The Issue The issues are as follows: (a) whether a proposed amendment to Florida Administrative Code Rule 64B14-3.001(12) constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.52(8)(b) and/or 120.52(8)(c), Florida Statutes (2005); and (b) whether Petitioners are entitled to attorneys' fees pursuant to Section 120.595(2), Florida Statutes (2005).
Findings Of Fact This matter arises from Respondent's proposed amendment (the proposed rule) to Florida Administrative Code Rule 64B14- 3.001(12), which defines the term "direct supervision" for purposes of Part XIV, Chapter 468, Florida Statutes (the O&P practice act.) Respondent advertised the text of the proposed rule in Volume 31, Number 35, September 2, 2005, of the Florida Administrative Weekly. The proposed rule states as follows in relevant part: (12) Direct Supervision means: supervision while the qualified supervisor is on the premises. The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient's orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner's licensure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the device; For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair. * * * Specific Authority 468.802, F.S. Law Implemented 468.802, 468.803, 468.807, 468.808, 468.809, F.S. History--New 10-21- 99, Amended 2-19-04, 5-5-04. Respondent conducted a final public hearing regarding the proposed rule on November 18, 2005. Petitioners filed a petition challenging the proposed rule within 10 days after the final public hearing. Petitioners would be substantially affected by the proposed rule. The parties stipulate to the citation of official notices and other matters published in Florida Administrative Weekly.
Findings Of Fact The following facts were stipulated by the parties and required no proof at hearing: Petitioner, University Hospital, Ltd., is a Florida limited partnership and is the licensee of University Hospital and University Pavilion Hospital, both located on North University Drive, Tamarac, Florida. Petitioner Sebastian Hospital, Inc., is a Florida corporation, and is the licensee of Sebastian Hospital and SandyPines Hospital. Both hospitals are located on separate premises. Petitioner Haines City HMA, Inc., is a Florida corporation, and is the licensee of Heart of Florida Hospital, Inc. and Palmview Hospital. Both hospitals are located on separate premises. Petitioners timely filed their respective Petitions to determine the invalidity of the proposed rules at issue. Petitioners would be regulated by the proposed rules and are substantially affected parties with standing to challenge the proposed rules at issue. No proof is necessary to prove the standing of these Petitioners. Prior Rule 59C-1.004(2)(i) (the "License Consolidation Rule") required CON application and approval for license consolidations pursuant to Section 395.003, F.S. It was declared invalid in University Hospital, Ltd., et al. v. AHCA, 16 F.A.L.R. 3312 (final order dated July 22, 1994). [This decision is referenced throughout as University Hospital.] Prior to invalidation of the License Consolidation Rule, six CON applicants sought issuance of a single, or consolidated, license to replace former separate licenses held by the same licensee for facilities located on separate premises. Each of these six prior applicants involved a general acute care hospital and a specialty psychiatric hospital. Those applicants resulted in an issuance of CON numbers 7303, 6954, 7712, 7311, 7167, and 7047. Each of those six applications was ulti- mately approved in the form of a single license. When the single licenses were issued, no restrictions were placed on the licensees regarding eligibility for Medicaid reimbursement. As reflected in the respective SAARS, a significant result of approval of each of these applications was that the formerly separately licensed psychiatric hospital became eligible for Medicaid reimbursement for treatment of Medicaid patients. All of these prior applicants had licenses issued and became eligible for Medicaid. Such Medicaid reimbursement was not available to the separately licensed psychiatric facilities prior to issuance of a single, or consolidated, license. Aside from the rules under challenge, there has been no change in pertinent state statutes or rules subsequent to the final order in University Hospital Ltd., v. AHCA 16 F.A.L.R. 3312. After invalidation of the Consolidated License Rule, AHCA's interpretation is that issuance of a single, or consolidated, license for a general acute care hospital and a psychiatric hospital does not result in Medicaid eligibility. Petitioners did not participate in any of the rule workshops conducted on June 22, July 7, and November 2, 1994 or the public hearing held on February 13, 1995. Petitioners did not send in any written comments, questions, or materials, or request an economic impact statement. A holding of the Final Order in University Hospital, was that a Certificate of Need was not required prior to the issuance of a single consol- idated license for multiple premises. University Hospital, 16 F.A.L.R. at 3321. The Agency has no discretion regarding rule- making pursuant to Section 120.535. (Joint Prehearing Stipulation, filed 3/14/95) Approximately eighteen months ago and well before the University Hospital decision, the Agency for Health Care Administration (AHCA) commenced a major rewrite of the hospital license rules that had been promulgated by its predecessor agency, the Department of Health and Rehabilitative Services (HRS). After a series of public workshops, the revisions were noticed in the January 20, 1995, Florida Administrative Weekly. These substantial revisions of rule chapter 59A-3 comprise about fifty pages of the Florida Administrative Weekly. The challenged portions comprise only several paragraphs of the revisions. The challenged portions of the proposed rules are: 59A-3.203 Licensure Procedure. (2) All persons requesting licensure for the operation of a hospital under the provisions of Chapter 395, F.S., shall make application to the Agency, on forms provided, AHCA Form 3130- 8003-January 1995, and AHCA Form 3130-8001-January 1995, and shall receive a regular or provisional license prior to the acceptance of patients for care or treatment. * * * (e) An application for the addition of beds or off-site outpatient facilities to a hospital's license must include: A valid certificate of need or letter of exemption as required by ss. 488.041 - 408.045, F.S., and Approval from the Agency's Office of Plans and Construction. * * * (i) A single license will be issued to a licensee for facilities located on separate premises, upon request of the applicant. The license will specifically state the location of the facilities, their services, and the licensed beds available on each separate premises. Such a license shall also specifically identify the general or specialty classification of hospitals located on separate premises. (6) Each license shall specifically state the name of the licensed operator of the hospital, the class of hospital, and the name and location of the hospital. Any beds in the hospital which are regulated under the certificate of need program, as specified in Chapter 59C-1, F.A.C., shall be listed, including the number of licensed beds by type. The license for hospitals having facilities on more than one premises shall specifically state the location of each facility, their general or specialty classification, their services, and the licensed beds available on each separate premises. * * * Specific Authority 395.003, 395.004, 455.239, F.S. Law Implemented, 395.001, 395.003, 395.004, 395.1005, 408.035, 408.036, 455.239, F.S. History New. (emphasis added) Prior to the decision in the University Hospital case in July 1994, the proposed revisions did not include the requirement that the license for facilities on separate premises identify separately the general or specialty classification of each. That provision was added by the agency because it concluded that when it could no longer require a CON for "consolidated" licenses, then general acute care beds and free-standing psychiatric beds could not be "consolidated" on a single license. It is uncontroverted that the substantial effect of the requirement that each facility retain its prior classification is that a facility classified as a class III (specialty) facility is not eligible for Medicaid reimbursement. The agency agrees that proposed rule is based on, and is compelled by section 395.003(2)(d), F.S., which provides as follows: (d) The Agency shall, at the request of a licensee, issue a single license to a licensee for facilities located on separate premises. Such a license shall specifically state the location of the facilities, the services, and the licensed beds available on each separate premises. If a licensee requests a single license, the licensee shall designate which facility or office is responsible for receipt of information, payment of fees, service of process, and all other activities necessary for the Agency to carry out the provision of this part. (Emphasis supplied). It is immediately obvious from a comparison of the text of the proposed rule and the text of the law implemented that the law does not require that the license state the general or specialty classification for the separate facilities. This distinction was not lost on the agency since it included in its legislative package for the 1995 legislative session a proposed amendment to section 395.003(2)(d), F.S. that would cure the inconsistency by adding the proposed rule language to the statute. (Petitioner's exhibit number 16, p. 25) There is a statute which restricts Medicaid reimbursement for treatment in free-standing psychiatric hospitals. The agency argues that the proposed rules give effect to that statute, section 409.905(5), F.S., which provides, in pertinent part: . . . A licensed hospital maintained primarily for the care and treatment of patients having mental disorders or mental diseases is not eligible to participate in the hospital inpatient portion of the Medicaid program except as provided in federal law. . . . (emphasis supplied). Reliance on Section 409.905(5) is misplaced, however, because it is nowhere cited in the proposed rules as authority or law implemented. Moreover, evidence presented at hearing describes federal policy that when two hospitals are consolidated under one license and have a total capacity that is less than 50 percent psychiatric in nature, the premises are both eligible for Medicaid reimbursement, even though one remains primarily for the treatment of mental disorders. (Petitioners' exhibits number 20-22) The federal policy on Medicaid reimbursement was in effect in 1993, prior to the University Hospital decision and prior to the current version of the proposed rules. Section 409.905(5), F.S. has been in effect since 1991, before the six consolidated licenses referenced in paragraph 1, above, were issued. Section 395.003(2)(d), F.S. has been in effect in its current form at all times material. Nothing in the law has changed to support the agency's contention that, after the University Hospital decision, it can no longer issue a single license with a single license classification for separate premises. No evidence nor specific argument was presented with regard to the alleged invalidity of proposed rule 59A-3.203(2)(e), which on its face relates to the addition of beds or an outpatient facility to a hospital's license. Issues related to that portion of the proposed rule are not the issues invoked in this proceeding with regard to Petitioner's facilities. (See Petitioners' exhibit 26, p. 71, deposition of Tanya Williams)
The Issue Should the Board of Nursing (the Board) impose discipline on Respondent's nursing license for violating Section 464.018(1)(n), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts At all times material to this Complaint, Respondent was a registered nurse (R.N.) within the state of Florida, having been issued license number RN 2055672. Respondent's address of record is Rt. 22, Box 2347, Lake City, Florida 32024. On or about April 21, 2004, Respondent submitted to a pre-employment drug screen. The drug screen returned on or about April 24, 2004, indicating a positive test result for cannabinoids - tetrahydrocannabinol, the principal active component of Marijuana. Marijuana is a schedule I controlled substance pursuant to Section 893.03(1)(c)35., Florida Statutes. A substance in Schedule I has a high potential for abuse and has no currently accepted medical use in treatment in the United States and its use under medical supervision does not meet acceptable safety standards. Respondent did not have a lawful prescription or a legitimate medical reason for using Marijuana, or any other substance that might test positive for cannabinoids - tetrahydrocannabinol. Specimen Submission On April 21, 2004, when Respondent underwent a pre- employment drug screen, it was by providing a urine specimen. As the donor she signed a form with the following language: I certify that I provided my urine specimen to the collector: that I have not adulterated it in any manner: each specimen bottle used was sealed with a tamper evidence seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. It was specimen ID number 190920 to be submitted for drug testing at Doctors Laboratory, Inc. (Doctors Laboratory) in Valdosta, Georgia. The reason Respondent provided the urine specimen was in relation to a job application with Shands, Lake Shore, Live Oak and Starke (Shands) whose business address is in Gainesville, Florida. Respondent was tested for drugs in accordance with the Florida Drug Free Work Place Program that is part of the pre-employment process for the prospective employer. The urine specimen was tested for the presence of amphetamines, cannabinoids, cocaine, opiates, phencyclidine, barbiturates, benzodiazepines and methaqualone. Respondent's urine specimen was packaged and shipped to Doctors Laboratory in Valdosta, Georgia, where it was received on April 22, 2004, for testing. The test designed to detect cannabinoids is referred to as "9 CARBOXY-THC." The laboratory test performed on Respondent's urine specimen returned as positive for the presence of cannabinoids, outside what would be considered an acceptable range. On April 23, 2004, Doctors Laboratory released Respondent's test results to the Occupational Health Services Unit within Shands, which was received by that unit on the same date as evidenced by a stamp found on the laboratory test information copy. On April 26, 2004, nurse Denise Cannon signed a document that is headed "Shands Healthcare Occupational Health Services Positive/Abnormal Drug Screen." It pertains to Respondent. It mentions the prospective hiring of the Respondent to work at Lakeshore in the position of R.N./ICU. It notes of the positive drug screen for: 9 CARBOXY-THC-Marijuana. It notes that nurse Cannon notified Respondent of the results on April 26, 2004. Part of the notification was to verify Respondent's identity by social security and date of birth and to advise Respondent of Shands Drug Free Work Place Policy, as well as rights/responsibility under the Florida Drug Free Work Place Act of 1988. The form indicates that Respondent requested a consultation with the MRO, short for Medical Review Officer. It comments that the Respondent was not hired. The comment section states that Respondent "would like to contest the drug screen." On April 28, 2004, a MRO Verification Worksheet was completed in relation to the Respondent and specimen ID 190920, which shows that a positive result was received on April 27, 2004. On April 28, 2004, the worksheet was signed by Dr. Ku-Lang Chang M.D., M.R.O. According to the MRO Verification Worksheet, an attempt was made to call Respondent on April 27, 2004. On April 28, 2004, as the worksheet describes, a message was left "LM with husband." The Verification Worksheet goes on to describe that on April 28, 2004, an interview was conducted in which the "applicant decided not to pursue this." This is understood to refer to Respondent as the applicant. In the April 28, 2004, conversation Respondent was informed of the test results. The MRO Verification Worksheet has a notation that "reported to IPN 5/3/04" IPN is read to refer to the intervention project for nurses. In conclusion, the MRO Verification Worksheet made a verification decision: positive for 9 CARBOXY-THC. On April 28, 2004, Dr. Ku-Lang Chang notified N. Denise Cannon, R.N., Occupational Health Unit within Shands, of the positive drug screen. On May 10, 2004, nurse Cannon executed a form provided by the Department reporting on Respondent's positive drug screen. On June 10, 2004, nurse Cannon wrote Ms. Julie Weeks, of the Department, outlining the drug screen process, notification of the results on April 26, 2004, and the advice to Respondent to contact IPN. The June 10, 2004, correspondence refers to Respondent's request that the results of the drug screen be turned over to Dr. Ku-Lang Chang, Medical Review Officer (MRO). The June 10, 2004, correspondence from nurse Cannon to Ms. Weeks speaks of the intervention project, the IPN, Intake Case Manager Pat Falke and Respondent's failure to follow through with the recommendations of IPN. As a consequence, Nurse Cannon corresponded with the Department to undertake an investigation. On May 28, 2004, Pat Falke, had written nurse Cannon indicating that efforts at gaining Respondent's participation with IPN had not succeeded and reminding nurse Cannon to proceed with the execution of the uniform complaint on the Department's form. Laboratory Analysis Doctors Laboratory where Respondent's urine specimen was analyzed is a clinical reference laboratory that serves Florida, among other states. Its affiliation with Florida is in relation to the Florida Drug Free Work Place Program in providing forensic urine drug testing for employment screening. Richard Earl Struempler, B.S., M.T., (ASCP), MS, MA, NRCC is the Director of Operations and the Director of Toxicology for Doctors Laboratory. As such, he is responsible for the day-to- day operations of the forensic urine drug testing laboratory pertaining to procedures and protocols, in the interest of making certain that the procedures followed in the laboratory comply with rules, regulations, and certification standards for the Florida Drug Free Work Place Program employment drug testing, among other affiliations. By stipulation, Mr. Struempler was accepted as an expert in toxicology and drug testing for purposes of his testimony. On April 22, 2004, Doctors Laboratory received Respondent's urine specimen for drug testing. Tests were performed to detect the class of drugs that have been described. Within that grouping was Marijuana which is also known as THC. THC stands for tetrahydrocannabinol, with delta nine tetrahydrocannabinol being the main psychoactive ingredient found in Marijuana. The test conducted on the urine specimen was designed to look for the metabolite of this substance in the carboxylic acid form. Respondent's urine specimen was collected in Gainesville and taken by carrier to Doctors Laboratory in Valdosta, Georgia. When it arrived by carrier, it was placed in the accessioning area within the laboratory for immediate transfer to the drug testing area within the laboratory. The accessioning area is a secured facility within the laboratory with limited access, access only to the individual(s) who would need to work with the specimen. Shipping containers are opened in the accessioning area and the individual specimens are removed with an interest in discovering any damage or tampering that may have occurred during shipment. The sample is assigned an accessioning number and is marked as being received in the drug testing laboratory accessioning area. Nothing about Respondent's sample indicated that there were signs of tampering or damage. It was specifically indicated that the primary seal bottle for the urine specimen was intact upon arrival. The accessioning number for Respondent's drug specimen was 07163062. That number was utilized in tracking the urine specimen through activities associated with the urine specimen while in the laboratory. Two tests were employed to analyze Respondent's urine specimen in Doctors Laboratory. The first test, referred to as an initial test, was the immunoassay test designed to identify categories of drugs, to include cannabinoids. It is an antibody antigen reaction test to reveal a color associated with a given drug. At this stage the laboratory also does specimen validity testing, looking for the presence of any indicators that might show that the specimen was tampered with. These steps in the process were utilized in analyzing Respondent's urine specimen. The initial test was by use of an aliquot of the urine specimen. The immunoassay test is accepted in the scientific community and is contemplated as a protocol related to the Florida Drug Free Workplace Program. Respondent's results show the presence of cannabinoids at the cut-off level of 15 nanograms per milliliter or greater. Being within that range, it was considered to be a positive test. Recognizing the positive results, the laboratory staff tested the urine specimen further through what is referred to as confirmation testing. When the confirmation test was performed, a fresh aliquot was obtained from the urine specimen bottle. The confirmation test is designed to extract from the urine, delta 9 tetrahydrocannabinol or delta 9 THC carboxylic acid. The extracted material is concentrated in a small vial and derivatized or converted into a form that allows it to be analyzed by an instrument known as a gas chromatograph/mass spectrometer, also referred to as GC/MS. This step in the process is designed to separate THC from other things found in the urine specimen, breaking it down into molecular components. The components are measured as to size, weight, and amount. The GC/MS test is considered within the scientific community to be accurate and reliable. The results of the test on Respondent's urine specimen revealed the presence of delta 9 THC carboxylic acid at 57.5 nanograms per milliliter, a significant amount confirming the presence of the drug. The immunoassay and GC/MS test equipment was properly calibrated before performing the test on Respondent's urine specimen. The tests were properly performed. The chain of custody from the collection point through the testing regimen was not breached and is well documented. The chain of custody was maintained in accordance with standards required at Doctors Laboratory. Respondent's urine specimen that remained following the laboratory test was retained for at least a year, the period required for retention. During that time, no request was made to make the specimen available for independent testing outside the laboratory. As an expert, Dr. Struempler offered his professional opinion that Respondent's urine specimen was collected and submitted to the Doctors Laboratory in accordance with standard operating procedures, that the test and handling of the specimen was in accordance with standard operating procedures, and that the results of the tests reported on April 23, 2004, as being positive for the presence of cannabinoids, THC, was a true and accurate reflection of the nature of the substance found. No administrative or technical errors in the handling and testing occurred. Dr. Struempler expressed the opinion that the Respondent, donor, would have had to have consumed Marijuana or a Marijuana THC containing product one to four days prior to submission of the specimen or as long as 10 days prior to the submission under extreme circumstances. Dr. Struempler's expert opinion is accepted.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 464.018(1)(n), Florida Statutes (2003), for failing to meet the minimal standards of acceptable and prevailing nursing practices through a violation of Florida Administrative Code Rule 64B9-8.005(2)(k) and that Respondent be fined $250, subject to IPN evaluation and placed on a period of probation for one year, in accordance with the disciplinary guidelines provision set forth in Florida Administrative Code Rule 64B9-8.006(2)(vv). DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 2nd day of March, 2007. COPIES FURNISHED: William F. Miller, Esquire Ellen Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Duncan Alden Jones, Esquire 330 Southwest Fourth Avenue High Springs, Florida 32643 Rick Garcia, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Tom Koch, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: (b)1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization .. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr. Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for temporary certification as a physician assistant. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993. COPIES FURNISHED: John H. Duhig, Esquire 702 National Bank Building 25 West Flagler Street Miami, Florida 33130-1770 Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The parties stipulated to the following facts: That at all times material to these proceedings, Respondent, Luis A. Doural was licensed as Clinical Laboratory Technologist, License No. JC 0008567, in the specialty areas of Serology, Hematology and Immunohematology. which are 2, 4 and 5, respectively. That Respondent, Luis A. Doural altered his Clinical Laboratory Technologist License by adding the specialty areas of Microbiology and Clinical chemistry which are 1 and 3, respectively. This alteration resulted in Respondent's license showing specialty areas of Microbiology, Serology, Clinical Chemistry, Hematology and Immunohematology which are 1, 2, 3, 4 and 5, respectively. That Respondent, Luis A. Dural altered his Clinical Laboratory Technologist license in order to obtain a job as a Clinical Laboratory Technologist at Miami General Hospital. That the alteration was discovered in a routine check of Miami General Hospital by Petitioner and not as a result of a malfeasance or misfeasance on the part of Respondent. The following facts were determined at the hearing: That Respondent had failed to pass the test in Microbiology and Clinical Chemistry. That Respondent had performed some procedures in Clinical Chemistry under supervision but in his Petition For Administrative Hearings he alleged that he was not called upon to perform any procedure in the unlicensed areas. That Respondent tried to cover-up the misrepresentation of his license when confronted by the hospital. The following testimony of Respondent went unrebutted: That he was under extreme pressure and financial hardship due to medical care needed by his daughter and that these circumstances caused his poor judgment in his intentional misrepresentation of his license. That he had lost his job with the Miami General Hospital. That if his license was revoked he would lose his present job where he is now working in the area of specialties in which he is licensed.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating Section 4S3.21(2)(7) and 483.23(2), Florida Statutes (1983). For such violations, considering the mitigating circumstances surrounding the violations, it is RECOMMENDED that the Petitioner enter a final order suspending Respondent's Clinical Laboratory Technologist License for a period of two (2) years and assess the Respondent with an Administrative Fine of $500.00, stay the suspension and place the Respondent on probation for a period of two (2) years, with conditions necessary to carry out the probation provided Respondent pays the $500.00 Administrative Fine within ninety (90) days. The Respondent's failure to pay the fine within the time specified will result in his license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Petitioner for reinstatement of his license. Appearance before the Petitioner for reinstatement will not be required provided the fine is paid timely and the conditions of probation are not violated in any respect. Respectfully submitted and entered this 28th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1986. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Department 1350 NW 14th Street Miami, Florida 33125 Verne L. Freeland, Esquire., P. O. Box 693652 Miami, Florida 332169 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301
The Issue The issues are those promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent, Charles McArthur. In particular, it is alleged that the Respondent practiced pharmacy in the state of Florida with an expired license, in violation of Subsection 465.015(2)(b), Florida Statutes (1981).
Findings Of Fact Respondent, Charles McArthur, is a pharmacist licensed by the State of Florida. His license number is 0012091. On June 20, 1983, Respondent attempted to renew his pharmacy license issued by the state of Florida on a bi-annual basis. He attempted this renewal by appearing in person before officials with the State of Florida, Board of Pharmacy, entitled to grant renewal. That renewal was denied based upon the fact that the Respondent was unable to provide verification of the requisite continuing education credits necessary for relicensure. As a consequence, on June 21, 1983 Respondent's active pharmacy license expired, leaving the Respondent with an inactive pharmacy license. For the period June 21, 1983 through July 20, 1983 Respondent practiced pharmacy with an inactive license. During that time frame, Thomas Hannah, an investigator with the State of Florida, Department of Professional Regulation, visited the Respondent in the pharmacy in which Respondent was practicing in Tallahassee, Florida. He observed the Respondent practice pharmacy and noted the presence of the expired active Florida pharmacy license. On that occasion, Hannah told the Respondent that he was operating without a current license. On the following day, July 20, 1953, Respondent paid the appropriate fees and made proof of the requisite continuing education credits and his active pharmacy license was re-issued. Subsequent to that date Respondent has held an active pharmacy license issued by the State of Florida. In view of the Respondent's practice of pharmacy with an inactive license from the period of June 21, 1983 through July 20, 1983, Respondent was charged with the present offense and requested, and was granted, a formal Subsection 120.57(1), Florida Statutes, hearing. In dealing with other recalcitrant licensees who have not renewed their licenses in the time allotted, the Board of Pharmacy, prior to February, 1980 sent a list to Board inspectors within one or two weeks following the due date of renewal and those inspectors contacted the licensees to ascertain whether the licensees had renewed their pharmacy licenses. If they found that the individual pharmacist did not renew his license that person was given an opportunity to fill out an application, to pay the fee, and to present his continuing education credits to the investigator. Persons who were not entitled to renew due to problems with the continuing education credits were told that they were delinquent, and practicing with a delinquent license was a violation of law. Those persons were given the opportunity to take leave of absence from their active pharmacy practice. Around February, 1980 due to the re- organization of the State of Florida, Department of Professional Regulation, insufficient work force was available to carry out this process of checking on the topic of the delinquent license renewals, and this sequence of inactivity continued until approximately December, 1981. During this period actions were not brought against pharmacists for failure to timely renew a license to practice pharmacy, within the meaning of Section 465.015(2)(b), Florida Statutes, provided they renewed licenses within one year of the appropriate renewal date. In December, 1981 the practice changed and the pharmacists would be prosecuted for failure to timely renew a license to practice pharmacy and continuing to practice with an expired license. This change in policy position which occurred in December, 1981 was not shown in the course of the hearing to be a matter noticed for the benefit of the practicing pharmacists in the State of Florida.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. The Agency’s Administrative Complaint is UPHELD and the above-named Respondent’s license has been SURRENDERED. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent facility is closed and will remain closed. Respondent surrendered its original health care clinic license to the Agency together with the executed settlement agreement, and the license is deemed cancelled and void effective May 15, 2014. The Respondent admits the allegations of facts contained in the Administrative Complaint and has waived its right to have an administrative proceeding. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 5. The Respondent is given notice of Florida law regarding unlicensed activity. The 1 Filed November 19, 2014 3:17 PM Division of Administrative Hearings Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 6. The Respondent shall pay the Agency an administrative fine of $5,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of this Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 7. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are hereby dismissed, and the above-styled case is hereby closed. ORDERED at Tallahassee, Florida, on thisee2f day of Ochlboe , 2014. Elizabeth Didek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc ry of this Ping, Order was served on the below-named persons by the method designated on this ay of Eee , 2014. spa j Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Esquire Facilities Intake Unit Health Care Clinic Unit Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance & Accounting Arlene Mayo-Davis, Field Office Manager Revenue Management Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) Electronic Mail Katrina Derico-Harris Warren J. Bird, Assistant General Counsel Medicaid Accounts Receivable ; Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) | (Electronic Mail) Shawn McCauley Juan Pablo Broche, Esquire Medicaid Contract Management Quintero Broche, P.A. Agency for Health Care Administration 75 Valencia Avenue, Suite 800 (Electronic Mail) Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
