr. Goldin. The FOMA Peer Review Committee is an independent organization made up of approximately ten osteopathic physicians from various parts of the State of Florida. The FOMA contracts with third party carriers (Medicaid) to review peers. The cases supplied to the FOMA Peer Review Committee are reviewed and discussed and the committee issues its opinion on overutilization. The FOMA Peer Review Committee's findings are either no overutilization, minimal overutilization (5-20%) overutilization), moderate overutilization (20-50%) or excessive overutilization (over 50%). Upon receipt of the referral from HRS, the FOMA Peer Review Committee set up a meeting and invited Drs. Topol and Goldin. At that meeting held April 28, 1984, eight (8) physicians of the Peer Review Committee reviewed the charts and interviewed Drs. Topol and Goldin. The Peer Review Committee looked for a trend in the physicians' overall practice. The Peer Review Committee found that the records were poorly documented and difficult to read. The Peer Review Committee found that the patients were being seen more than medically necessary. It was a consensus of the members of the FOMA Peer Review Committee that there was moderate overutilization. By letters dated May 9, 1984, the FOMA Peer Review Committee notified Drs. Topol and Goldin and HRS of their findings. The medical records of Topo1 and Goldin were then sent to Dr. Michael Forsthoefel, M.D., for a line-by-line disallowance of services based upon the Medicaid rules and regulations and the Peer Review Committee's findings. Dr. Forsthoefel disallowed an amount of claims in the range of 30-35% which fell within the level of moderate overutilization (20-50%) determined by the Peer Review Committee, however, since Dr. Forsthoefel was an M.D. and not a D.O., HRS decided that in all fairness the determinations should be made by a D.O. who was a peer of the doctors being reviewed. The medical records of Topol and Goldin under review were-then sent to Dr. Morton T. Smith, D.O., for the line-by- line determination. In order to assure further fairness of the review, Dr. Smith was instructed not to review and disallow any claims by a physician that appeared on a record of the other physician being reviewed. As a result of the new review by Dr. Smith and the instructions given him, the total amount disallowed dropped to 16 or 17%. (The Transcript, p. 635, says 60-70%, but that is a typographical error and should read 16-17%). It is found that the peer review and the disallowances by Dr. Smith were reasonable and accurate. It was then necessary to apply the amount disallowed in the 7% sample to the overall Medicaid claims of Topol and Goldin. HRS performed this calculation by determining the average overpayment for the recipients in each strata sample and multiplying that average by the total number of recipients in each strata. However, because the samples were selected from those recipients in each strata with the highest claims (See Finding of Fact 32), the "average overpayment per recipient" method of extending the overpayments in each sample to the total population of claims is arbitrarily skewed. The result is that Topol and Goldin were exposed to liability greatly in excess of the total amount claimed. The more reasonable method for extending the overpayments in each sample to the total population of claims would be to determine the percentage of disallowed claims in each strata sample and to apply that percentage to the total paid in each strata. For example for Dr. Goldin in Strata I a total of $922 was paid and $30 was disallowed, or a 3.25% disallowance. Applied to the total paid in that strata of $21,600.28, a total overpayment for Strata I is shown to be $702.01. Using this method of calculation, it is determined that Dr. Goldin has been overpaid as follows: Strata I $702.01 (30/922 X 21,600.28) Strata II $2,957.64 (204/1490.92 X 21,620.18) Strata III $2,238.49 (274.24/2378.94 X 21,627.92) Strata IV $3,506.92 (617.95/3805.88 X 21,594.33) Strata V $5,886.05 (1841.36/6729.80 X 21,513.33) Total $15,291.11 Using this method of calculation, it is determined that Dr. Topol has been overpaid as follows: Strata I $1,417.87 (60.98/728.16 X 16,939.88) Strata II $2,263.31 (160.00/1199.63 X 16,966.34) Strata III $2,099.45 (225.74/1823.52 X 16,958.37) Strata IV $2,335.17 (402.96/2935.57 X 17,007.75) Strata V $4,195.75 (1358.14/5443.97 X 16,816.65) Total $12,311.55 The General Practice Clinic was treated differently because it was operated differently. The provider number issued to the General Practice Clinic was applied for and granted to Drs. Topol and Goldin as authorized agents. General Practice Clinic was actually operated and run by Mary Petruff Bone. At the General Practice Clinic, Ms. Bone prescribed and mixed antigens for allergy patients, determined what testings were to be done, and handled other medical problems of patients. Neither Dr. Topol nor Dr. Goldin had any expertise in the field of allergy treatment. The records of the General Practice Clinic were the responsibility and the product of Ms. Bone. At all times material hereto, Ms. Bone was a certified physician's assistant competent to provide services to allergy patients. A physician's assistant is not a physician. At all times material hereto, physicians' assistants could not receive a provider number from Medicaid under which they could bill the Medicaid Program. Ms. Bone billed Medicaid for her services under the General-Practice Clinic's physician provider number. Medicaid was billed for physician's services by the General Practice Clinic even though a physician did not see the patient. It is not usual and customary practice for physicians to bill for their services when they do not see the patients. The State of Florida's Medicaid Program does not authorize payment for services to a physician's assistant under the supervision of a physician. The Medicaid program paid $75,654.73 to the General Practice Clinic in 1982 under its physician provider number. Medicaid did not learn that the General Practice Clinic's billings were for non-physician's services until the Peer Review Committee met with Petitioners on April 28, 1984. For the General Practice Clinic, Dr. Goldin admitted that $40,642.85 should have been disallowed due to improper billing procedures. The $40,642.85 calculated by Dr. Goldin did not take into account any possible double billing or the fact that the clinic's services were performed by a physician's assistant. The records for the General Practice Clinic were not referred to a physician consultant because the payment denials were due strictly to noncompliance with Medicaid rules and regulations, not the overutilization findings of the Peer Review Committee. Medicaid claims for the General Practice Clinic were denied for four basic reasons: 1) No records provided to substantiate the claim; 2) improper billing for B-12 injections; 3) duplicate billing where the General Practice Clinic and Topo or Goldin billed on the same day; and 4) office visits not rendered by a physician. Antigen injections and allergy testing were not disallowed in the claims submitted by the General Practice Clinic because those services are commonly reimbursable when done by someone other than a physician under a physician's supervision. The amounts disallowed for the sample of claims for the General Practice Clinic was then applied to the overall clinic practice in the same manner that the Topol and Goldin amounts were applied to their practice in order to obtain an amount owed the HRS Medicaid Program for the disallowed services. However, again the method used by HRS to extend the overpayment amount determined from the sample to the total population of claims is unreasonable because it does not accurately project the total amount overpaid. For example, in Strata I for the General Practice Clinic, a total of $15,177.73 in Medicaid benefits were paid in 1982. Yet, using the HRS method, a total overpayment of $22,201.44 is determined for that strata, or $7,023.71 more than was ever paid in that strata. Such a result must be unreasonable. If instead the percentage method applied above is used, it is determined that the General Practice Clinic has been overpaid as follows: Strata I $12,659.76 (362/434 X 15,177.73) Strata II $12,784.78 (1447/1719 X 15,188.00) Strata III $12,578.68 (3284/4001 X 15,325.00) Strata IV $13,102.67 (4244/4969 X 15,341.00) Strata V $12,215.79 (5369/6427 X 14,623.00) Total S63,341.68 Some disallowances were made on all three provider numbers because no documentation was provided, even after Ms. Martin asked a second time. These disallowances are proper and correct because Medicaid will not pay for services where there is no documentation justifying the services. The fact that Petitioners now claim to have that documentation is irrelevant to the correctness of the disallowances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order which provides: That Dr. Herbert Topol, D.O., reimburse the Medicaid Program for $12,311.55 in Medicaid overpayments for 1982. That Dr. Sylvan Goldin, D.O., reimburse the Medicaid Program for $15,291.11 in Medicaid overpayments for 1982. That the Topol-Goldin General Practice reimburse the Medicaid Program for $63,341.68 in Medicaid overpayments for 1982. DONE and ORDERED this 23rd day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, 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 23rd day of September, 1986. COPIES FURNISHED: Herbert Topol, D.O. 1111 W. Broward Boulevard Ft. Lauderdale, Florida 33312 Sylvan Goldin, D.O. 1111 W. Broward Boulevard Ft. Lauderdale, Florida 33312 Theodore E. Mack, Esquire 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 William Page, Jr., Secretary Dept. of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Petitioners' proposed Findings of Fact Proposed Finding of Fact 3 is adopted in substance as modified in Finding of Fact 32. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 76. Proposed Finding of Fact 8 is adopted in substance as modified in Finding of Fact 77. Proposed Finding of Fact 39 is adopted in substance as modified in Finding of Fact 70. Proposed Finding of Fact 52 is adopted in substance as modified in Finding of Fact 55. . 6. Proposed Findings of Fact 1, 5, 9, 11, 12, 13, 14, 25, 26, 27, 29, 31, 32, 37, 38, 40, 41, 43, 47 and 48 are rejected as constituting argument and as being conclusory. 7. Proposed Findings of Fact 2, 4, 16, 22, 23, 24, 30, 33, 35, 36, 40, 46, 49 and 50 are subordinate to the fact actually found. 8. Proposed Findings of Fact 7, 10, 17, 18, 19, 20, 21, 34, 38, 40, 42, 44, 45 and 46 are irrelevant and/or unnecessary. 9. Proposed Findings of Fact 17, 25, 28, 32, 43 and 51 are not supported by the competent, substantiated evidence. Additionally, Proposed Findings of Fact 25, 28 and 32 are based on and refer to exhibits which were not admitted in evidence. The exhibits are attached to the proposed order and are rejected as an inappropriate attempt to supplement the record. Rulings on Respondent's proposed Findings of Fact. Each of the following proposed Findings of Fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the pro- posed Findings of Fact: 1(1); 2(58); 3(59); 4(60); 5(S1); 6(62); 7(63); 8(64); 9(65); 10(66); 11(67); 12(68); 13(69), 14(70) 15(71); 16(72); 17(60); 18(2); 19(3); 20(4); 21(5); 22(6); 24(7) 25(8); 26(9); 27(10); 28(11); 29(12); 30(13); 31(14); 32(15), 33(16); 34(17); 35(18); 36(19); 37(20); 38(21); 39(22); 40(23). 41(24); 42(25); 43(26); 44(27); 45(28); 46(29); 47(30); 48(31), 49(32); 50(33); 51(34); 52(35); 53(36) 54(37); 55(38); 56(39). 57(40); 58(41); 59(42); 60(43); 61(44); 62(45); 64(46); 65(47) 66(48). 67(49); 68(50); 69(51); 70(53); 74(73); 75(74); 76(76); 79(75); 81(78). Proposed Findings of Fact 23, 63, and 80 are irrelevant. Proposed Findings of Fact 71, 72, 73, 77 and 78 are subordinate to the facts found.
Findings Of Fact The parties to this proceeding, through their counsel, have stipulated to the following facts: On December 21, 1982, Petitioner submitted by mail an application for licensure by endorsement to the Board. The application was received by the Board on December 28, 1982. Sometime between December 28, 1982, and January 19, 1983, the Board requested additional information from Petitioner relating to his professional activities during the period from June 1967, to June 1968. Petitioner responded to this inquiry by letter dated January 19, 1983, and therewith provided the Board with the requested information. This letter was received by the Board on January 24, 1983, which date constitutes the date on which the ninety-day period within which Petitioner's application must be approved or denied commenced running. By use of a form dated February 23, 1983, the Board made another request for information from Petitioner relating to two omissions in his application. Petitioner responded to this inquiry by letter dated March 15, 1983, providing the requested information. This letter was received by the Board on March 21, 1983. Petitioner's application for licensure by endorsement is based upon his previously obtained FLEX certification. Petitioner took the FLEX, a three-part examination, incidental to applying for medical licensure by examination in the State of Illinois. Petitioner sat for the FLEX examination in Illinois on June 13, 14, and 15, 1972, and on December 5, 6, and 7, 1972. Following conclusion of each examination, Petitioner's responses to the examination questions were forwarded to the National Board of Medical Examiners for evaluation and scoring. On or about January 17, 1973, the National Board of Medical Examiners completed its evaluation and scoring of Petitioner's responses to the December 1972 examination, and on or about January 19, 1973, the scores achieved by Petitioner were forwarded to the State of Illinois. On February 7, 1973, Petitioner was licensed by the State of Illinois, based upon the scores obtained by Petitioner on the June and December 1972 FLEX. The weighted average of the scores achieved by Petitioner on which licensure was granted to the Petitioner by the State of Illinois was 75. This weighted average was computed by assigning a one-sixth weight to the basic science portion of the FLEX examination taken by Petitioner on June 13, 1972; assigning a two-sixth weight to the clinical science portion of the FLEX examination taken by Petitioner on December 6, 1972; and assigning a three-sixth weight to the clinical competence portion of the FLEX examination taken by Petitioner on December 7, 1972. By letter dated March 1, 1983, Willie J. Burch, a Staff Assistant of the Board, notified Petitioner that she would not be able to recommend favorable approval of Petitioner's application to the Board for reason that Petitioner had not obtained a score of 75 percent or above at one sitting of the complete examination. The same letter further informed Petitioner that his application would be presented to the Board for consideration at its April 9-10, 1983 meeting, and that Petitioner would be notified of the Board's final decision within approximately fifteen days from the date of that meeting. On April 10, 1983, the Board at a regularly noticed public meeting considered the Petitioner's application. Petitioner's undersigned attorney then appeared before the Board and addressed the Board on behalf of Petitioner. After considering the information, argument, and legal authority presented by Petitioner's attorney, and the advice and information presented by its staff, the Board, through its chairman, declared that Petitioner's application was not filed with the ten-year period required by Section 458.313(d), Florida Statutes. Further, the Board maintained that Petitioner had failed to comply with Rule 21M-29.01(2), Florida Administrative Code, a newly enacted rule interpreting the statutory phrase "has been certified by licensure examination of . . . (FLEX) to mean that an applicant must not only have been certified by licensure examination of FLEX, but must have scored a FLEX-weighted average of 75 percent or better during only one complete sitting of the FLEX. As of April 25, 1983, neither Petitioner nor his attorney had received any written decision from the Board. On May 23, 1983, Petitioner's attorney filed on behalf of Petitioner, a Request to Issue License, notifying the Board of its failure to comply with the requirements of Section 120.60(2), Florida Statutes. On May 24, 1983, the Board mailed to Petitioner's attorney a document entitled NOTICE OF INTENT TO DENY ENDORSEMENT LICENSURE bearing a certificate of service signed by Dorothy J. Faircloth as the Board's executive director, stating that a copy of such notice had been furnished to Petitioner by mail on May 4, 1983. Said notice expressed the Board's decision to deny Petitioner's application for licensure by endorsement. On May 27, 1983, Petitioner's attorney received a copy of such notice. On May 27, 1983, Petitioner's attorney filed on behalf of Petitioner, a PETITION FOR ADMINISTRATIVE HEARING pursuant to Section 120.57(1), Florida Statutes, to review the Board's denial of Petitioner's application for licensure by endorsement.
The Issue Whether or not Petitioner is entitled to a license by endorsement to practice medicine pursuant to Section 458.313(1) F.S.
Findings Of Fact Petitioner William D. Plummer is an applicant for licensure as a physician by endorsement in Florida. On May 2, 1991, Petitioner filed a licensure application with the Department of Professional Regulation. On page one of the application is the question: Are you now or have you ever been licensed in any State, Canada, Guam, Puerto Rico or U.S. Virgin Islands? Yes No . Petitioner marked the "No" answer to this question on his application. On page four of the application is the question: Have you ever been denied an application for licensure to practice medicine by any state board or other governmental agency of any state or country? Yes No . Petitioner marked the "No" answer to this question on his application. On June 11, 1991, Petitioner was sent a notice that his application was incomplete. In that notice, he was asked: Are you now, or have you ever been licensed to practice medicine in any State? In response, Petitioner sent a letter stating only that he had received a Pennsylvania medical license on July 3, 1991. This date was subsequent to his making the initial Florida application on May 2, 1991. As part of the application process in Florida, Petitioner was asked to appear before the Credentials Committee of the Board of Medicine on January 25, 1992, in Tampa, to discuss various matters regarding his application. In the course of discussing various issues with the Credentials Committee Petitioner was asked: Were you ever denied a license to practice medicine in another state? In response, Petitioner stated, No. I have my Pennsylvania license. In my training initially--my medical training license took some time, and I think that was in 1985 and it was because we didn't have a program in Pennsylvania to work with the State Board. Later, Petitioner told the Committee, I thought there was a difference between a medical training license and a medical license. A medical training license is under supervision at a hospital. In point of fact, in 1985, Petitioner had applied for a graduate medical license in Pennsylvania in order to enter the residency program at Misercordia, Mercy Hospital where he had already been accepted. The Pennsylvania graduate medical license allows the licensee to work as a physician under supervision only as a resident in the institution named on the license. Petitioner's application for this license was rejected because the Pennsylvania Board found that Petitioner had "knowingly falsified" an answer regarding his addiction to alcohol. The Pennsylvania Board further prohibited Petitioner from reapplying for a graduate medical license until June 6, 1986. After formal hearing, the Pennsylvania Board entered its order as follows: ... an Applicant with a proclivity toward engaging in word ploys in these important matters runs the risk, as here, of being in error and thus committing an active concealment and misrepresentation. A more prudent course perhaps for such an Applicant would be to err on the side of giving excess (voluntary) information in responding to such a formal and serious written questionnaire. Medical residents in training programs "practice medicine." In Pennsylvania, residents are prohibited from practicing medicine unless they receive a graduate medical license from the State of Pennsylvania. Because of the Pennsylvania Board's denial of Petitioner's application for a graduate medical license, he was unable to accept the position at Mercy Catholic Hospital. However, in 1986, Petitioner reapplied for a graduate medical training license in Pennsylvania and the application was granted. This graduate medical training license was renewed annually thereafter while Petitioner continued to train in Pennsylvania. Petitioner still held the latest renewed graduate medical training license when he applied for Florida licensure in May 1991. Petitioner was granted his permanent unrestricted medical license in Pennsylvania in July 1991. (See Findings of Fact 2 and 5 supra.) At formal hearing, Petitioner explained that because Pennsylvania's graduate medical training license only allows participation in a residency training program at an approved institution named on the face of the license, he did not consider it to be a "license to practice medicine," and accordingly he did not disclose to Florida the Pennsylvania Board's 1985 denial of such license. He represented that he believed that because the Pennsylvania graduate medical training license was institution-specific, limited to one year in scope, and only a prerequisite to supervised additional medical education, it did not constitute what Florida's inquiries were all about. By common English usage, Pennsylvania law, and Florida law, the authority that Dr. Plummer was denied in 1985 and granted in 1986 by the Pennsylvania Board constitutes a "license to practice medicine," contrary to his interpretation of that term when he filled out his Florida application and responded to inquiries during the course of Florida's licensure investigation. He should have identified it in response to each relevant question or inquiry. However, Petitioner's interpretation of Florida's questions and his answers thereto do not constitute attempting to obtain a license to practice medicine by fraudulent misrepresentation or concealment of a material fact for the following reasons: Petitioner's formal hearing testimony was credible and unrefuted. Petitioner was consistent in his interpretation of the questions on this subject in that he also did not disclose to Florida the "good" facts that the Pennsylvania Board had subsequently granted him the graduate medical license in 1986 and had renewed it annually and that he still held such a license at the time of filling out his Florida application. Also, in the Florida application, he readily and fully disclosed to Florida the "bad" facts of his detrimental past history of alcoholism. Dr. Lee testified as a medical physician licensed to practice in New York, Pennsylvania, and Iowa, that he considered Petitioner's interpretation of the Florida application questions concerning prior medical licensing reasonable and that he also considered Petitioner's answers to those questions reasonable. No contrary testimony was presented. The American Medical Association profile does not list Petitioner's Pennsylvania graduate medical training license as a "license to practice medicine." Various qualified credible witnesses acknowledged that Petitioner's failure to disclose his alcoholism to the Pennsylvania Board in 1985 was a denial symptom of his alcoholism at that time and was not symptomatic of his character makeup now that his alcoholism is in remission or at any time he responded during the Florida licensing process. Respondent presented no direct evidence to prove that Petitioner had a fraudulent intent in answering as he did. Although fraudulent intent may sometimes be inferred from the circumstances, the circumstances herein do not permit such an inference. On his initial Florida application, Petitioner could not correctly recall the dates of his medical training because he had not kept accurate records himself and because of his alcoholic condition in prior years. One representative error he made is that he listed a full year in one program which he attended for only four months. However, he approximated the dates as best he could and revealed all training programs, even those in which he was unsuccessful, and he consistently responded to the Board that he would defer to whatever the training institutions' records showed. He also concealed no rehabilitation programs he had been in. No intent to defraud or conceal can be inferred from these circumstances. Petitioner is an alcoholic. Petitioner's alcoholism had its inception sometime during his childhood, possibly as early as the age of eight years. Petitioner graduated from Pennsylvania State University summa cum laude, in 1976. He matriculated from the Uniformed Services University in 1980. Toward the end of his time in medical school, approximately 1980, Petitioner began to realize that he had a problem with alcohol. In 1980, Petitioner entered a surgical training program at Balboa Hospital in San Diego, California. As a direct result of his problems with alcohol, Petitioner left that surgical training program in 1981 without completing his training. Between 1981 and 1983, Petitioner was partially supported by his parents, performed odd jobs as a handyman and searched for a new training program. In July, 1983, Petitioner entered an internal medicine training program at St. Raphael Hospital in New Haven, Connecticut. After approximately five months and prior to completion of training in New Haven, Petitioner's problems with alcohol forced him to terminate participation in the internal medicine training program. In December 1983, Petitioner entered a rehabilitation program at Marworth in Waverly, Pennsylvania. He remained as an inpatient at Marworth until February 1984 when he was discharged to Little Hill--Alina Lodge, a continuing care facility in Blairstown, New Jersey, where he remained as an inpatient until May 1984. Petitioner left Little Hill--Alina Lodge with staff approval. Between May 1984 and November 1986, Petitioner worked at various odd jobs as a handyman and helped his parents relocate and build in Florida. He also waited for his graduate medical training license in Pennsylvania. (See Finding of Fact 7, supra) Petitioner described both the periods of 1981-1983 (See Finding of Fact 18 supra.) and 1984-1986 as periods of "self-employment" whereas "unemployment" might have been more accurate. This discrepancy was neither "fraud" nor "concealment," as those terms are generally understood. In November, 1986, Petitioner entered an internal medicine training program at Misercordia, Mercy Catholic Medical Center in Philadelphia, Pennsylvania. Petitioner's problem with alcohol caused him to behave in a manner which indicated the presence of an active physical impairment of alcoholism and resulted in Petitioner's suspension and later resignation from that program after approximately three and a half months and prior to completion of training. In June 1987, Petitioner returned to Marworth as an inpatient. He remained under treatment for approximately one month and then stayed on at Marworth as an inpatient for approximately a month. Thereafter, he worked as a janitor and groundskeeper for nearly two years while concentrating on his life problems that had contributed to his alcoholism. Many professionals reviewing his case have been favorably impressed with Petitioner's dedication and sacrifice during this period of time. In 1989, Petitioner entered an internal medicine training program at Robert Packer Hospital in Sayre, Pennsylvania. This hospital is part of the Guthrie Healthcare System where Petitioner is currently employed. (See Findings of Fact 28, 43, 49 infra.). In June 1990, Petitioner took a vacation to the Florida keys and while on vacation went on a four day drinking binge. Petitioner voluntarily reported himself for further treatment and returned to Pennsylvania. While awaiting placement in another rehabilitation program, he suffered an alcohol withdrawal induced seizure. In July 1990, Petitioner entered his fourth inpatient treatment program for alcoholism at Bethany Center in Homesdale, Pennsylvania, where he remained for one month. His absence was counted as vacation and sick time while he was able to complete his internal medicine training program at Robert Packer Hospital on schedule in April 1992. The Guthrie Health Care System immediately offered him his current position, with full knowledge of his excellent academic record and clinical references and his alcohol recovery history. (See, Findings of Fact 43 and 49 infra). Currently, Petitioner participates in the Physician's Health Program of the Pennsylvania Medical Society and since January 1991 has been participating, through counseling, in a program of recovery from alcoholism with the Bradford Sullivan Drug and Alcohol Program. Both the Florida Physician Resource Network and the Pennsylvania Physician's Health Program impaired physicians programs have opined that Petitioner's history of alcoholism should not bar his licensure in Florida at the current time. (See, Findings of Fact 31-39 infra.) Dr. Roger Goetz is the Director of Florida's PRN and is the Department of Professional Regulation's consultant charged with implementing Florida's Impaired Practitioner Program. The Physician Resource Network includes the Physician Recovery Network (PRN). In the past five years, the PRN has evaluated approximately 350 physicians with impairments at the request of the Board of Medicine. Over this period, Dr. Goetz cannot recall a single instance where an applicant endorsed by PRN has failed to maintain sobriety. PRN statistics show that at least 97 per cent of the practitioners on contract have not reverted to alcohol or chemical use. Petitioner is willing to enter such a contract with PRN if he is licensed. Dr. Goetz believes Petitioner will be able to practice medicine with skill and safety to patients in Florida, provided he enters into a contract with the PRN. Dr. Goetz opined that Petitioner's relapse in 1990 does not indicate the likelihood of future relapses because Petitioner has continued with a more effective treatment program and support system geared to his needs as a physician. Dr. Goetz, on behalf of PRN, recommended a five-year contract for Petitioner designed to identify pre-relapse behavior and entail that he remain chemically abstinent, be subjected to random body fluid analysis, establish a doctor/patient relationship and receive care from another physician for his personal health, obtain a monitoring physician, attend group therapy, attend Alcoholics Anonymous meetings, have significant family members involved in his recovery, notify the PRN of any problems in his life, including changes in his physical health, be willing to withdraw immediately should there be any problems surrounding his practice, and participate and cooperate with the PRN at all times. Such a contract would provide Petitioner with an environment in Florida which is similar to his current recovery environment in Pennsylvania. Dr. Goetz testified that to the extent of his knowledge Petitioner has a good reputation for truth and veracity. At the request of PRN, Petitioner was evaluated for chemical dependency by Leah H. Williams, M.D. in July 1991. Dr. Williams reported to PRN that she was in favor of Florida licensure for Petitioner. In September 1991, Petitioner received a thorough outpatient evaluation from Dr. Lynn Hankes, PRN's approved evaluator. Dr. Hankes also endorsed Florida licensure for Petitioner, contingent upon Petitioner entering the PRN program and participating in ongoing psychotherapy. Penny Ziegler, M.D., Medical Director of the Pennsylvania Physician's Health Program, supports Petitioner's application for licensure in Florida. Nicholas F. Colangelo, Ph.D., a psychologist, supports Petitioner's application for licensure in Florida. Dr. Colangelo may be considered as a past and currently treating psychologist for Petitioner. They have known each other since Petitioner was at Marworth. Dr. Colangelo is a nationally certified alcohol and drug counselor who is Vice-President of Clearbrook, Inc., an alcohol and drug addiction treatment facility. He is a recovering alcoholic who has been sober for over seventeen years. Twenty-five to thirty-five per cent of his addiction counseling focuses on professionals. According to Dr. Colangelo, professionals and other high-achieving individuals like Petitioner often have difficulty accepting that they must submit to the whole program for recovery from alcoholism but once they do, they recover at a higher than average rate. In Dr. Colangelo's opinion, Petitioner has demonstrated conduct which gives him a better than average prospect for continued sobriety. Dr. Colangelo opined that Petitioner's current employment in a tertiary care facility, the Guthrie Clinic, coupled with the management of the ongoing licensure proceedings in Florida, provide Petitioner with as much environmental stress as he has ever experienced, but the existence of environmental stress does not play a significant role in Petitioner's continued sobriety. Dr. Colangelo perceived Petitioner as a person of truth and veracity. Petitioner is currently employed by the Guthrie Healthcare System, a multi-specialty private medical practice clinic employing approximately 110 physicians in non-surgical areas of medicine. Petitioner is responsible for the initial evaluation of nonsurgical patients. It is within his job duties to determine the type of medical care to be provided to each nonsurgical patient entering the clinic. In that position, he sometimes provides all primary care to the patient or directs the patient to the appropriate subspecialist. Apart from the four days in 1990, Petitioner has been continuously sober for five and one-half years. That 1990 four day relapse did not detrimentally affect his patient care. At that time, Petitioner contacted Florida's PRN. He has maintained contact with Dr. Goetz ever since. According to Dr. Colangelo and Dr. Goetz, two years of continuous sobriety is a benchmark most professional associations accept for granting a license or privilege. The American Board of Internal Medicine uses such a two year benchmark. Petitioner has met all credentialing requirements to obtain certification by the American Board of Internal Medicine. Dr. Ferrol Lee currently is responsible for the nonsurgical quality of medicine at Guthrie, with overall supervision of the 110 physicians employed there, including Petitioner. He has worked with Petitioner both during Petitioner's residency at Robert Packer and during his current employment. He views Petitioner as a hard worker whose personal struggle with alcoholism gives him valuable insight into the care of patients who struggle with similar problems. He ranks Petitioner within the top 5-10 residents of the 100 he has worked with over the past nine years. Dr. Lee testified that Petitioner has continually demonstrated good moral character and has a flawless reputation for truth and veracity. Dr. Lee endorses Petitioner's licensure in Florida. The State of Pennsylvania has never taken disciplinary action against Respondent's license to practice medicine in that state.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered certifying Petitioner for licensure with placement of Petitioner on probation for five years subject to his entering into and abiding by a contract acceptable to the Physicians Recovery Network. RECOMMENDED this 20th day of April, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 20th day of April, 1993.
The Issue The following issues of fact were considered: Did the Respondent aid, assist, procure, or advise an unlicensed person to practice medicine? Did the Respondent delegate professional responsibilities to persons when he knew or had reason to know that said persons were not qualified by licensure to perform them? Did the Respondent presign prescription forms? Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Albert P. Oteiza, is licensed to practice medicine and surgery in the State of Florida and has been so licensed at all times relating to the charges in the Administrative Complaint. The Respondent was president and director of the Union Latina Association, Inc. (the Association), located at 1313 Southwest First Street, Miami, Florida. The Respondent was paid by the Association, which provided medical services to patients who were members of the Association. The Respondent practiced at Clinical Union Latina (the Clinic), located at 1313 Southwest First Street, Miami, Florida, and was the medical director of the Clinic. The Respondent was not an officer or director of the Clinic. The president of the Clinic was Rigoberto Garcia, and the business manager was Christian Carmona. Florencio Sanchez-Lopez was employed as a physician's assistant at the Clinic by Christian Carmona, who assigned Sanchez-Lopez's duties. Sanchez-Lopez was not a licensed physician and was not a certified physician's assistant. Sanchez-Lopez admitted seeing and treating patients at the Clinic. Sanchez- Lopez saw those patients who were in serious condition in the presence of the Respondent. Those patients who were not in serious condition, Sanchez-Lopez saw without the Respondent being present, and Sanchez-Lopez prescribed treatment and medications for these patients. Sanchez-Lopez examined and prescribed medications and treatment for Ralph Nunez, an investigator for the Board of Medical Examiners, in the manner Sanchez-Lopez had admitted to examining and prescribing for other patients. Valerio Matta was employed as a physician's assistant at the Clinic by Carmona, who assigned Matta's general duties. Matta was not a licensed physician or a certified physician's assistant. Matta saw patients at the Clinic, examining them and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. Matta also admitted that he had performed minor surgery on patients, but only when the Respondent was present in the Clinic. Carlos Manuel Rodriguez-Murgia was employed as a physician's assistant at the Clinic by Carmona, who assigned Rodriguez-Murgia his general duties. Rodriguez-Murgia was not a licensed physician or certified physician's assistant. Rodriguez- Murgia saw patients at the Clinic, examining and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. The acts performed by Sanchez-Lopez, Matta, and Rodriguez-Murgia all constituted the practice of medicine. However, these acts did not exceed the acts which could have been performed by a physician's assistant. The Respondent was aware or should have been aware that Sanchez-Lopez, Matta, and Rodriguez-Murgia were engaged in seeing patients at the Clinic and performing acts which constituted the practice of medicine. Carmona was deceased at the time of the hearing. Garcia, president of the Clinic, outlined Carmona's duties. Carmona was responsible for having Sanchez-Lopez, Matta, and Rodriguez-Murgia certified as physician's assistants. All three men confirmed that Carmona represented to them they would be licensed and they were "legal" to perform their duties. Sanchez-Lopez, Matta, and Rodriguez-Murgia could not swear that it was the Respondent's signature on the prescriptions they used or that they had seen the Respondent sign the prescriptions. There were other licensed physicians who worked at the Clinic.
Recommendation Having found the Respondent guilty of three counts of violating Section 458.331(1)(w), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Board of Medical Examiners suspend the license of the Respondent, Albert P. Oteiza, for a period of 12 months and assess a civil penalty against him of 3,000. DONE and RECOMMENDED this 17th day of October, 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 17th day of October, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Blas E. Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 83-122 ALBERT P. OTEIZA, M.D., License No. 20879 Respondent. /
Findings Of Fact Petitioner filed an application for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, a special avenue of certification as a physician assistant for graduates of foreign medical schools. In furtherance of that application, he appeared before the Physician Assistant Committee of the Board of Medicine. Subsequent to his appearance before that Committee, on August 13, 1992, Respondent sent Petitioner a letter which provides, in pertinent part, as follows: This is to advise that your application for issuance of a temporary certification with the requirement that prior to issuance of temporary certificate you submit within 30 days of date of appearance, a new corrected and complete application to be reviewed by the Board staff. Please complete the enclosed application. You will be required, as a condition to take the examination, 2 new personalized letters of recommendation, specifically recommending you as a physician assistant. The letter did not enclose an application form for Petitioner to complete. Respondent admits that the information in the letter was incorrect because it confused temporary certification with the requirements for examination. It is apparent that the letter is also incorrect because it fails to advise Petitioner if his application was being granted or denied; moreover, the wording of the letter makes no sense. By Order dated August 26, 1992, the Board of Medicine notified Petitioner that his application for temporary certification as a physician assistant was denied pursuant to the Committee's August 1 determination and the Board's August 9 determination that the length of time since Petitioner had last worked in the field of medicine or received significant medical education or training precluded him from being able to establish that he could practice as a physician assistant with reasonable skill and safety to the public. That Order further advised Petitioner, however, that the Board had granted Petitioner's application to sit for the certification examination pursuant to Section 458.347(7)(b), Florida Statutes, because Petitioner was eligible to take the examination to become certified as a physician assistant and that passage of the examination would serve to establish Petitioner's qualifications for practice. The Order specifically provided that the Board's permission for Petitioner to sit for the certification examination was "contingent upon and subsequent to receipt within 30 days" of Petitioner's appearance before the Physician Assistant Committee of (1) a complete and correct application and (2) two more letters of recommendation which specifically recommend Petitioner as a physician assistant. It would have been difficult for Petitioner to timely comply with the Order entered August 26 requiring him to file documents within 30 days of his August 1 appearance before the Committee. By letter dated August 31, 1992, Petitioner requested an extension of one week by which to obtain the second letter of recommendation due to the devastation produced by Hurricane Andrew and Petitioner's inability to communicate with the doctor who would sign it. Petitioner did, however, submit another application which was postmarked August 31, 1992, and received by Respondent early in September. At hearing, Respondent advised that it was waiving the 30-day deadline contained in the August 26, 1992, Order due to the intervention of Hurricane Andrew and because Respondent had not strictly enforced such deadlines as to other applicants. Rather, Respondent simply required that Petitioner comply with its Order within a reasonable period of time. By letter dated December 21, 1992, Respondent advised Petitioner that his application was incomplete because the Board had only received Petitioner's new application, one letter of recommendation, and Petitioner's request for an extension of time for submittal of the second letter. The letter further advised that the Board's staff's review of Petitioner's recent application had revealed some discrepancies requiring an explanation by Petitioner. The letter, therefore, advised Petitioner to submit one more recommendation letter, provide an explanation for six specified areas, and submit pages 8 and 9 of the application regarding Petitioner's clerkships. The letter further advised Petitioner that all information must be received by the Board no later than December 31, 1992. On January 20, 1993, Respondent received an undated letter from Petitioner referencing Respondent's December 21, 1992, letter which was received by Petitioner on December 30. Petitioner's letter enclosed the additional letter of recommendation requested by the Board, responded specifically to the six areas of inquiry, and enclosed pages 8 and 9 of the Board's application form. On January 20, 1993, the Board received a letter from Dr. Jose M. Bermudez, recommending Petitioner as a physician assistant. On January 28, 1993, the Board sent Petitioner a letter advising him that the Board had received the letter of recommendation from Dr. Bermudez and pages 8 and 9 of the application. That letter further provided as follows: However, the Physician Assistant Committee required you to submit a new complete and accurate application, and two (2) additional letters of recommendation which specifically recommend you as a physician assistant. Enclosed you will find a complete physician assistant application. Please fill the application out in its entirety and submit it to the Board of Medicine as soon as possible. In compliance with that request, Petitioner submitted yet another application for certification as a physician assistant, which was received by the Board on February 8, 1993. On February 24, 1993, the Board of Medicine entered its Order denying Petitioner's application for certification as a physician assistant. The Order recited that the denial was based upon the determination made by the Physician Assistant Committee on January 8 and by the Board on January 13 because Petitioner "failed to submit a new and complete and accurate application and one new personalized letter of recommendation within the time frame allotted by the Board." That Order does not mention Petitioner's application to sit for the certification examination, the issue pending before the Board, since the Board had already denied Petitioner's application for certification by Order entered August 26, 1992. That February Order also advised Petitioner of his right to request an administrative hearing regarding the Board's determination. On February 26, 1993, the Board's staff sent Petitioner a letter advising him that he had been certified by the Board to take the examination for licensure as a physician assistant to be administered in September, 1993. On March 10, 1993, the staff sent Petitioner a letter acknowledging Petitioner's "request for a hearing on the denial of your application for certification as a physician assistant," and advising Petitioner that the February letter advising him that he had been certified to take the examination for licensure as a physician assistant had been sent to Petitioner in error. A "corrected" letter was enclosed. That "corrected" letter dated March 10 advised Petitioner that the Board had preliminarily denied him certification to take the examination for licensure as a physician assistant. By letter dated March 18, 1993, the Board's staff sent an additional letter to Petitioner advising Petitioner as to the correct dates for the examination. In applying for temporary certification as a physician assistant and/or to sit for the certification examination, Petitioner has filed an additional application each time he has been instructed to do so by the Board or by the Board's staff and has submitted a letter explaining the information given in his applications each time that the Board's staff has requested that he do so. Petitioner has filed at least three such applications and has responded by letter to inquiries regarding the contents of his applications at least three times. Additionally, Petitioner has personally appeared before the Physician Assistant Committee on August 1, 1992, to be questioned regarding his qualifications. The Board has discovered some "discrepancies" or omissions in analyzing those various documents. Petitioner's August application states that the ending date for medical school, assumedly the date he received his degree, was February 25, 1965. That date appears in three places. Further, the copy of his diploma submitted to the Board reflects that date. Yet, the December 21, 1992, form from the Board to Petitioner advises him that he must explain his ending date for medical school. In response to that indication that he must provide different information, Petitioner's letter received by the Board on January 20, 1993, states that the ending date for medical school was February 29, 1962. At hearing, Petitioner explained that he attempted to differentiate between the date he completed classes and the date he completed all requirements, including internships, in order to receive his diploma. The information contained in Petitioner's application is correct. The August application contains an answer in the negative to question numbered 9 asking Petitioner if he is or has ever been emotionally or mentally ill. Although Petitioner's subsequent February 1993 application contains no answer to that question, the Board did not have before it the February application when it decided in January to deny Petitioner's application. Even so, Petitioner had no intention to be incomplete or inaccurate when he failed to answer that question on the February application. In his August application Petitioner does not list the completion of any social service work in either section inquiring about post-graduate training or practice employment. In an application that Petitioner filed in 1985 requesting licensure as a physician, Petitioner had specifically detailed the social service work performed by him as part of his medical school training. In that application he listed the dates as January 1, 1963 to December 31, 1963. The letter Petitioner wrote to the Board in response to its December 1992 request for a better explanation states that his social service work was done between March 1, 1963 and September 30, 1963. There is no dispute regarding whether Petitioner did in fact complete his social service work requirement as part of his education in order to receive his diploma, and it is clear that such work was done in 1963. Although there is a discrepancy regarding which months during 1963 he did his social work, the discrepancy as to the months during which Petitioner did something 30 years ago does not make his application inaccurate. In fact, the August application may be more accurate than the 1985 application form. The August application required Petitioner to list in chronological order from the date of graduation to the present all practice experience and/or employment. Petitioner advised that from February 28, 1970, to April 30, 1976, he was in private practice in Nicaragua. The Board's December 1992 letter asked for clarification because a prior application indicated additional activity. Petitioner's response letter advised that he was also in pediatric practice at the General Hospital of Managua from 1970 to 1972. His 1985 application did not mention the pediatric practice at General Hospital. At final hearing, Petitioner explained that he was in private practice at the same time that he practiced at the clinic in the hospital. Petitioner's 1985 and February 1993 applications, although not the subject of this proceeding, also contained some minor discrepancies regarding Petitioner's employment experience. For example, one shows Petitioner beginning his employment with the Nicaraguan Red Cross on May 1, 1976, and the other shows Petitioner's employment beginning on May 31, 1976. The parties do not dispute that Petitioner in fact practiced with the Nicaraguan Red Cross during that time period. In further response to the question requiring Petitioner to list all of his practice experience or employment, Petitioner did not list his activities from September 10, 1984, and thereafter. The Board's December 21, 1992, letter to him requested that he account for all his activities for the time period of January 1, 1984, and thereafter. In his response he did not identify those activities except to say that during that time period he was living in Miami. The detailed information had been provided to the Board in response to a letter to Petitioner from the Board dated March 8, 1992, in conjunction with his original application for certification as a physician assistant, although he did not again provide that information when he was ordered by the Board to file a new application. In Petitioner's August application, he listed no ending date regarding his private practice begun on January 1, 1984 in Managua, Nicaragua. Petitioner's 1985 physician license application showed that that employment ended September 10, 1984, whereas his February application showed that practice to have ended on September 15, 1984. Such a discrepancy is not material to Petitioner's application or eligibility. The application form contains a section regarding clerkships and requests that each clerkship be specified. In the August application Petitioner did not specify his four individual clerkships. After being asked pursuant to the Board's staff's December 1992 letter to resubmit pages 8 and 9 as to his clerkships, Petitioner did so by referring to them as a group rather than breaking them down individually. He did the same in the February 1993 application. The parties do not dispute that Petitioner performed the required clerkships. It is unclear how many letters recommending him as a physician assistant Petitioner has submitted to the Board. Petitioner referenced his submittal of photocopies of the "last two" letters of recommendation, the originals of which had previously been submitted to the Board, in a letter that Petitioner sent the Board in March of 1992. In correspondence from the Board to Petitioner in May of 1992 reference is made to the requirement that Petitioner submit another letter of recommendation because the Board did not have the original of that letter in its file. When the Board's staff instructed Petitioner to appear before the Physician Assistant Committee on August 1, 1992, the absence of necessary letters of recommendation was not one of the reasons given. The Board's August 26, 1992, Order requests "two more letters", which indicates that letters had been previously submitted. The staff's December 21, 1992, communication to Petitioner acknowledges receipt of one additional letter but requests another, which request was complied with at least by the submittal of the letter from Dr. Bermudez received by the Board on January 20, 1993. Petitioner applied to be certified as a physician assistant and the Board determined that he was eligible to take the examination. Thereafter, through a series of mistakes and correct acts, the Board's staff requested Petitioner on a number of occasions to file additional applications which he did. When the Board's staff asked for clarification he responded in writing and by telephone call, and the Board agrees that it has telephone slips in Petitioner's file. Each time the Board's staff asked for different information than had been given in Petitioner's previous application(s), Petitioner provided more and/or different information. There is no suggestion that Petitioner attempted to provide inaccurate or false information, and it is found that Petitioner provided correct and complete information to the best of his ability. Petitioner's mistakes are certainly no greater than the mistakes made by the Board's staff in sending Petitioner conflicting instructions, conflicting correspondence, and one letter that did not make any sense.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered permitting Petitioner to sit for the physician assistant examination to be administered during September of 1993. DONE and ENTERED this 12th day of July, 1993, at Tallahassee, Florida. LINDA M. RIGOT 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 12th day of July, 1993. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-1550 Respondent's proposed findings of fact numbered 1-10 have been adopted in substance in this Recommended Order. Respondent's proposed finding of fact numbered 11 has been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Catherine Lannon, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, Florida 32399-1050 Enrique Rueda Arguello 9409 Fountainbleau Boulevard, Apt. #101 Miami, Florida 33172 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner has met the requirements for licensure by examination as set forth in Chapter 458, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Petitioner is 48 years old and resides at 210 Tibet Avenue, No.L-2, Savannah, Georgia 312406. Petitioner attended City College of Medicine, Cebu City, Philippines during the 1962-63 school year. While at City College, Petitioner failed four out of the five courses he was taking which, along with his father's financial hardship, forced Petitioner to drop out of medical school. Petitioner enrolled in medical school at Southwestern University, Matias H. Azklnar, Memorial College of Medicine, Inc., Villa Aznar, Cebu City, Philippines (Southwestern) for the school year 1965-66. During the 1965-66 school year at Southwestern Petitioner passed, among others, those courses which he had failed at City College during the 1962-63 school year. During the 1966-67 school year Petitioner failed pharmacology 2 and physical diagnosis but passed those courses during the 1967-68 school year, while failing surgical pathology which he passed during the 1968-69 school year. During the 1968-69 school year Petitioner failed pharmacology 3 in the first and second semester. Although Petitioner testified that he passed pharmacology 3, Petitioner's transcript from Southwestern does not indicate that Petitioner passed pharmacology 3 before graduating from Southwestern University in 1971. Petitioner graduated from and received his medical degree from Southwestern in 1971. Southwestern is registered by the World Health Organization. Petitioner served an internship at Detroit-Macomb Hospital Association from July 1, 1982 until June 30, 1983. Petitioner received an overall evaluation of "good" on his internship and was recommended as qualified and competent. Petitioner took the Federation Licensing Examination (FLEX) in December 1982, June 1983, December 1983 and December 1984, and failed the examination each time. In June 1985, Petitioner took the FLEX examination again and passed Component 2 but failed Component 1 by one point. In December 1985, Petitioner took Component 1 again and passed. Petitioner successfully passed the medical examination portion of the Educational Commission For Foreign Medical Graduates (ECFMG) examination on January 21, 1981 and the English examination portion on July 22, 1981 and was issued certificate number 245-840-4 on January 8, 1982. That ECFMG has remained valid since that date. Before passing the ECFMG examination in 1981, Petitioner had failed that examination six times. Petitioner is licensed to practice medicine in the states of Michigan and Georgia, and has been licensed in those states since March 3, 1986 and June 11, 1986, respectively. However, other than serving an internship, Petitioner has never practiced medicine in the state of Michigan. Petitioner's licenses to practice medicine in the state of Michigan and Georgia have never had any disciplinary action taken against them. Petitioner practiced medicine at Central State Hospital (a mental institution) at Milledgville, Georgia as a general physician in family practice, working also in the area of psychiatry, from April 1, 1988 until his resignation on October 24, 1988. At the time of the hearing, Petitioner had been practicing medicine as an emergency room physician for approximately 8 months at Stattanall Memorial Hospital near Savannah, Georgia, and had been working as the physician in charge at the Immediate Med Clinic near Savannah, Georgia for a couple of months. Petitioner also practiced medicine for a brief period at Folkston Memorial Hospital in Folkston, Georgia, but terminated this employment due to the long distance from Savannah, Georgia where Petitioner resided. Although Petitioner was a staff member at Central State Hospital, he did not have staff privileges in that he was not authorized to admit patients to Central State Hospital. Petitioner did not have staff privileges at any other hospital or clinic where he practiced medicine in that he was not authorized to admit patients. Petitioner is an active member of the American Medical Association (AMA) in good standing. Petitioner has never been a defendant in a medical malpractice suit. Petitioner has established facts to show that he is qualified and competent to practice medicine with reasonable skill and safety, notwithstanding that it took him 7 years to complete a five-year medical curriculum, that it took him 6 tries before passing the ECFMG examination, that it took him 5 tries before passing the FLEX examination, that he has practiced in Georgia for only approximately 2 years mainly in general practice and, his performance in his medical education and training. There was no evidence that Petitioner had "exhibited a consistent pattern of less than successful or borderline performance" in his "medical education and training". Respondent Board did not present any evidence from an expert or "person with special expertise" or anyone else to show a rational relation between Petitioner taking 7 years to complete a 5-year medical school curriculum, Petitioner failing the ECFMG examination 6 times before passing, Petitioner failing the FLEX examination 5 times before passing, Petitioner's practice in Georgia and his medical school education and training performance; and the ability of Petitioner to practice medicine with reasonable skill and safety.
The Issue The central issue in this case is whether Petitioner is entitled to licensure by endorsement.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The Petitioner, Gerardo Hevilla, completed the application for licensure by endorsement and submitted all degrees, test results, certificates, recommendations, and other documents required by law to be considered for licensure by endorsement as a medical doctor in Florida. The degrees, test results, recommendations and other documents submitted by Petitioner are authentic. Petitioner obtained a doctor of medicine degree from the Universidad Nacional De Rosario in Argentina on July 1, 1980. Universidad Nacional De Rosario Medical School (School) is a medical school duly listed by the World Heath Organization. Graduates of the School are eligible to seek medical licensure in Florida by endorsement pursuant to the provisions found in Section 458.313, Florida Statutes, and the rules and regulations promulgated by the Board of Medicine (Board). On November 20, 1985, Petitioner satisfied the requirements of the Educational Council on Foreign Medical Graduates (ECFMG) and was issued ECFMG certificate no. 339-394-9. Petitioner obtained a passing score on the Federated Licensing Examination (FLEX) within 10 years immediately preceding his application for licensure by endorsement in Florida. Petitioner successfully completed one year of post- graduate training at Lincoln Medical and Mental Health Center as a resident in general surgery. Petitioner has satisfied all preliminary requirements of the Board to be considered for licensure by endorsement. Petitioner came to Florida in April, 1981. At that time he did not speak English and, therefore, was not able to pass the English portion of the ECFMG examination. In order to learn English, he enrolled at Miami High School. While enrolled at the high school, Petitioner volunteered his services to a clinic located approximately two blocks from the school. Petitioner worked at this clinic, LeGran Familia Clinic (Clinic), from 1982 until 1984, while he attempted to learn English. Since many of the doctors and patients at the Clinic spoke Spanish, Petitioner did not have difficulty. The Clinic had 20-22 licensed physicians on staff during the time Petitioner worked there. During the time Petitioner worked at the Clinic, he was primarily under the supervision of Dr. Mirabal. According to Dr. Mirabal, Petitioner was a brilliant, though ambiguous, physician. Petitioner did not represent himself to patients as a physician but was responsible for taking vital statistics, patient histories, and transcribing Dr. Mirabal's dictation. A licensed physician was present at the clinic at all times during which Petitioner performed these services. Subsequently, the Clinic came under investigation for Medicaid fraud. Petitioner was named as one of several defendants in the criminal prosecution. This charge was later dismissed by the prosecuting State Attorney and is not claimed as a basis for the denial of Petitioner's application for licensure. A second charge, the unauthorized practice of medicine, was alleged against Petitioner in State of Florida v. Gerardo Hevilla, Dade County Circuit Court, Criminal Division, case no. 84-8608. Initially, Petitioner pled not guilty to this charge. On May 3, 1985, Petitioner changed his plea to nolo contendere based upon a representation by the State Attorney to the trial judge that the Department of Professional Regulation had been contacted and had agreed that such plea would not be used against Petitioner in his future licensing efforts. This representation was made on the record and is a part of the plea colloquy. Prior to this presentation, Petitioner had refused, and intended to continue to refuse, to change his plea because of his concern that such a plea would adversely affect his ability to become licensed. The estimated cost to defend the criminal case exceeded $25,000. Petitioner accepted the negotiated plea as a financial concession only after the assurances were given that it would not affect his ability to become licensed. In January or February, 1984, Petitioner became employed at the South Florida Medical and Surgical Center (Center). He remained associated with the Center until June, 1986. While at the Center, Petitioner worked as a surgical assistant and helped the licensed surgeons as they directed. Petitioner did not treat patients independently of the licensed doctors and did not hold himself out as a licensed physician. He told one patient, Zoraida Wong, that he was a student. Petitioner assisted Dr. DeGeronimo and Dr. Alexander at the Center. These doctors found Petitioner to be competent, skilled, and a good worker. In fact, Dr. DeGeronimo was so pleased with Petitioner's work that he employed him at his private office until June, 1986. The work performed by Petitioner at the Center and with Dr. DeGeronimo consisted of setting up the operating area, ordering supplies, assisting in surgery by wiping blood, holding retractors, or cutting stitches, and bandaging wounds. All work was done under a licensed physician's supervision. From June, 1986 until July, 1987, Petitioner performed a one year residency at the Lincoln Medical Hospital. During this period, Petitioner was supervised by Drs. Stahl, the program director, and Kazigo, an associate professor. According to these physicians, Petitioner is qualified for licensure, possesses the requisite knowledge and skill, and successfully completely the residency program. Following the completion of his residency, Petitioner returned to Miami and is employed again as an assistant to Dr. DeGeronimo in his plastic surgery practice. Petitioner did not perform facial plastic surgery on the patient, Zoraida Wong. Petitioner did not withhold facts regarding his criminal plea from the Board.
Recommendation Based on the foregoing, it is RECOMMENDED: That The Board of Medicine enter a final order approving Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 30th day of December, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 30th day of December, 1987. APPENDIX TO RECOMMENDED ORDER RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: The first sentence in Paragraph 1 is accepted. With regard to the sentence, that portion which alleges Petitioner took courses at the University of Miami is accepted the rest is rejected as beyond the scope of evidence presented or irrelevant to these proceedings. Paragraph 2 is accepted as to all parts. With regard to paragraph 3A. with the exception of the reference to full-time study of English it is accepted. The record does not conclude whether or not Petitioner was in school full-time, he did enroll at Miami High School to learn English so to that extext it is accepted, otherwise rejected as not supported by the record. Paragraphs 3B-D are accepted. Paragraph 4 is accepted. Paragraph 5A. is accepted. The first sentence and last sentence of the first paragraph of paragraph 5B are accepted; the remainder of the first paragraph is rejected as irrelevant, immaterial, not supported by the record or speculation. The second, third and fourth paragraphs of Paragraph 5B are accepted. The first paragraph of SC is accepted. The second paragraph of SC is rejected as irrelevant; the Board has not claimed the allegations relating to the alleged Medicaid fraud were a basis for denial of Petitioner's license. The first three sentences of the first paragraph of Paragraph 6 are accepted. The remainder of the first paragraph is rejected as a recitation of testimony, irrelevant, or unsupported by the record. The second paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The third paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. The fourth paragraph of Paragraph 6 is rejected as a recitation of testimony, irrelevant, or argument. With regard to these paragraphs, see finding of fact which concludes Petitioner did not operate on the patient Wong. Petitioner's testimony, Dr. DeGeronimo's, and Urquiza's testimony were deemed credible. Dr. Garcia-Lavin and Wong were not. The fifth paragraph of Paragraph 6 is rejected as argument, but as to facts therein see explanation in p. 13 above. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-11c are accepted. The first sentence of paragraph 12 is accepted. The remainder of paragraph 12 is rejected as contrary to the weight of credible evidence. Petitioner was not eligible to take the residency until he had mastered English to a sufficient level to pass required examinations. Petitioner's explanation for the period was acceptable. Paragraph 13 is accepted. Paragraph 14 is rejected as contrary to the credible evidence, argument or irrelevant. Petitioner is found to be credible. Paragraph 15 is rejected as contrary to the evidence, argument or irrelevant. Paragraph 16 is rejected as irrelevant, unsupported by the credible evidence or argument. Paragraph 17 is rejected as irrelevant or argument. That the Department did not actually pledge to hold Petitioner harmless by reason of the plea is not a disputed issue Petitioner had a reasonable basis for believing that to be the case; however, and was induced to change his plea on that basis. Paragraph 18 is accepted but is irrelevant; see p. 7 above. The first three sentences of paragraph 19 are accepted. The record does not disclose how many licensed physicians may performed surgery at the Center; therefore the fourth sentence is rejected. The record does support a finding that Drs. Alexander, DeGeronimo, and Garcia-Lavin worked there and that the facility only used one surgical room. Paragraph 20 is rejected as irrelevant to the issues of this case. Paragraph 21 is rejected as irrelevant, immaterial or unnecessary to the resolution of the issues of this case. Paragraph 22 is rejected as irrelevant, immaterial, contrary to the evidence or unnecessary to the resolution of the issues of this case. The first two sentences of paragraph 23 are accepted, the remainder is rejected as contrary to the credible evidence, irrelevant, or immaterial to the resolution of the issues of this case. Paragraphs 24-26 are rejected as contrary to the weight of the evidence, irrelevant or immaterial to the resolution of the issues of this case. It is possible that Petitioner remained associated with the Center and also worked for Dr. DeGeronimo. The testimony of the three (Petitioner, Alexander, and DeGeronimo) does not conflict. COPIES FURNISHED: Rodney W. Bryson Bryson & Berman, P.A. Suite 219 8525 N.W. 53rd Terrace Miami, Florida 33166 Ann Cocheu Assistant Attorney General Department of Legal Affairs Suite 1603, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
