Findings Of Fact The Petitioner, Frederick Norman, is an orthodontist and acupuncturist who is licensed to practice in both disciplines in New York and in Aruba. He is in the process of moving from Long Island to Naples, Florida, and he seeks to become licensed to practice acupuncture in Florida. To this end, the Petitioner took the August, 1982, acupuncture examination in Florida. He passed all parts of this examination except Part IV which he failed. Part IV is the clinical practical portion of the exam, testing needle insertions, manipulation, and removal. In approximately July, 1981, Harriet Williams, employed as an examination development specialist by the Department of Professional Regulation, began the development of the Florida acupuncture examination. She commenced by reviewing the acupuncture statute and rules for the definition of acupuncture, and the general areas to be tested. In order to prepare the examination, Ms. Williams consulted practicing acupuncture experts regarding the scope of knowledge involved in acupuncture, and what activities are critical to the practice, the basic training requirements for the practice, and which skills would have to be demonstrated to show competency and not be dangerous to the public. Ms. Williams then investigated testing feasibility on the different critical areas of acupuncture in order to develop the practical examination. Practical examinations are by definition not referenced to specific textbooks, but are based on the actual practice of a profession. Other states with acupuncture licensure examinations were consulted and, based on the definition in the statute and the practicalities of the situation, it was decided that the Florida acupuncture examination would involve needle insertion into basic common points, and methods of stimulation which are fundamental and basic to the practice of acupuncture, and that the needling would be done on the candidates themselves. Since the State of California had been conducting licensure examinations and had been licensing acupuncturists since 1976, it was decided that examiners would be requested from California for both the December, 1981, and the August, 1982, examinations. Examiners with five years experience, doctorate degrees in Medicine or Oriental Medicine, vast training, California certification, and active acupuncture practices were requested. The regulation of acupuncture is new and unique in Florida because of the State's limited experience with it. In December, 1981, the Department of Professional Regulation gave the first acupuncture examination for licensure in Florida. In August, 1982, prior to the examination which is the subject of this proceeding, California acupuncture licensure examiners were brought into Florida, and were trained to administer the Florida acupuncture licensure performance examination. They were trained extensively as to their responsibilities and the standards which the State of Florida was looking for. The Department did not specify by rule the criteria by which these examiners were to be selected, as required by Section 455.217(1)(b), Florida Statutes. However, the actual qualifications of the examiners were not challenged in this proceeding. The examiners were selected by the Department on the basis of guidelines which required them to be licensed in California and actually treating patients, to have at least five years experience, extensive training in acupuncture, and a degree in Medicine or Oriental Medicine. The examiners were given standards or guidelines to assist them in judging how to grade a candidate's performance, and they administered the practical acupuncture examination August 2-5, 1982, which was taken by the Petitioner. The Petitioner has a fear of needles which he considers a phobia but not a handicap. He could not look at the acupuncture point while he inserted the needle, because of his phobia. Examiners Miles Roberts and Miriam Lee observed the Petitioner's practical acupuncture performance and marked their examination grade sheets accordingly. From one examiner the Petitioner received a barely passing grade on all three points, and from the other examiner, the Petitioner received a barely failing grade on two points and a low failing grade on the third point. Drchi is the needle sensation which indicates that a specific point has been properly stimulated. The Petitioner claimed to have attained drchi on at least two points, but he was not sure on the third one. There is no objective way for the examiners to ascertain whether or not a candidate has achieved drchi. In order to demonstrate acupuncture needling, it is helpful to do it into a human body, and it is necessary to do it into a specific acupuncture point. Angling of the needle with and against the flow of energy, twisting and twirling, lifting and thrusting the needle, and closing the hole or leaving it open for sedation and tonification, are basic fundamental techniques in the practice of acupuncture, but candidates are not penalized for using any auxiliary methods in addition. The grading criteria for the acupuncture examination is contained in Section 21-12.22(5)(a)-(e), Florida Administrative Code. This rule essentially describes how the examiner should reach a decision about how a grade is cast. This particular grading criteria must be applied through the use of expert judgment. The weight for each grading criteria is also given in this rule. The grading criteria are general in nature, rather than specific and detailed, because of the uniqueness of acupuncture as a technique in Florida. The techniques tested by the exam, however, are basic, fundamental, acupuncture techniques which all entry level licensed acupuncturists should know. The examiners agreed on whether a candidate should pass or fail the August, 1982, acupuncture examination on approximately 81 percent of their observations. On their observations of the Petitioner, this agreement was 86 percent. The pass rate for the August, 1982, acupuncture examination was in the range of 30 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of Frederick Norman for licensure as an acupuncturist be DENIED, based on his failure to achieve a passing grade on the August, 1982, acupuncture examination. THIS RECOMMENDED ORDER entered this 5th day of April, 1983, in Tallahassee, Florida. 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 5th day of April, 1983. COPIES FURNISHED: Carlos Alvarez, Esquire, and Carolyn S. Raepple, Esquire Post Office Box 6526 Tallahassee, Florida 32314 Drucilla E. Bell, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mrs. Ann Mayne Acupuncture, Executive Director 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license to practice as an osteopathic physician's assistant and/or a physician's assistant, based on alleged violations of Section 459.015(1)(n), (x), and (cc) and 458.331(1)(s), (v), and (x), Florida Statutes.
Findings Of Fact Respondent, William Dana Holton, is a licensed osteopathic physician's assistant in Florida, holding license numbers OA 0000027 and OA 0000097. Additionally, Respondent is a licensed physician's assistant in Florida, holding license number PA 0001538. For several years, Respondent has been experiencing a great deal of chronic pain associated with his back. Because of this pain, Respondent obtained a number of prescriptions for pain killers and muscle relaxers from various physicians. From May, 1989, through October, 1989, Respondent obtained a variety of medicinal drugs, in various amounts and dosages from two different pharmacies. The majority of these prescriptions were for pain killers. The Respondent represented to each pharmacist that the prescriptions had been authorized by a certain physician. The type of drug, quantity obtained, dosage, date obtained, pharmacist involved, and physician represented as the prescribing physician are as follows: Substance Amount Dosage Date Pharmacist Physician Anexsia 30 7.5 mg 5-18-89 Lanier Velasco Anexsia 30 7.5 mg 5-29-89 Lanier Velasco Anexsia 30 7.5 mg 6-08-89 Lanier Velasco Anexsia 30 7.5 mg 6-13-89 Lanier Velasco Diazepam 20 5.0 mg 5-18-89 Lanier Velasco Diazepam 20 5.0 mg 5-29-89 Lanier Velasco Diazepam 20 5.0 mg 6-13-89 Lanier Velasco Anexsia 50 7.5 mg 6-27-89 Lanier Noblejas Anexsia 50 7.5 mg 7-05-89 Lanier Noblejas Anexsia 50 7.5 mg 7-14-89 Lanier Noblejas Anexsia 50 7.5 mg 7-24-89 Lanier Noblejas Anexsia 50 7.5 mg 7-31-89 Lanier Noblejas Anexsia 50 7.5 mg 8-07-89 Lanier Noblejas Anexsia 50 7.5 mg 8-14-89 Lanier Noblejas Donnatal Elixer 4 oz. 8-07-89 Lanier Noblejas Anexsia 50 7.5 mg 8-21-89 Lanier Noblejas Anexsia 50 7.5 mg 8-29-89 Lanier Noblejas Anexsia 50 7.5 mg 9-02-89 Lanier Noblejas Anexsia 50 7.5 mg 9-08-89 Lanier Noblejas Anexsia 50 7.5 mg 9-14-89 Lanier Noblejas Anexsia 50 7.5 mg 9-23-89 Lanier Noblejas Diazepam 20 5.0 mg 8-21-89 Lanier Velasco Diazepam 20 5.0 mg 9-02-89 Lanier Velasco Diazepam 20 5.0 mg 9-14-89 Lanier Velasco Diazepam 20 5.0 mg 9-23-89 Lanier Velasco Anexsia 50 7.5 mg 9-28-89 Lanier Levinson Anexsia 50 7.5 mg 10-05-89 Lanier Levinson Anexsia 50 7.5 mg 10-16-89 Lanier Levinson Anexsia 30 7.5 mg 12-28-89 Hill Serrebutra Anexsia 30 7.5 mg 01-12-89 Hill Serrebutra Anexsia 15 7.5 mg 03-01-90 Hill Serrebutra Anexsia 30 7.5 mg 03-09-90 Hill Velasco Anexsia 30 7.5 mg 03-29-90 Hill Velasco Diazepam 30 5.0 mg 03-29-90 Hill Velasco Zydone 30 7.5 mg 05-02-90 Hill Velasco Zydone 31 7.5 mg 05-31-90 Hill Velasco Anexsia 30 7.5 mg 06-06-90 Hill Velasco Zydone 31 7.5 mg 06-30-90 Hill Velasco Vicodin 50 5.0 mg 07-01-90 Hill Noblejas Anexsia is a pain killer. Diazepam is the generic name for Valium. Donnatal Elixer is a muscle relaxant. Zydone is chemically equivalent to Anexsia and is a pain killer. Vicodin is similar to Anexsia and is a pain killer. All of the drugs are controlled substances. Except for Dr. Levinson, the evidence demonstrated that the listed physicians prescribed the relevant medications to Respondent and that these prescriptions were filled pursuant to those physician's prescriptions. However, the evidence clearly demonstrated that Dr. Levinson did not authorize any of the prescriptions listed in paragraph 3. Respondent believed that Dr. Levinson had authorized the prescriptions listed by his name via a general protocol for such treatment. However, such a belief does not equal an express prescription of a controlled substance by a physician and should not have been used by Respondent to obtain the drugs listed above. In essence, Respondent was prescribing medications for himself in violation of Section 459.015(1)(cc) and Rule 21R- 6.005(b) Florida Administration Code, and Section 458.331(1)(v), Florida Statutes. Sometime between September 26, 1989, and October 19, 1989, Dr. Dana Levinson saw Respondent at the Wellsprings Clinic in Carrabelle, Florida. The visit occurred on a weekend after Respondent had seen several patients during the day. Dr. Levinson observed that Respondent's speech was slurred, his hands were trembling and his pupils were small. Dr. Levinson, an osteopathic physician was of the opinion that the Respondent was under the influence of a narcotic or depressant drug. On October 21, 1989, Respondent was unable to have his prescription for Anexsia from Dr. Velasco filled at the pharmacy which had the prescription on file. The pharmacy was closed for the evening. Because Respondent felt he needed the pain killer for his pain and was unable to think clearly because of the excessive amounts of medications he was taking, 1/ he devised a scheme for obtaining the drug from another pharmacy. On October 21, 1989, the Respondent phoned in a prescription for Anexsia in the name of Emily Dinkins to the Eckerds Pharmacy located at 2526 South Monroe Street, Tallahassee, Florida. The Respondent told the pharmacist that the prescription had been authorized by Dr. Levinson. Dr. Levinson had not authorized the prescription. The prescription was intended by Respondent to be for his own use. Respondent instructed Emily Dinkins to go into Eckerds and pick up the prescription that he had ordered. He did not tell her that the prescription was in her name. Respondent was arrested on October 21, 1989, at the pharmacy for fraudulently trying to obtain a prescription. The charges were later dismissed. The incident on October 21, 1989 and Dr. Levinson's observation of Respondent clearly demonstrate that Respondent was taking enough medication to impair his ability to practice his profession and think clearly. Because Respondent was impaired, his continuing to practice during September and October, 1989, constituted a very serious violation of Section 459.015(1)(x), Florida Statutes, and Section 458.331(1)(s), Florida Statutes. Additionally, there is no doubt that Respondent attempted to utilize a trick or scheme in the practice of his profession and in pursuit of that scheme, on October 21, 1989, made a false statement to the Eckerd's pharmacist. It is immaterial that the criminal charges were dismissed. Such activity on Respondent's part is a serious violation of Section 459.015(1)(n), Florida Statutes, and Section 458.331(1)(v) and (x), Florida Statutes. After his arrest on October 21, 1989, the Respondent entered an inpatient drug treatment program. Against medical advice, Respondent left the program after only four weeks. However, Respondent continued out patient drug treatment. The outpatient treatment was telephonically approved by Dr. Goetz, the physician who oversees the impaired practitioners program. Respondent has not since entered any other inpatient drug treatment program, but has ceased taking the medication referenced above. Respondent now controls his back pain with aspirin and appears to again be in control of his life. To practice as a physician's assistant a licensee is required to have a supervising physician or osteopathic physician. From August 1, 1988 to January 19, 1989, the Respondent's supervising physician was Dr. Chai Serrebutra, M.D.. Between April 20, 1989, and June, 1989, the Respondent's supervising physician was Dr. Maximo Velasco, M.D.. The evidence, and in particular the insurance claim forms, does not support Respondent's contention that Dr. Velasco began supervising Respondent earlier than April 20, 1989. Dr. Velasco signed these claim forms for the Wellsprings Clinic. The earliest signature date for Dr. Velasco was April 20, 1989. On that date, Dr. Velasco signed several forms for treatment which had been rendered to various patients prior to April 20, 1989. However, the treatment given these patients occurred during a time when Dr. Serrebutra was Respondent's supervising physician and in fact had both directly and indirectly supervised Respondent. Therefore, the evidence did not demonstrate that Respondent had treated any patients while he was unsupervised during this interim period. Between May 1, 1989 and May 12, 1989, Dr. Velasco was in Omaha, Nebraska. During the time that Dr. Velasco was in Omaha, Nebraska, Respondent treated several patients at the Wellsprings Clinic in Carrabelle, Florida. The patients and the dates they were treated by Respondent are as follows: Patient's Initials Date E.M. 5-2-89 J.S. 5-2-89 J.M. 5-2-89 J.E. 5-4-89 F.M. 5-4-89 S.B. 5-4-89 A.B. 5-4-89 N.N. 5-4-89 M.B. 5-4-89 L.M. 5-4-89 S.S. 5-4-89 A.J. 5-4-89 L.W. 5-4-89 L.W. 5-4-89 T.T. 5-5-89 D.B. 5-6-89 D.H. 5-6-89 W.B. 5-6-89 V.M. 5-6-89 P.W. 5-6-89 A.C. 5-8-89 L.L. 5-8-89 L.T. 5-8-89 W.J. 5-8-89 L.T. 5-8-89 J.T. 5-8-89 R.P. 5-8-89 E.H. 5-9-89 M.W. 5-9-89 D.T. 5-9-89 M.R. 5-11-89 T.T. 5-11-89 C.B. 5-11-89 G.E. 5-11-89 M.R. 5-11-89 M.W. 5-11-89 T.R. 5-11-89 R.H. 5-11-89 L.M. 5-11-89 J.J. 5-12-89 C.S. 5-12-89 R.M. 5-12-89 R.L. 5-12-89 T.R. 5-12-89 C.B. 5-12-89 C.J. 5-12-89 S.C. 5-12-89 W.J. 5-12-89 While Dr. Velasco was in Omaha, Nebraska, the Respondent talked to him for five minutes or less by telephone. The Respondent and Dr. Velasco did not discuss specific cases during this telephone conversation. In each case, a preliminary final diagnosis was made by Respondent. The diagnoses were made by the Respondent without direct supervision by Dr. Velasco, Respondent's supervising physician. The preliminary final diagnoses were made pursuant to general unwritten protocols established by Dr. Velasco and were well within Respondent's training, competence and skill. The evidence did not demonstrate tht any treatment of these patients required any direct intervention from the doctor or that such direct supervision was requried. To that extent the preliminary final diagnoses were made at the direction of Respondent's supervising physician and were within the parameters of Chapter 458 and 459, Florida Statutes and Rules 21M-17.001(6), 21M-17.012 and 21R-6, Florida Administrative Code. Between September 26, 1989, and October 19, 1989, Dr. Dana Levinson was the Respondent's supervising osteopathic physician. In early October, 1989, Respondent phoned K-Mart Pharmacy in Apalachicola and placed prescription orders for various medicinal drugs with the pharmacist, Beverly Kelley, for several different patients. The patients involved, drugs prescribed, and the dates of the prescriptions, were as follows: Patient's Initials Drug Date J.T. Tigan 10-11-89 J.T. Halcion 10-11-89 J.T. Anexsia 10-11-89 J.T. Valium 10-11-89 V.M. Flexeril 10-11-89 V.M. Anexsia 10-11-89 L.T. Halcion 10-11-89 L.T. Duricef 10-11-89 L.T. Valium 10-11-89 L.T. Phrenilin Forte 10-11-89 L.T. Nucofed 10-11-89 L.H. Valium 10-11-89 L.H. Ionamin 10-11-89 T.T. Valium 10-14-89 T.S. Valium 10-14-89 The Respondent represented to Kelley that these prescriptions were authorized by Dr. Levinson. Dr. Levinson did not expressly authorize any of the prescriptions listed above and did not directly oversee the treatment and diagnosis of the patients. Again, Respondent performed these patient services pursuant to unwritten general protocols everyone involved, including the supervising physician, seemed to take for granted that everybody had knowledge of. To Respondent's credit, neither Dr. Serrebutra, Velasco nor Levinson had problems with Respondent's treatment of any of the patients treated by Respondent and Respondent was generally viewed as a competent physician's assistant, able to handle routine matters through general protocols and without the immediate supervision or direction of a physician. The lack of immediate supervision or direction does not violate Chapter 458 or 459, Florida Statutes, or the rules promulgated thereto. What does constitute a violation of Chapter 458 and 459 is that, during Dr. Levinson's supervisory time period, Respondent's services included the prescription of controlled substances which had not been specifically ordered or requested by Dr. Levinson. Respondent's actions were due in part to the lack of any written protocols and a very vague and ill- defined understanding of Respondent's duties between Respondent and Dr. Levinson. 2/ Since a physician's assistant has no authority and is prohibited by Rule from prescribing medication to patients, Respondent's actions, violated Section 459.015(1)(cc), Florida Statutes and Section 458.331(1)(v) and (x), Florida Statutes. See Rule 21M-17.012(2)(a)(7)b., Florida Administrative Code and Rule 21R-6.010(7), Florida Administrative Code. Petitioner has demonstrated by clear and convincing evidence that Respondent committed four violations in regards to his physician's assistant license and the same four violations in regards to his osteopathic physician's assistant license. The evidence did not demonstrate that an aggravated penalty should be imposed for any one of the violations. However, because of the number of violations, one composite penalty should be imposed for all the violations for each license. The composite penalty should not exceed the highest penalty which could be imposed for the most seriously penalized infraction under each Board's rules.
Recommendation It is accordingly, recommended that the Board of Medicine and the Board of Osteopathic Medicine each enter a Final Order finding the Respondent guilty of violating Section 458.331(1)(s), (v) and (x) and 459.015(1)(n), (x) and (cc), Florida Statutes and as punishment therefore: Respondent's license to practice as a physician's assistant in the State of Florida, number 0001538, should be suspended for two years beginning with the date of his temporary suspension on January 12, 1990, after which Respondent should be placed on a 2 year period of probation with direct supervision during which Respondent shall demonstrate to the Board his ability to practice with reasonable skill and safety. Additionally, Respondent should be required to successfully complete coursework involving the scope and practice of his profession and be assessed a $1,000 fine to be paid over the course of his suspension and probation. Respondent's license to practice as an osteopathic physician's assistant in the State of Florida, numbered 0000027 and 0000097, should be suspended for 2 years beginning with the date of his temporary suspension on January 12, 1990, after which Respondent should be placed on a 2 year period of probation with direct supervision during which Respondent shall demonstrate to the Board his ability to practice with reasonable skill and safety. Additionally, Respondent should be required to successfully complete coursework involving the scope and practice of his profession and be assessed a $1,000 fine against Respondent to be paid over the course of his suspension and probation. RECOMMENDED this 2nd day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 2nd day of May, 1991.
Findings Of Fact Petitioner passed all parts of the acupuncture examination except section one of Part Four, which was the clinical practical segment of the examination. That portion required the demonstration of various needling techniques and was independently graded by two observer-examiners. Respondent then averaged the two grades to arrive at a single score for each technique Petitioner was required to demonstrate. Respondent administered its first acupuncture examination in December, 1981, and its second in August, 1982 (at issue here). The examinations were developed and administered in consultation with California examiners, since that state had the greatest experience in testing and licensing acupuncturists. Petitioner raised no factual dispute with respect to examiner credentials, qualifications tested, or the scoring system. Rather, Petitioner pointed to alleged errors by the examiners in administering and grading certain questions. Additionally, Petitioner contends the reading list given for the written portion of the examination was misleading in that it was not intended to apply to the practical portion. Petitioner points to several questions where he received full credit from one examiner and a much lower grade from the other. Rather than averaging the two grades, Petitioner believes the lower grades should be thrown out as errors. However, Respondent instructed its examiners to give full credit where they failed to observe a specific technique or were otherwise uncertain of the performance. Thus, there was no showing that these diverse grades were other than a result of an examiner's failure to observe (for which Petitioner was not penalized). Petitioner further challenges the instructions given, contending the examiner erred in administering certain questions. Again, however, it is at least as likely that Petitioner misinterpreted instructions which were properly given. Petitioner contends he was misled by the reading list provided in advance of the examination. It was not clear, as Respondent argues, that the reading list was intended only for the written portions of the examination. However, Petitioner did not show that this misunderstanding prevented him from performing satisfactorily on the practical portion of the examination. Petitioner challenges the examiner's "eyeballing" techniques to grade his selection of proper acupuncture points. Respondent concedes this is not a precise method in all cases. However, the tolerance permitted on point location will allow for slight examiner error as well as reasonable candidate error. This was shown to be an acceptable scoring method by the testimony of Respondent's expert witness.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition. DONE and ENTERED this 14th of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clarine Smissman, Esquire 217 North Eola Orlando, Florida 32801 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ann Mayne, Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 R. T. CARPENTER 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 14th day of July, 1983.
The Issue The issue for consideration herein was whether Petitioner was properly graded for her performance of the Procedure in the Binocular Indirect Ophthalmoscopic testing on the Florida Optometry Examination conducted in Miami, Florida, on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Board of Optometry, (Board), was the state agency in Florida responsible for the licensing of optometrists in this state. Petitioner, Rhonda L. Wicks, graduated from the Southern California College of Optometry in 1985. She was licensed as a registered optometrist in California in 1985 and was thereafter commissioned in the United States Air Force in the grade of Captain. She was assigned as an optometrist at the MacDill Air Force Base Hospital in Tampa immediately thereafter, and in 1987, was made the Chief of the optometry service at that hospital, a position she still holds. In that capacity, she supervises several other optometrists and, in addition, sees approximately 20 patients per day for a total of over 14,000 patients since assuming that position. Approximately 10% of these involve the administration of the binocular indirect ophthalmoscopic, (BIO), procedure. In addition to passing the licensure examination in California, while still in school she passed the IAB, an internationally recognized certification examination, and, in addition, passed her national boards. Dr. Wicks took the 1988 Florida optometry examination given on September 16 - 18, 1988 at the Baskin-Palmer Eye Institute in Miami, Florida. When graded, she was found to have passed all portions of the examination except the clinical portion for which, on protest, she received an additional 2.5 points which raised her score to 73.5 out of a possible 100. The passing grade in this portion of the exam is 80. Primarily, her difficulties were in the area of the BIO procedure, worth 15 points, for which she was awarded only 2.5 points. She also experienced difficulty on the retinoscopy section for which she received 0 out of 8 possible points, but does not contest her score on that portion. She contests only the evaluation and grading of the BIO procedure. Dr. Wicks was graded by two examiners on the BIO procedure, each of whom gave her a "yes" or "no" grade on each of three sections. One examiner gave her three "no's" for a 0 score. The other examiner gave her two "no's" and a "yes". As a result, she was awarded one half credit or 2.5 points for the "yes" score given her by one examiner on one third of the procedure. In preparing for the written portions of the examination, she studied the materials furnished by the Department. She also considers her taking of the IAB as preparation for this examination. As for the clinical section, she felt comfortable using the practice she has carried on for three years as appropriate preparation except for 2 procedures for which she sought and received help from two ophthalmologists on staff at the MacDill Hospital. Prior to taking the examination, she read that portion of the study guide dealing with patient criteria, and was also familiar with that portion dealing with requirements of the BIO process. To her recollection, the study guide did not mention the required position of the patient during the accomplishment of the procedures but merely outlined what the candidate would be required to demonstrate. Examination of the study guide confirms Petitioner's understanding. The Department relies on that portion of the guide found on page 7 thereof which refers to the criteria for the patient supplied by the candidate and indicates that the patient must be willing to undergo a dilation procedure in the reclined position. The Board contends this indicates "advance notice" of the requirement that the BIO procedure be accomplished in the reclined position. This does not necessarily follow, however. The morning of the examination, one of the examiners briefed the candidates on the layout of the room in which the procedures would be done and the conditions under which they would be accomplished. It was at this time that Petitioner got her first notification that the BIO procedure would be done with the patient in the reclined position. It was also at this time, during the briefing, that the candidates were advised that they were not to be permitted to move the chair in which the patient was placed. At this point another candidate, who is, as is Petitioner, short of stature, asked if the candidate could sit the patient up in the chair and this candidate was advised that she could not. Under these conditions Petitioner attempted to perform the BIO procedure. When she found she could not do it because she was not tall enough, she notified her examiners of the problem and was told by one to "do the best you can." Her complaint of inability to accomplish the procedure because of the physical problem of her height was reiterated 3 times, and on each occasion, she received the same response. In the BIO procedure, the doctor examines the patient's eye through a lens in an attempt to get a view of the patient's retina. Petitioner contends that in order to properly and accurately accomplish the procedure, the doctor has to be 23 inches away from the patient's eye. This 23 inches is made up of the following segments: the distance between the instrument lens and the patient's eye must be approximately 2 inches; the lens in the instrument has a thickness of 1 inch; and the examiner should be approximately 20 inches away from the lens. Petitioner demonstrated through a diagram that the chair in which her patient was reclined placed the back of his head 30 inches from the floor. Added to that is the average 7 inch thickness of a human head from the back to the front of the eyeball. When that 37 inches is added to the 23 inches described, (patient's eye to examiner's eye), a total of 60 inches, (5 feet), is shown. To accomplish the procedure, the candidate must bend over so that the plane of his or her face is parallel to the floor in order to allow the candidate to look, with the instrument used, down through the lens into the patient's eye. According to Petitioner, when she places her head in the appropriate position to look down through the instrument, into her patient's eye, her eye is 53 inches from the floor. This is 7 inches below where it should be in order to properly accomplish the procedure with the patient reclined on the chair as it existed the day of this examination. Petitioner is 62 inches tall when standing straight, and 53 inches is insufficient to allow her to properly accomplish the procedure. She was not allowed either to move the chair or do the procedure with the patient sitting up. The day of the examination, Petitioner tried to accomplish the procedure by standing on her toes, by leaning back, and by taking other measures in an attempt to give her an appropriate view of the patient's eye. Nothing seemed to work. It was at this time she advised the two examiners observing her that she was physically unable to accomplish the procedure due to the height situation and was told, "do the best you can." Candidates are advised, prior to the examination, that if they experience difficulty of any nature during the examination, they are to bring it to the immediate attention of the examiner, and if that does not result in correction of the problem, to fill out and submit a comment card at the end of the examination whereon the candidate outlines the nature of the problem experienced. In this case, Petitioner did not fill in the comment card because she did not think it applied to her situation. She was of the opinion the card was to be filled out only when equipment did not work or the examination, for some other reason that could be corrected, was not appropriate. Here, the equipment worked as it should and the test was appropriate. In addition, the examiners also did what they were supposed to do. Gregory M. Smith served as a patient for Dr. DeFrank at the same examination taken by the Petitioner. During the course of Dr. DeFrank's testing, she performed the BIO examination on him just as Petitioner attempted to do with her patient. However, Dr. DeFrank, also a short woman, was allowed to have Mr. Smith sit up for her performance of the procedure and as a result, was able to accomplish it properly. Mr. Smith had been examined by the examiners prior to Dr. DeFrank's performance of the procedure, and one of the examiners performed the BIO procedure on him while he was in a reclined positions. However, before Dr. DeFrank entered the examination room with the other examiner, Smith was returned to the upright position and Dr. DeFrank did her procedure with him in that position. Dr. James J. Murtagh, an ophthalmologist and Chief of the Ophthalmology service at the MacDill hospital, and Petitioner's supervisor, has observed her in the performance of her duties for a period of two years. He is satisfied she is fully competent to do the procedure in question and, in fact, does it on a daily basis. In his expert opinion, there is no requirement that the BIO be accomplished with the patient in a reclined position. In fact, he feels it is best that the procedure be accomplished with the patient in a position most comfortable and convenient to both the patient and the doctor. The position of the patient, reclined or erect, has no bearing on the doctor's ability to do the procedure properly from an optometric or ophthalmological standpoint. The purpose of the BIO procedure is to examine the back side of the retina. It is necessary to extend the view out to the sides and, admittedly, this can best be done with the patient reclined. He is satisfied, however, that the major portion of the back of the eye, that portion to be observed through this procedure, can be seen easily in either the reclined or the upright position. Dr. Den Beste, Respondent's expert, is of the opinion that because of the nature of the area sought to be examined, it is best that the patient be reclined so that the doctor can, without discomfort, easily move to examine all portions of the retina from the top to the bottom and from side to side. Which procedure is better, however, is of little consequence here since the issue is not which procedure is better but whether the procedure legitimately can be accomplished in an upright position. In this regard, Dr. Murtagh's opinion that it can be is not necessarily inconsistent with Dr. Den Beste's opinion that it is better done in a reclining position. In its answers to Petitioner's Request For Admissions, the Respondent admitted that the BIO procedure can be accomplished on a patient seated in an upright position. The statute does not require that the supine position be utilized for an examination but the Board requires it in its examination because: (1) it is felt the supine position is better for examination purposes, and (2) it is easier for the examiners to observe the candidate's performance of the procedure. On the other hand, a representative of the manufacturer of the instrument utilized by the optometrist in performing the BIO procedure indicated that the instrument is best used in an upright position. Nonetheless, Dr. Den Beste disagrees with this when the instrument is to be used in a qualification examination situation. Under the physical conditions confronted by the Petitioner at the examination site, however, Dr. Murtagh is convinced it would be impossible for her to have accomplished the procedure with the patient reclined. Both Dr. Den Beste and Dr. Loewe, the Department's examination specialist, indicate that when Petitioner experienced her difficulty, she should have immediately pointed out her problem and called for help. They contend that Petitioner failed to do this. The evidence clearly shows, however, that after attempting the procedure, Petitioner, on at least three occasions, advised her examiners she was unable to accomplish the procedure because of the height and distance constraints, and was advised to do the best she could. The purpose of the comment card is to afford the examiners the opportunity to look into a problem situation, take corrective action on the spot if appropriate and possible, and to take future corrective action to prevent a recurrence of the problem at some later time. If the problem complained of is merely related to candidate technique, the examiners can do nothing about it. In the instant case, however, both Den Beste and Loewe feel the Petitioner should have filled out the form when she experienced the difficulty now reported and had she done so, something might have been done at that time. Both Den Beste and Loewe, however, indicate that to the best of their knowledge, the issue of the distance, as experienced by Petitioner here, has never been raised by any examinee in the past. At the hearing, Dr. Den Beste, while denying any prior knowledge of Petitioner's inability to perform the procedure because of her short stature, indicated that if someone did claim the procedure could not be accomplished because he or she was too short, there were some options open which included (1) lowering the chair, (2) adjusting the headset, or (3) pulling the patient's head into a different position so that the procedure could be accomplished. To now state that adjustments to the chair would have been acceptable provides no benefit to Petitioner here who, the evidence does not controvert, was told at the examination she was not allowed to adjust the chair at any time. According to Dr. Loewe, the test as it is configured is not designed to trick candidates. Tests are designed with the hope of fairly testing the skills of all candidates. If it appears there is a problem area, then test officials try to correct it or warn of it in the study guide. Dr. Loewe's inquiry into the examination conditions subsequent to Petitioner's examination revealed that there were several candidates who asked if it were necessary to do the BIO procedure with the patient in a supine position. She also admitted that filling out a comment card is not a prerequisite to filing a formal challenge to the grading or scoring. Dr. Loewe further indicated that if a legitimate reason existed to allow a candidate to perform the BIO procedure on a patient seated in an upright position because of some physical handicap, such as the candidate being confined to a wheel chair, they would make arrangements to accommodate the candidate. There appears to be little difference to be shown, from a practical standpoint, between someone who cannot examine a patient in a supine position because of their confinement to a wheel chair and one who cannot perform the examination appropriately because of his or her physical shortness and the resultant inability to get in a proper position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner be retested on the BIO procedure only, without payment of additional fee, either at a special examination held for that purpose or at the next regularly schedule optometry examination administered by Respondent Board of Optometry. RECOMMENDED this 23rd day of October, 1989 in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1912 The following constitutes my specific rulings pursuant to S 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: 1. - 4. Accepted and incorporated herein. 5. - 7. Accepted and incorporated herein. 8. - 12. Accepted and incorporated herein. 13. - 18. Accepted and incorporated herein. 19. - 21. Accepted and incorporated herein. 22. - 29. Accepted and incorporated herein. 30. & 31. Accepted and incorporated herein. 32. & 33. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 40. Accepted and incorporated herein. 41. - 46. Accepted and incorporated herein. Accepted. - 51. Accepted and incorporated herein. Accepted and incorporated herein. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. - 62. Accepted. 63. & 64. Accepted and incorporated herein. 65. - 67. Accepted. 68. - 70. Accepted and incorporated herein. For the Respondent: 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a statement of the Petitioner's position. & 5. Accepted and incorporated herein. 6. & 7. Not Findings of Fact but a restatement of Petitioner's testimony. Accurate. Accepted and incorporated herein. Accepted as an accurate summary of the evidence on that point. Accepted that the problem could have been corrected. Accepted. COPIES FURNISHED: Richard M. Hanchett, Esquire Trenham, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, Florida 33601 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patricia Guilford Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Petitioner sat for the July 1985 acupuncture exam. The examination consisted of two written parts, which the Petitioner passed. The practical portion of the examination (Part III) consisted of two sections. Section I consisted of a written clinical competency examination and Section II was a clinical practical examination, both of which are based on traditional oriental theories of acupuncture. Each section was graded based upon a scale of 100. The Petitioner also passed the written portion of the practical examination and the only portion of the examination at issue is the clinical practical examination, and specifically that portion concerning location of acupuncture points on models employed for purposes of administering the examination. The Petitioner additionally successfully passed the needling technique and sanitation portions of the examination, including evaluation in such areas as proper sanitation and sterilization, the accuracy of point locations, the insertion of the needle in proper direction of flow, the proper depth of insertion, proper needle manipulation, and proper needle removal. In addition to the needling technique portion of the examination, which the Petitioner passed, he was required to locate acupuncture points on a model provided by the Department. He was required to demonstrate basic knowledge of acupuncture points and meridian location. The point location portion of the clinical practical examination at issue, consisted of locating 18 acupuncture points on the models provided. The candidates were required to locate each point on the designated models in the anatomical position in which the models were presented. The candidates were allowed to palpate the models or press them with the fingers to aid in locating the points. Once the candidate located the point accurately, he was to place an adhesive dot on that point. The candidates were given a sheet listing the points that should be located and given 25 minutes to do so, then they were required to leave the examination room. Two examiners then evaluated the accuracy of their point location. The examination candidates were not allowed to use point finding devices or tape measures to aid in locating the points. In order to pass the practical examination, including the section at issue involving acupuncture point location, the candidate was required to get a score of at least 70 on a scale of 100. The Petitioner scored a 56 out of a possible 100 on this portion of the examination. Six of his point locations were shown on the graders' score sheets, in evidence as Respondent's Exhibit 3, as "just touching" the circle of the acupuncture point "area of tolerance" determined by Respondent's examiners to delineate the correct area on the model of the acupuncture point involved. Those points are described as follows: REN 12 ZHONGWAN SP. 3 TAIBAI U.B.64 JINGGU S.J.4 YANGCHI S.I.5 YANGGU K.6 ZHAOHAI The two graders involved were inconsistent in grading some point locations. Thus Grader "A" (depicted on Respondent's Exhibit 3) found that no dot had been placed at point "P.5 JIANSHI" at question number 257 on the examination, while Examiner "B" found that a dot had been placed at that point but graded it as being incorrect because he described it as being "1/2 inch off the point and too high." The graders also varied as to their description of the margin of error on those points which they counted as being described incorrectly by the Petitioner. On several occasions, as to those point locations graded as incorrect, the graders varied as much as 1/4 inch from each other in describing the distance the point was placed away from the acceptable tolerance circle. In one instance, at question number 266, point number "S.J.14 JIANLIAO," Grader "A" found the Petitioner's dot to be two inches off the point and too high, while Grader "B" found the Petitioner's dot to be placed only 1/4 inch too high, a significant discrepancy between the two graders. Question number 263 is another such instance. This is one of the six points mentioned above involving the dot just touching the margin of the tolerance circle. Grader "A" found that 1/3 of the dot was inside the circle and Grader "B" found that the dot was just touching the tolerance circle surrounding that point. In fact, as to all but one of the indicated distances on the grading sheets in Respondent's Exhibit 3, where the graders describe the distance in fractions of an inch that the Petitioner's point location dot varied away from the tolerance circles delineating acceptable point location, the examiners' distances described in their comments were at least 1/8 inch and generally at least 1/4 inch different from each other. This is obviously because the examiners used no measuring device in determining the distance Petitioner's "answer dot" was from the acupuncture point or the tolerance circle surrounding it. No measuring device was used to determine how much of a given answer dot extended inside of acceptable tolerance circle. In this connection, Witness Hall established that there was a "50 percent rule," that is, a requirement by the Department that the examination graders count an answer as correct only if 50 percent or more of the answer dot was inside the tolerance circle. This requirement is not published as a rule and was not related to the candidates before they took the examination. Given the showing by the expert testimony adduced by the Petitioner of the imprecision in point location permissible in the field of acupuncture, because of the variables described below, and because the imprecision can be "allowed for" by needle angle and manipulation, etc., the failure to inform the candidates of the "50 percent dot within the circle" requirement was likely a significant factor causing the candidates, including the Petitioner, to locate their points with less precision. Generally accepted acupuncture practice does not require such absolute precision on all point locations. The Respondent presented the testimony of witnesses Phillip Puddy and Harvey Kaltsas. These gentlemen have taken the Florida examination and are licensed in Florida. Witness Puddy, in fact, was at the same examination as the Petitioner and corroborated his testimony that none of the candidates were informed that their dots had to be 50 percent within the defined area of tolerance. Both witnesses acknowledged various texts on acupuncture practice and theory, introduced by the Petitioner, as being authoritative and which show that the relative imprecision of location of acupuncture points is in accord with the teachings of Chinese medicine, which is the basis for the art of acupuncture. The "proportional measurement method" is designed to measure gross distances on the body and to determine the approximate locations of points only. Then the acupuncturist feels for a slight hollow with his fingers which more precisely locates the point before employing the use of acupuncture needles. An important part of point location is the patient's sensitivity, which the acupuncturist observes and uses in aiding him in determining the precise point location. In any event, proportional measurement alone does not necessarily accurately locate an acupuncture point, but merely provides a gross measurement and location. The points used on the models in the examination were depicted on the models in invisible ink by the examination graders (illustrated by "black light" in the grading process). They were located by proportional measurement only. Thus, Witness Puddy established that the method of measurement used to locate the acupuncture points on the examination models is not characterized by any significant level of precision in itself, for purposes of judging the relative imprecision of a candidate's answer dot locations. Further, Witness Puddy established that there is a margin of error of 1/4 inch to one inch, depending upon which acupuncture point is involved and that if a candidate touched those areas within such a margin of error that would show a basic, competent knowledge of acupuncture. Both the Petitioner's witnesses acknowledged that various factors can alter acupuncture point locations, such as the position of the patient; the true location of a point as being beneath the skin of a patient, such that the skin can move in relation to the point location so that the point's depiction on the skin surface is an imprecise indicator, as well as the fact that the anatomical point locations simply vary because not all patients are anatomically the same. It was established by both witnesses that an imprecision in point location by practicing acupuncturists is permissible since a point's location is judged not merely by physical measurement, but by palpation and concomitant observance of the patient's reaction and sensitivity. In this connection, when the needles are used, the insertion of the needle can vary as to its location because such factors as needle angle and means of manipulation can overcome a relative lack of precision in locating the precise acupuncture point before needle insertion. Both witnesses agreed that the use of proportional measurement does not precisely define an acupuncture point, but rather serves to locate the general tolerance area which point must then be precisely located by the use of the acupuncturist's touch, combined with observing the patient's sensitivity to touch at that point. Thus, the location of acupuncture points as done in the examination preparation is in itself a relatively imprecise means of locating the points. In short, these witnesses established that acupuncturists differ as to what is an appropriate margin for error in locating an acupuncture point and established that there is no absolute standard for location of acupuncture points such as the "50 percent-of-the-dot" unwritten requirement in the grading of this examination. Both witnesses opined that if a candidate placed his answering dot in such a way as to contact the defined area of acupuncture point tolerance, then he has exhibited a basic understanding and competency as to acupuncture point location. These opinions were not rebutted and are accepted. Acupuncture point location is appropriately accomplished by taking into consideration the various variables involved and discussed above, many of which are subjective and peculiar to the individual patient. As shown by Respondent's only witness, Ella Hall, the preparers of the examination encircled each purported acupuncture point with an invisible ink circle delineating the tolerance area which varied anywhere from 5/16 to 15/16 of an inch and then enforced the Board's internal, unpublished requirement that the answer dot of the candidate had to be at least 50 percent within that varying tolerance circle. The graders, in turn, then used no measuring device to determine whether 50 percent of a dot was within the circle or not, nor in determining the size of the dot nor the size of the circle itself. These witnesses thus established that there was a significant level of imprecision in the point location portion of the examination's preparation and format. Witness Puddy's testimony, as well as the authoritative text, in evidence as Petitioner's Exhibit 2, (at page 124) establishes that the purpose of proportional measurement is to determine approximate locations of points over gross distances on the body rather than to establish a single, absolute standard for making fine measurements. It was thus demonstrated by the Petitioner that the application of the requirement of the dot being 50 percent within the requested tolerance circle, located by proportional measurement, is contrary to generally accepted theory and principles of acupuncture as described by the two expert witnesses presented by the Petitioner, as well as the text material in evidence. The location of further points by this means is contrary to the generally accepted purpose of proportional measurement in the practice of acupuncture. In summary, it has been demonstrated that the Petitioner's location of the above-mentioned six acupuncture points, which both examiners agreed touched the tolerance areas of the requested points, but for which they accorded no credit to the Petitioner, in reality are adequate demonstrations of accurate point locations. Petitioner's expert witnesses, and corroborating authoritative texts establish such point location as demonstrating a sufficiently clear and concise understanding of the prevailing principles and theories of acupuncture as to meet the purpose and intent of the examination as described in the authority discussed below.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Acupuncture according the Petitioner a passing grade of 72 upon the subject acupuncture examination. DONE and ORDERED this 17th day of February, 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1314 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted. Accepted. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Accepted, but subordinate to Findings of Fact by the Hearing Officer on this subject matter. Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial. Rejected as subordinate to the Hearing Officer's Findings of Fact and as immaterial. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. COPIES FURNISHED: Gary I. Jones 3714 Zephyr Street Houston, Texas 77021 H. Reynolds Sampson, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Marcelle Flanagan Executive Director Board of Acupuncture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The PROVIDER received the FAR that gave notice of PROVIDER'S right to an administrative hearing regarding the fine. The PROVIDER filed a petition requesting an administrative hearing, and the administrative hearing case was CLOSED. PROVIDER chose not to dispute the facts set forth in the Final Agency Audit Report dated June 12, 2006. The facts alleged in the FAR are hereby deemed admitted. The Agency hereby adopts the facts as set forth in the FAR, including the fine amount of $2,000.00, the requirement to complete a corrective action plan in the form of provider education, and repayment of the $72,202.51 overpayment and payment of a $2,000.00 fine. The Petitioner entered into a payment Plan Agreement with the Agency on August 13, 2007.
Conclusions THIS CAUSE came before me for issuance of a Final Order on a Final Audit Report ("FAR") dated June 12, 2006 (C.I. No. 06-4078-000). By the Final Audit Report, the Agency for Health Care Administration ("ARCA" or "Agency"), informed the Petitioner, The Pediatric Center, Inc., (hereinafter "PROVIDER"), that the Agency was seeking to recover overpayments in the amount of $72,202.51, a fine. sanction of $2,000.00 pursuant to Sections 409.913(15), (16), and (17), Florida Statutes, and Rule 590-9.070, Florida Administrative Code and a Corrective Action Plan in the form of provider education. The Final Audit Report provided full disclosure and notice to the PROVIDER of procedures for requesting an administrative hearing to contest the sanction. The PROVIDER filed a petition with the Agency requesting a formal administrative hearing on or about June 12, 2006. The Agency forwarded PROVIDER'S hearing request to the Division of Administrative Hearings ("DOAH") for a formal administrative hearing. DOAH closed its file and relinquished jurisdiction to ARCA on October 2, 2006. Page 1 of5 Filed January 11, 2010 4:24 PM Division of Administrative Hearings.
Findings Of Fact Petitioner applied to take the acupuncture examination given October 30 - November 3, 1984, but his application was not approved until he provided additional verification of his experience. By the time his approval was granted it was too late for the 1984 examination and he was advised to apply for the July 1955 examination which he did. In 1984 Petitioner was sent Applicant Information for Acupuncture Examination document (Exhibit 5) which indicates copies of Florida Statutes Chapters 389 and 457 and the rules applicable to each chapter are attached. Petitioner acknowledges receiving certain information but does not recall exactly what he received. When Petitioner re-applied to take the 1955 examination he received certain material from Respondent containing the statutes and rules from which the examination questions on Laws and Rules would be taken. Petitioner contends he received only the information contained in Exhibit 3 which consists of Chapter 457 Florida Statutes (1983) and Chapter 21AA Florida Administrative Code. After taking the examination and finding unfamiliar questions in Part I of the examination, Petitioner discovered the documents from which he studied did not have applicable provisions of Chapter 389 and rules pertaining thereto in Chapter 10D-81 Florida Administrative Code. When he subsequently learned he had failed Part I of the examination Petitioner, on October 10, 1985, went to Tallahassee to check on his examination grade and to complain that he did not receive the two pages containing Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code. Chapter 389 Florida Statutes and Chapter 10D-81 Florida Administrative Code, which Wang did not study for the examination, consist of two pages with both sides of each page containing information and are pages 643 and 644, Florida Statutes (1981) and pages 525 and 526 Florida Administrative Code. On Part I of the examination Wang missed three of five questions taken from page 643, three out of eight questions from page 644, five out of eight questions from page 525 and four out of ten questions from page 526. Part I consisted of fifty questions and of those fifty questions Wang missed fifteen from the statutes and rules he did not study for the examination. Clearly his failure to study those pages was the primary cause of Wang receiving a failing grade of 66 on Part I of the examination. Ann Mayne is Administrative Assistant to The Board of Acupuncture and two other boards. She is the only one who mails out material to applicants and in her absence requests for such material are held pending her return. In October 1985 when Petitioner went to Tallahassee Ms. Mayne was on vacation. Petitioner first went to the Department of Professional Regulation and was referred to the acupuncture office in an adjacent building. There he contacted a clerk who attempted to help him and gave him the two pages (Exhibit 4) he alleged he did not have. Ms. Mayne sends out all information to applicants for acupuncture license. She prepared the Application Information Sheet (Exhibit 5) and the copies of statutes and rules pertaining to acupuncture. Ms. Mayne keeps this information in a file cabinet with the pages separated so all of the same page are together. When she prepares an information package she goes through the file drawer and takes out one sheet from each of the divisions and thereby compiles a complete package. These sheets are not stapled together but are put in an envelope and mailed to the applicants. In 1985 Wang was not sent a copy of the information sheet (Exhibit 5) but Ms. Mayne put a note in his file that he had been sent the 1985 packet of laws and rules. Because there had been a change in Chapter 457 between the 1984 and 1985 examination she wanted to be sure a copy of these new provisions was sent to Wang. The copy Wang acknowledges he received (Exhibit 3) contains Chapter 457 Florida Statutes and Chapter 21AA Florida Administrative Code. If, as contended by Wang, the packet he received for the 1985 examination did not contain relevant portions of Chapter 359 Florida Statutes and Chapter 10D-81, Florida Administrative Code, the packet he received in 1984 did contain those sections and there was no change in those laws and rules between the 1984 and 1985 examinations.
The Issue Whether Respondent, a medical doctor, in his treatment of Patient M.A., failed to keep legible medical records in violation of section 458.331(1)(m), Florida Statutes (2007); prescribed or administered inappropriate or excessive quantities of controlled substances in violation of section 458.331(1)(q), Florida Statutes (2007); committed medical malpractice by practicing below the standard of care in violation of section 458.331(1)(t), Florida Statutes (2007); failed to perform a statutory or legal obligation placed upon a licensed physician in violation of section 458.331(1)(g), Florida Statutes (2007); and violated any provision of chapter 458 or chapter 456, or any rules adopted pursuant thereto in violation of section 458.331(1)(nn), Florida Statutes (2007), as Petitioner alleges in the Third Amended Administrative Complaint; if so, whether (and what) disciplinary measures should be imposed.
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 Paul M. Goldberg, M.D., violated sections 458.331(1)(g) and (nn), Florida Statutes, as charged in Counts IV and V of the Complaint; Dismissing Counts I-III of the Complaint; Imposing $20,000 in administrative fines; issuing a reprimand against Dr. Goldberg's medical license; requiring Dr. Goldberg to complete the "Laws and Rules" Course; suspending Dr. Goldberg's medical license until such time as Dr. Goldberg undergoes a "UF CARES" evaluation; and placing Dr. Goldberg's license on probation for three years under indirect supervision with 100 percent chart review of cosmetic surgery patients and 25 percent chart review of all other patients. DONE AND ENTERED this 4th day of March, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 4th day of March, 2015.
Findings Of Fact The Department of Professional Regulation is authorized by law to administer the acupuncture examination. The Petitioner, Michael Dechang Zeng, requested an administrative hearing to consider whether he should have received a passing grade on the August 1982 acupuncture examination. This formal hearing was noticed on April 21, 1983, and copies provided the Petitioner and Respondent by mail in accordance with the provisions of the applicable statutes and rules. The records does not reflect that the notice provided to the Petitioner was returned, as is the procedure of the Division of Administrative Hearings, and the record does not reflect that the Petitioner requested any continuation of the proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the grade received by the Petitioner on the August 1982 acupuncture examination be confirmed and approved. DONE AND ORDERED this 3rd day of August 1983 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August 1983. COPIES FURNISHED: Mr. Michael Dechang Zeng 1017 East Broad Street Tampa, Florida 33604 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Conclusions ARCA C.I. No.: 05-3603-000 THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. Filed October 14, 2009 2:31 PM Division of Administrative Hearings. DONE AND ORDERED on this the ' day of Odo b-L,-' , 2009, in Tallahassee, Florida. Holly Benson, Secretary / Agency for Health Care Administration AP ARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies Furnished to: Scott Wicke EmCare 1717 Main Street Suite 5200 Dallas, TX 75201 Karen Dexter, Assistant General Counsel Agency for Health Care Administration (Interoffice) Peter Williams, Inspector General Agency for Health Care Administration (Interoffice) D. Kenneth Yon, Bureau Chief Medicaid Program Integrity (Interoffice) Finance & Accounting (Interoffice) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served to the above named addresses by mail or interoffice mail this ay of (2:/4 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. 3, Mail Stop #3 Tallahassee, Florida 32308-5403 (850) 922-5873
