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.
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Sandra Ann Lindstrom (“Ms. Lindstrom” or “Respondent”), a licensed physician assistant, prescribed Lorcet, a medication containing a controlled substance (hydrocodone), in violation of the Florida Statutes and the Florida Administrative Code as charged in the Amended Administrative Complaint filed at the Department of Health in DOH Case No. 2006-36542 on October 27, 2014. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Department of Health is the state agency responsible for regulating the practice of physician assistants in the State of Florida. The regulation is pursuant to both chapter 456 (“Health Professions and Occupations, General Provisions”) and chapter 458 (“Medical Practice”), Florida Statutes. Respondent is licensed as a physician assistant by the Board of Medicine. Her license number is PA 9103823. The license was effective on August 3, 2006, with an expiration date of March 31, 2008. Her license has been continuously renewed since its effective date. See Pet’r’s Ex. A. Ms. Lindstrom is not licensed to practice medicine as a physician. Id. Physician Assistants Physician assistants are governed by section 458.347, a section within the chapter of the Florida Statutes that governs Medical Practice. Physician assistant licensure is provided for in section 458.347(7), and the Board of Medicine is authorized to “impose any of the penalties authorized under ss. 456.072 and 458.331(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter [Ch. 458] or chapter 456.” § 456.347(7)(g), Fla. Stat. A physician assistant’s supervisory physician may delegate authority to conduct aspects of medical practice to a physician assistant under circumstances expressed in the statutes. The limited medical practice that may be delegated to a physician assistant includes certain practices at county health departments. Whether conducting the delegated practice of medicine at a county health department, or not, physician assistants may be delegated authority to prescribe medications provided they are not listed on a formulary created pursuant to section 458.347(7)(f). See § 458.347(7)(d) and (e), Fla. Stat. The formulary must include “controlled substances as defined in chapter 893.” § 458.347(7)(f)1., Fla. Stat. In sum, physicians may not delegate to physician assistants the prescription of medications which are controlled substances as defined in chapter 893, Florida Statutes. The Department’s Investigative Office The Department has an investigative office charged with looking into regulatory complaints. In a typical regulatory investigation, the investigator discloses his identity to any party interviewed, whether the party is the source of the complaint, a witness, or, if amenable to an interview, the licensee who is the subject of the complaint. Aside from interviews, the investigations include record reviews, the obtaining of evidence, and the preparation of an investigative report. In addition to investigating complaints of regulatory violations by licensed health care practitioners, the investigative office looks into cases of unauthorized practice by unlicensed individuals. Investigations of unlicensed activity are conducted by what is known as the “ULA” section of the office. Commonly, ULA investigations are done by investigators who are “undercover,” that is, the investigators hide their identity as investigators and use pseudonyms rather than their actual names. Typically, undercover ULA investigators present at the offices of the subjects of investigation. If the unlicensed subject of the investigation offers to perform services that require a license or engages in practice that requires a license, the Department pursues remedies, including an order that the subject cease and desist from the unlawful, unlicensed activity. Investigations of a licensee for practicing outside the scope of the licensed activity may be viewed as something of a hybrid of a typical regulatory investigation and a ULA investigation. It is regulatory since the subject is a licensee, but it is usually done undercover in the same manner in which a ULA investigation is conducted. One such investigation was conducted by Ryan Heal, an employee of the Department between August and December of 2006. Mr. Heal conducted the investigation undercover using a pseudonym referred to in Department documents as “RJ.” RJ and the 2006 Investigation of JHS Mr. Heal has been a medical malpractice investigator for the Department since November 2000. During the course of his more than 15 years as a Department investigator, Mr. Heal has investigated both regulatory violations and unauthorized practice violations. In 2006, allegations reached the Department that prescriptions were being written at Jacksonville Health Systems (“JHS”), a clinic located on Baymeadows Road in Jacksonville, Florida, by a physician assistant without the supervision of a physician. In response, the Department launched an investigation. The investigation was conducted undercover by Mr. Heal using his pseudonym RJ. Commenced in August of 2006, the investigation lasted until the following December. August 10, 2006 On August 10, 2006, Mr. Heal, using his fictitious name, presented at JHS. A woman behind the counter in the reception area accepted a cash payment for the visit. She took RJ’s blood pressure and requested the name of the pharmacy for any medicine prescribed. To the best of Mr. Heal’s recollection, the receptionist recorded some of the information. After the interaction with staff in the reception room, Mr. Heal took a seat and waited to be called back to the examination room. Shortly thereafter, Ms. Lindstrom emerged and asked for RJ. Mr. Heal “stood up and went over to her.” Hr’g Tr. 19. Ms. Lindstrom identified herself by her first name and said, “I’m the provider here.” Id. Ms. Lindstrom accompanied Mr. Heal to the examination room where only she and Mr. Heal were present. After Mr. Heal complained of back pain, Ms. Lindstrom asked where in his back the pain was located and what caused it, but she did not conduct a physical examination. As Mr. Heal testified at hearing, “[t]here was no examination. She never touched my back. Never took vitals or anything.” Hr’g Tr. 20. Ms. Lindstrom suggested that Mr. Heal use a chair with lumbar support, try stretching, lose weight, and have an MRI. Ms. Lindstrom then stated that she would prescribe medication to treat the pain: Lorcet, Flexeril, and Motrin. With the visit in the examination room concluded, Ms. Lindstrom took Mr. Heal back to the receptionist. The meeting in the examination room and his first visit to the JHS offices being over, Mr. Heal departed the JHS facility. He did not return until the following October. October 31, 2006 Mr. Heal returned to the JHS facility on October 31, 2006. The process during the second visit was similar to the one followed during the visit the previous August. He presented as “RJ.” A staff member took his blood pressure in the reception area and he paid her $90 in cash. Mr. Heal sat down and waited to be called. Again, Ms. Lindstrom appeared in the reception area and took him to the examination room in the back. The visit was shorter than it had been in August. Ms. Lindstrom asked if his pain had improved and if an MRI had been done. With the intention of calling in his prescriptions, Ms. Lindstrom showed Mr. Heal a list of five pharmacies from which to choose. Mr. Heal, however, took a tack that was different from Ms. Lindstrom’s intention and from his first visit: I explained to her that I did not have reliable transportation and asked [for] . . . handwritten prescriptions . . . so that I could take them to whatever pharmacy was convenient . . . . She agreed that she could write them that time, but that on the next visit, I would have to arrange for proper transportation to get to the pharmacy or wherever they needed to be called into. Hr’g Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two of them were for “Flexeril 10mg (ten) #30 (thirty)” and “Ibprofen (sic) [Ibuprofen] 800mg #120 (one twenty).” Pet’r’s Ex. B. The third prescription was for “Lorcet 10/650 #90 (Ninety).” Id. Ms. Lindstrom explained to Mr. Heal that he should use one of the five pharmacies on her list because “several [of the Clinic’s patients] had been kicked out of pharmacies . . . [that] were refusing to fill the prescriptions.” Hr’g Tr. 25. Ms. Lindstrom also “mentioned that a couple of her patients had been arrested for forging prescriptions.” Hr’g Tr. 25-6. At no time during his visit to JHS on October 31, 2006, did Mr. Heal see a physician. No one entered the examination room where Ms. Lindstrom met with Mr. Heal that day. Nor did Ms. Lindstrom leave the examination room while Mr. Heal was present in the room. Like the first visit the previous August, Ms. Lindstrom recommended that Mr. Heal have an MRI. She explained that results from an MRI were needed “in case the DEA wanted to look at the file, to show that [she and JHS] were actually treating [Mr. Heal] for something.” Hr’g Tr. 28. December 1, 2006 Little more than a month later on December 1, Mr. Heal made a third visit to JHS. The reception process was the same. The receptionist took his blood pressure, he paid $90 in cash, and waited in the reception area for Ms. Lindstrom to call him back. While waiting, he was informed that the number of pharmacies that would accept JHS prescriptions had been drastically reduced. Only one pharmacy would now accept JHS prescriptions: a pharmacy called New Horizon. Subsequent to the third visit, Mr. Heal presented to the pharmacy identified as New Horizon. In the company of law enforcement and with its supervision, Mr. Heal had the prescriptions filled for three medications: Flexeril, Ibuprofen at a prescription-strength dosage, and Lorcet. Supervising Physician and Other Claims At hearing under oath, Ms. Lindstrom admitted that she treated Mr. Heal once at the JHS facility and admitted that she prescribed Flexeril and Ibuprofen for him. She claimed under oath that the supervising physician for the 2006 visit in which she prescribed the two medications was James Hendrick, M.D. The Department produced documentation in the Department’s official business records that shows that Dr. Hendrick cancelled his Professional Liability Insurance Policy effective October 1, 2005, the year before Ms. Lindstrom claims to have seen Mr. Heal at the JHS facility under Dr. Hendrick’s supervision. The reason for the cancellation of the policy is listed on the letter from the insurer to the Department as “Retired.” Pet’r’s Ex. F, letter dated October 17, 2005, from FPIC, First Professionals Insurance Company. Department records also include an “Address Change” form that contains a section entitled “Financial Responsibility” dated November 21, 2005, the year before the incidents in this case. No boxes are checked in the section that shows “Financial Responsibility Coverage.” Under a section on the form entitled, “Category II: Financial Responsibility Exemptions,” Dr. Hendrick checked a box that indicated he was “retired or maintain[ed] part-time practice,” id., at least as of late November 2005, 11 months or more before the October 31, 2006, visit by Mr. Heal. Ms. Lindstrom made other claims with regard to RJ’s visit that she asserted occurred on October 3, 2006, rather than October 31, 2006, as charged. Among them was that she left the examination room after completing the prescriptions for Flexeril and Ibuprofen and partially completing a third prescription by inserting all the information, including her signature, except for the medicine to be prescribed and how often it should be taken. Ms. Lindstrom claimed that she intended to write a prescription for Lodine, but failed to write down “Lodine” on the third prescription form because she was distracted by a discussion with Mr. Heal about the need for RJ to have an MRI. She says she left the room to make arrangements for an MRI and when she returned, RJ was gone, together with the two filled out prescriptions, the third incomplete prescription, and her prescription pad. Ms. Lindstrom’s testimony about the theft of the pad and other details about the event, including when it occurred, is not credible. In contrast, Mr. Heal’s testimony about the visits he made to the JHS facility, seeing Ms. Lindstrom, and her prescription of Lorcet, is credited as truthful. Lorcet Lorcet contains hydrocodone, which is a controlled substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent Sandra A. Lindstrom, P.A., violated section 458.331(1)(nn), Florida Statutes (2006), by violating Florida Administrative Code Rule 64B8-30.008 (2006), as charged in the Amended Administrative Complaint; Imposing a $2,500 fine; and Revoking Respondent’s license as a physician assistant. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2016. COPIES FURNISHED: Sandra Ann Lindstrom 6726 Pomeroy Circle Orlando, Florida 32810 Yolonda Y. Green, Esquire Maciej Lewandowski, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue This is a license discipline case in which the Petitioner, by means of a one-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of Section 458.331(1)(c), Florida Statutes (2002).
Findings Of Fact The Respondent, Eduardo S. Mendez, M.D., was born in Cuba, was reared in Cuba, and was educated in Cuba. His education in Cuba included a degree in Medicine. He came to the United States of America in 1995. Shortly after moving to this country, the Respondent became the owner of a retail pharmacy and medical equipment business in Florida. The Respondent did not have a license to practice pharmacy in Florida. On the basis of conduct which took place between July of 1998 and June of 2000, an Information was issued in Case No. 02-20859 in the United States District Court for the Southern District of Florida charging the Respondent with engaging in a conspiracy to pay and receive health care kickbacks in violation of Title 18, United States Code, Section 371. The basic facts forming the basis for the criminal charge are described as follows in the Information: Medicare was a "Federal health care program" as defined in Title 42, United States Code, Section 1320a-7b(f)(1). Confortec D.M.E., Inc. ("Confortec") was a pharmacy located in Miami, Florida. Confortec was authorized by Medicare to submit claims to Medicare Part B for reimbursement of the cost of certain medications that Confortec dispensed by prescription to Medicare beneficiaries. Defendant EDUARDO S. MENDEZ was a resident of Miami and the sole owner of Confortec. Defendant EDUARDO S. MENDEZ offered to pay kickbacks to various patient recruiters so that they would provide the names and Medicare identification numbers of Medicare beneficiaries, along with prescriptions relating to these beneficiaries. Confortec filled these prescriptions and then filed claims with Medicare for reimbursement of the cost of the prescribed medications. After receiving payment on these claims from Medicare, defendant EDUARDO S. MENDEZ used a portion of the payments to pay kickbacks to the patient recruiters or their associates. * * * 12. Using a portion of the money received from Medicare payments, defendant EDUARDO S. MENDEZ paid or caused to be paid approximately $200,000 in kickbacks to the patient recruiters or their associates so that the recruiters would continue to refer Medicare beneficiaries and related Medicare prescription business to Confortec. Following his arrest, the Respondent cooperated extensively with the Federal Bureau of Investigation (FBI) and assisted the FBI in their investigation of his own activities, as well as in their investigation of similar criminal activities by others. Because of the Respondent's assistance to the FBI, the federal prosecutor recommended a substantial reduction in the sentence that might otherwise have been imposed on the Respondent. On November 14, 2000, the Respondent entered into a plea agreement in which he agreed "to plead guilty to an Information or an Indictment that charges him with the crime of conspiracy to commit an offense against the United States, namely, a violation of Title 42, United States Code, Section 1320a-7b(b)(2)(knowingly and intentionally offering and paying kickbacks and bribes to any person to induce the referral of individuals for the furnishing of services or items for which payment may be made under a Federal health care program), in violation of Title 18, United States Code, Section 371." On or about February 12, 2003, a United States District Judge signed a judgment in which the Respondent was adjudicated guilty of the criminal offense described above. The Respondent's sentence was three years of probation, three months of home confinement (with electronic monitoring), 150 hours of community service, and a fine of $100.00. The Respondent has fulfilled all of the terms of his sentence. Although the recruitment methods described above are prohibited by federal law and are a crime, that criminal activity does not involve any element of fraudulent billing seeking reimbursements from the Medicare program for services or items that were not provided. To the contrary, all of the prescriptions for which Confortec sought Medicare reimbursement were prescriptions that were actually filled for medications that were actually provided to the Medicare beneficiaries. During the period from July of 1998 through June of 2000, the Respondent did not have a license to practice medicine in Florida. Accordingly, the criminal conduct described above was not related to the Respondent's practice of medicine, because the Respondent was not practicing medicine at that time. As discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the practice of medicine by the physicians who wrote the prescriptions that were filled in the course of the subject criminal activity. As also discussed in greater detail in the conclusions of law, the criminal conduct described above was directly related to the ability to practice medicine. The Respondent is presently a physician licensed to practice medicine in the State of Florida. He has been so licensed since November of 2001. His license number is 83615. The criminal charges described above are the only criminal charges that have ever been filed against the Respondent. There has never been any prior disciplinary action taken against the Respondent's license to practice medicine.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a final order be entered finding the Respondent guilty of violating Section 458.331(1)(c), Florida Statutes (2002), and imposing the following penalties: Suspending the Respondent's license to practice medicine for a period of nine months; Imposing an administrative fine in the amount of five thousand dollars; and When the Respondent is reinstated following the nine- month period of suspension, placing the Respondent on probation for a period of two years subject to such terms of probation as may appear to the Board of Medicine to be necessary and appropriate. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2005.
Findings Of Fact On July 6, 1982, the Respondent received an application for licensure by endorsement submitted by the Petitioner. By a notice of intent to deny dated January 18, 1983, the Respondent notified the Petitioner that it was denying his application. The Respondent expressly stated in its notice that this denial was because the Petitioner "did not average 75 percent on FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required in Rule 21M-29.01(2) , Florida Administrative Code," and because he "is not certified by the National Board of Medical Examiners as having completed its examination, within ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes." Prior to June, 1980 the Federation of State Medical Boards of the United States, Inc., which prepares and administers the FLEX examination, mathematically calculated the final weighted average by a round up method. Thus, a weighted average of 74.50 percent to 74.99 percent was rounded up to 75.0 percent and was deemed to be a passing grade by the Board. Beginning with the June, 1980 examination, the Federation changed its policy. Since then the weighted average is no longer rounded up, but the decimal or fraction is dropped entirely. Scores of 74.99 percent are now rounded down to 74.0 percent. The FLEX scores presented to the Respondent by the Petitioners produce a FLEX weighted average of 74.6 percent. Because scores have been rounded down since June, 1980 the Petitioner's 74.6 percent score was treated as 74.0 percent, and the Petitioner was found not to meet the 75.0 percent requirement. Although the Petitioner testified that he knew of one other individual with similar scores who was licensed by the Respondent, he produced no corroborative evidence to support this self-serving assertion, and he introduced no evidence to show why, in view of the FLEX requirement of 75.0 percent, he is entitled to licensure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application for licensure by endorsement filed by the Petitioner, Esmat Adly Zaklama, M.D., be DENIED. DONE and RECOMMENDED this 10th day of May, 1983, in Tallahassee, Florida. COPIES FURNISHED: Esmat Adly Zaklama, M.D. 7 Hegeman Avenue No. 7-H Brooklyn, New York 11212 WILLIAM B. THOMAS, 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 10th day of May, 1983. John E. Griffin, Esquire Assistant Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
