Findings Of Fact The application of Petitioner, John David Young, M.D., for licensure by endorsement initially was filed on March 13, 1991. The initial application was not completed within one year and, under F.A.C. Rule 61F6-22.016, was not acted upon by the Board of Medicine. The Petitioner reapplied on September 1, 1992, and his application was denied by Respondent's Order rendered on November 4, 1993. The basis of denial stated in the November 4, 1993, Order is: You failed to show a medical education as that term is used in Chapter 458 in Sections 458.313(1)(a) and 458.311(1)(f) and have failed to show medical practice as required by Section 458.313(1)(c). Additionally, you have misrepresented your education. Sections 458.313(1)(a) and (7); 458.311(1)(c) and (d); 458.331(1)(a) and (gg), F.S. Medical Education Dr. Young received his Doctorate of Medicine Degree from Grace University School of Medicine, St. Kitts, Nevis, West Indies, June 4, 1986. Grace University is registered with the World Health Organization. Dr. Young began his medical education on May 5, 1981, at the Universidad de Mundial, Dominican Republic, where he completed one year as reflected by the transcripts found at Joint Exhibit 1, page 195. Dr. Young transferred to CETEC, Dominican Republic, because of his concerns that Universidad de Mundial would close within a few years. The transfer to CETEC occurred in late December, 1981. CETEC allowed Dr. Young to take pathology and physiology at the University of Southern California on the condition that CETEC would administer exams on those subjects before they would give him credit. The University of Southern California did not give credit for the courses, which was not a concern to Dr. Young because he was seeking credit from CETEC upon taking the CETEC examination. CETEC attempted to establish a liaison with Orange State University School of Medicine in Southern California whereby students could take courses at Orange State and receive credit by CETEC. Dr. Young completed his basic science course work at Orange State as reflected by the transcript at Joint Exhibit 1, page 193, for which CETEC gave him credit. Melvin A. Shiffman, M.D., was temporary dean at Orange State University and submitted a letter to the Board of Medicine confirming Dr. Young's attendance from May through August, 1982, and that Dr. Young took the CETEC final examinations on all the subjects taught at Orange State for which they gave credit. Dr. Young began his clinical rotations upon completion of his basic sciences as follows: Basic Medicine at Pine Ridge Indian Health Hospital, Pine Ridge, South Dakota, from August 31, 1982 to September 30, 1982; surgery at Oral Roberts University School of Medicine from October 4, 1982 to December 22, 1982; surgery at Fitkin Hospital, Swaziliand, South Africa, in 1983; basic medicine at Pine Ridge Indian Hospital, Pine Ridge, South Dakota, from April 18, 1983 to May 29, 1983. While at Pine Ridge Indian Hospital the second time, Dr. Young was asked to leave by the acting hospital administrator, on the allegation that he was attending CETEC, which was not an approved school, which in fact it was. In shock at being asked to leave based on those allegations, Dr. Young travelled to Kansas City to stay with relatives to study for the Educational Commission for Foreign Medical Graduates (ECFMG) examination required for all foreign medical graduates. The Petitioner took and passed the ECFMG examination on July 27, 1983. Upon completion of the examination, Dr. Young continued his clinical rotations as follows: Psychiatry at Bay Front Medical Center, University of South Florida, St. Petersburg, Florida; medicine at University of Natal, Republic of South Africa, from September 26, 1983 to January 1, 1984; obstetrics/gynecology at Addington Hospital, University of Natal, Republic of South Africa, from January 3, 1984 to March 4, 1984; pediatrics from March 12 to May 13, 1984 at Addington Hospital; University of Natal; and surgery from May 13, 1984 to July 16, 1984 at Addington Hospital, University of Natal. In late May or early June, 1984, while Dr. Young was in the surgery rotation, he learned, upon calling home and speaking to his mother, that CETEC closed as of March 4, 1984. Dr. Young was shocked at learning of the closing, but decided to complete the surgery rotation, since he was working with a well known professor, and to return to the U.S. after that to try to find another medical school. Dr. Young registered at the University of Health Science in Antigua in September, 1984. The University of Health Science required Dr. Young to take their exams for credit of his basic sciences course work, which he took in December, 1984. Because the transcripts from CETEC were not available, Dr. Young produced to the University of Health Sciences cancelled checks showing payment for his tuition, which was accepted. The University of Health Sciences, therefore, required Dr. Young to pass their examinations for the basic science courses in lieu of the CETEC transcript. Dr. Young found the exams to be suspicious in that they seemed to be random photocopies of medical text book pages. Accordingly, Dr. Young went to the U.S. Embassy at Antigua to discuss the medical school and was advised to change schools because of problems they were having with the school. Dr. Young learned later that 30 former students filed suit in federal court against the school for the irregularities. Upon completion of the examinations, Dr. Young continued his rotations. He did a rotation in cardiology at Bay Pines Veterans Hospital, St. Petersburg, Florida from December 18, 1984 to January 31, 1985. He did a rotation in internal medicine at Metropolitan General Hospital, Pinellas Park, Florida from February 1, 1985 to April 30, 1985. He did a rotation in pediatrics with Dr. DeGall at All Childrens Office in St. Petersburg, Florida from May 1 to July 29, 1985. Dr. Young then enrolled in Grace University Medical School, St. Kitts, Nevis, West Indies, in December, 1985. Grace University gave Dr. Young credit for course work done for previous medical schools approved by the World Health Organization, but told him that he would be required to take validation exams for that course work and would probably need to take some additional clerkships. This was explained to the Board of Medicine by the Vice President and CEO of Grace University, J.P. McNaughton-Louden, M.D., by letter dated February 20, 1991, found at Joint Exhibit 1, page 103. In that letter, Dr. Louden also confirms that CETEC was approved by the World Health Organization, that CETEC closed while Dr. Young was taking rotations in South Africa, that students at University of Health Sciences in Antigua were advised by the U.S. Consul authorities to transfer because of problems, that Dr. Young would be given credit for studies done at medical schools approved by the World Health Organizations co-validated by examinations at Grace University, and that Dr. Young's clerkships had been accepted and that he graduated on June 4, 1986. The transcripts of Grace University found at Joint Exhibit 1, page 104, shows that Dr. Young was admitted in March, 1984, even though his actual enrollment was December, 1985, because the school dated the admission retroactively to the date that CETEC closed. Dr. Young listed what he considered to be his accurate date of enrollment on his application for licensure as December 21, 1985. Dr. Young did the following additional rotations for Grace University: pediatrics with Dr. DeGall in St. Petersburg, from December 29, 1985 to February 26, 1985; and general medicine and emergency medicine at a refugee camp under the auspices of the United States and Christian Missionary Life from March 3 to April 30, 1985. FLEX Exam Dr. Young took and passed the Federation of State Medical Boards' Licensing Examination (known as "FLEX") on the first attempt in December, 1988. Residency 21 Dr. Young completed one year of residency in internal medicine at Marshall University on January 31, 1989. Maurice A. Mufson, M.D., Dr. Young's professor and Chairman of the Department of Internal Medicine, submitted an evaluation of the residency to the Board of Medicine recommending him as qualified and competent. After completion of the one year residency in internal medicine, Dr. Young realized that in order to fulfill his desire to practice missionary medicine, he would need a broader education. Accordingly, he changed his residency to family practice. Marshall University gave Dr. Young seven months credit from his one year of internal medicine residency towards his family practice residency which was completed in June, 1991. Robert B. Walker, M.D., Dr. Young's professor and Chairman of the Department of Family and Community Health, submitted to the Board of Medicine and evaluation of Dr. Young's family practice residency recommending him as qualified and competent. The AMA physician profile on Dr. Young, submitted to the Board of Medicine by the AMA, shows that Dr. Young completed the family practice residency and one year of internal medicine residency. However, the AMA profile mistakenly shows Dr. Young's internal medicine residency as from 2/87 to 1/88, instead of the accurate dates of 2/88 to 1/89. Dr. Young brought this error to the attention of the AMA which did not correct it. Letters recommending Dr. Young for licensure were sent to the Board of Medicine by: Stephen Petrany, M.D., Dr. Young's former Director of the Family Medicine Residency at Marshall University; and Jack Ditty, M.D., a Board certified dermatologist in Kentucky who was adjunct professor at University of Kentucky and Marshall University (who writes that Dr. Young is of high moral character and has knowledge and experience which would be necessary to practice medicine in Florida.) Post-Residency After completion of his residency in 1991, Dr. Young became licensed to practice medicine in West Virginia. Since his licensure, there have been no complaints or probable cause determinations made against his license, and no malpractice claims have been filed against him. Since completion of his residency, he has served as Assistant Professor of Clinical Medicine at the University of West Virginia and as Adjunct Professor of Medicine at Marshall University School of Medicine. He also has worked as a ship's doctor for a cruise line, worked as Assistant Professor of Medicine at University of West Virginia, moonlighted as an emergency room doctor in Beckley, West Virginia, lectured extensively in the Republic of South Africa on sexually transmitted diseases, and has worked as an emergency room doctor for the U.S. Military in Arizona. ECFMG Certification The Educational Commission for Foreign Medical Graduates (ECFMG) verifies the medical education of each person to whom it awards a certificate following passage of its examination. The ECFMG's investigation of Dr. Young's medical education took several years, because of allegations involving a Mr. Pedro de Mesones falsifying information from some medical schools in the Dominican Republic, including CETEC, on behalf of some applicants to various state medical boards. Dr. Young never met nor spoke with Pedro de Mesones nor was he involved with him in any way. The ECFMG advised Dr. Young of this investigation by letter dated June 7, 1984, found at Joint Exhibit 1, page 167. Further complicating the ECFMG investigation of Dr. Young's medical education was the closing of CETEC. The Dominican Republic government established an agency known as CONES to assist in getting transcripts of students who attended CETEC. Dr. Young wrote to CONES in an attempt to obtain his CETEC transcript from CONES. Even though Dr. Young was unable to obtain transcripts of CETEC from CONES, ECFMG verified all of Dr. Young's medical education, clinical rotations, and residency. The ECFMG investigation of Dr. Young's medical education concluded with no irregularities in his credentials having been found. The ECFMG issued its certificate to Dr. Young on October 13, 1987; it is valid indefinitely. Specialty Board Certification Dr. Young is certified as a diplomate of the American Board of Family Practice for the period of 1992 - 1999. The certificate from the American Board of Family Practice indicates: that Dr. Young met the requirements to be certified as a Diplomate of the Board; that he has completed a 3-year residency; and that the American Board verified Dr. Young's medical education and found it to be authentic. Board of Medicine Investigation As part of the routine investigation of Dr. Young's application for licensure filed with the Board of Medicine, the Board staff wrote to CONES requesting confirmation of the CETEC education and received a response dated March 6, 1992, by letter found at Joint Exhibit 1, page 87, stating that Dr. Young was not found on their lists and that they could not process the Board's request until they had Dr. Young's student registration number. However, an earlier certification by CONES dated May 12, 1987, found at Joint Exhibit 1, pages 9 and 10, shows that CONES did have Dr. Young's student identification number and had a file on him. Paul L. Allyn, M.D. also confirmed to the Board of Medicine by letter dated June 30, 1993, found at Joint Exhibit 1, page 88, that Dr. Young did attend CETEC. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on the March 6, 1992, letter rather than the May 12, 1987, letter. The Board staff contacted the University of Health Sciences to confirm Dr. Young's attendance and received a letter from its President dated October 21, 1991, found at Joint Exhibit 1, page 99. That letter states that Dr. Young did not receive credit for his previous medical education, that he attended the institution from September 19, 1984 to July 11, 1985, that he did not leave the institution in good standing, and that he was dismissed because he was unable to provide the school with official transcripts from the previous medical school he attended. Dr. Young had not seen that letter until a few months before hearing while reviewing the Board's file on him in preparation for the hearing. Dr. Young takes issue with the statements in the letter because the school did give him credit for the rotations he completed while enrolled at Universidad de Mundial and because he never had been told that he left the institution in poor standing. Dr. Young left the University upon advice of the U.S. Consulate in Antigua. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on this letter rather than Dr. Young's affidavits submitted with his application which contradict the letter. The Board obtained and reviewed the ECFMG file on Dr. Young in considering his application. In the ECFMG file at Joint Exhibit 1, page 230, is a letter to the ECFMG from John Casken, Quality Assurance Coordinator, Department of Health, Education, and Welfare, dated May 15, 1985, relating to Dr. Young's second clinical rotation at Pine Ridge Indian Health Hospital in 1983. In the letter, Mr. Casken states: that a closer look at Dr. Young's credentials after he presented himself for the second time showed that he had basically no medical education; that Dr. Young was asked to leave; and that, had they known in 1982 when he appeared for his first rotation what they knew in 1983, they would not have taken on Dr. Young as a m edical student. Dr. Young first saw that letter a few months before the hearing while preparing for trial. Dr. Young disagrees with that letter in that the schools he was attending, Universidad de Mundial, and after that, CETEC, were both approved by the World Health Organization. Further, a letter written on April 18, 1985, by Leonard L. Finger, Hospital Administrative Officer, Department of Health, Education, and Welfare, to the ECFMG, found at Joint Exhibit 1, page 231 , verifies Dr. Young's rotation without adverse comment. Further, the ECFMG found no problem with Dr. Young's education or with the rotations at Pine Ridge. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on Dr. Caskin's letter rather than Mr. Finger's letter and the fact that all of Dr. Young's medical schools were approved by the World Health Organization. Board of Medicine Practice and Policy The Board of Medicine has licensed individuals who have attended CETEC. The Board of Medicine and its staff rely upon the ECFMG certifications of applicants as verification of their education. The certification by the American Board of Family Practice complies with the requirement of Rule 61F6-22.004(2) and 61F6-22.018(3)(d). The ECFMG certificate complies with the requirements of Section 458.311(1)(f), (2), and (3), Florida Statutes; There is nothing in the rules of the Board or Chapter 458, and no Board policy or practice, which prohibits an applicant from going to more than one university or medical school, from going to more than one medical school and failing out of one, or from going to a school that later goes out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Medicine, enter a final order granting the Petitioner's application for licensure by endorsement. RECOMMENDED this 30th day of September, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7146 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-15. Accepted and incorporated. 16. The pediatrics rotation at Addington Hospital, University of Natal was from March 12 to May 13, 1984, and the surgery rotation was from May 13, 1984 to July 16, 1984. Otherwise, accepted and incorporated. 17.-30. Accepted and incorporated. 31.-37. Accepted but subordinate and unnecessary. 38. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. First sentence, rejected as being contrary to the greater weight of the evidence. Second sentence, accepted but subordinate and unnecessary. 7.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lack of a credible Orange State transcript to support the Petitioner's testimony is more a reflection on Orange State's credibility than on the Petitioner's. Orange State was in existence for a short period of time, never was recognized by the State of California, and has been defunct for about ten years. It is understandable why the Petitioner has had difficulty getting a credible response from Orange State. The irregularities in the response from Orange State do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, it is even more understandable why the Petitioner has had difficulty getting a credible response from CETEC. As with Orange State, CETEC was closed about ten years ago. In the case of CETEC, which was in the Dominican Republic, the closing was under allegations of misconduct and fraud. Records were unavailable for a period of time while the government of the Dominican Republic investigated. Later, records were destroyed. As with Orange State, the irregularities in the response from CETEC do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Rejected as contrary to the greater weight of the evidence that the Respondent did not leave UHSA in good standing. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence. First sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. 20.-21. Accepted and incorporated to the extent not subordinate or unnecessary. The city in South Africa was Durban, not Durham. CETEC was the affiliate until it closed in March, 1994. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted. The rest is rejected as being contrary to the greater weight of the evidence. 24.-25. Accepted and incorporated. 25. Accepted but unnecessary. (No such finding was made.) COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs Administrative Law Section PL-01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent is now, and has been at all times material hereto, a licensed practical nurse in the State of Florida holding license number PN 0626161. At all times material hereto, Dr. Vladimir Rosenthal owned three clinics in Dade and Broward Counties at which he performed abortions. The clinics were located in Coral Gables (hereinafter referred to as the "Coral Gables clinic"), North Miami (hereinafter referred to as the "North Miami clinic") and Plantation (hereinafter referred to as the "Broward clinic"). All three clinics were licensed under Chapter 390, Florida Statutes. In September and October, 1989, Respondent was employed by Rosenthal and worked full-time as a licensed practical nurse in the North Miami clinic. During this period of time, she had no responsibilities with regard to the other two clinics owned by Rosenthal. Among Respondent's duties at the North Miami clinic during this time period was to prepare, under Rosenthal's direct supervision, packages of medications that Rosenthal gave to his patients, free of charge, to take home with them upon their discharge, a practice that Rosenthal has since discontinued. 6/ On September 30, 1989, the Department of Health and Rehabilitative Services (HRS) conducted an on-site inspection at the Coral Gables clinic. Respondent was not present at the clinic during the inspection. Nor were there any patients at the clinic at the time. Approximately 50 small manilla envelopes containing multiple doses of medications were found in a drawer of a desk in the clinic. The envelopes were labeled to the extent that they indicated the name of the drugs they contained, but they did not provide any information regarding the lot number, expiration date or the name of the manufacturer of the drugs. Carmen Penaloza, one of the clinic workers who was present during the inspection, was asked to demonstrate how these packages were prepared. Penaloza proceeded to take an empty manilla envelope like the ones that had been found in the desk drawer and fill it with medication that came from a large container. In performing this demonstration, she did not use gloves and her bare hands came in contact with the medication. Carlos Arias, a licensed pharmacist and one of the HRS employees who participated in the inspection, advised Penaloza that the technique she had employed was unsanitary and recommended that in the future she use a tray and spatula like pharmacists do to perform such a task. The HRS inspection also revealed that medical devices were being stored in a refrigerator that also contained food items. On October 26, 1989, HRS conducted an on-site inspection of the North Miami clinic. Arias was among the various HRS employees who were on the inspection team. Diane Robie, a medical quality assurance investigator with the Department, accompanied the team members on their inspection. Approximately 30 envelopes containing medications were found during the inspection. They were similar to the packages that had been discovered the month before at the Coral Gables clinic. Respondent was at the clinic when the inspection was conducted. Penaloza was also there. No patients were present, however. Respondent was asked to demonstrate how the packages were prepared. Penaloza was nearby at the time the request was made. She saw Respondent nervously looking around and concluded that Respondent was unable to locate any sterile gloves to use. She therefore told Respondent where such gloves could be found. Respondent then donned the gloves, laid a clean piece of paper on top of the desk where she was situated, placed tablets from a large container onto the paper and pushed each tablet with a tongue blade into a small manilla envelope. 7/ The technique that Respondent used during her demonstration, while it may have been unconventional from the perspective of a pharmacist like Arias, nonetheless was antiseptic and therefore acceptable. Sometime during the inspection Respondent made a statement that led Robie to erroneously believe that Respondent was responsible for packaging medications, not just at the North Miami clinic, but at the Coral Gables clinic as well. A finding of probable cause was initially made in this case on May 14, 1990. An Administrative Complaint was thereafter issued and the matter was referred to the Division of Administrative Hearings. The Department received the following letter, dated September 4, 1990, from counsel for Respondent concerning settlement of the case: This will confirm our understanding that you will file a notice of dismissal with DOAH of the case now pending against my client and, providing the dismissal is confirmed as a final dismissal and closing order entered by the probable cause panel, that Ms. Echlov will agree not to seek fees against your agency under the Florida Equal Access to Justice Act. In the event the panel does not approve a final dismissal and instructs you to refile the case, neither party will be prejudiced by the present agreement and each party will retain all rights otherwise available to them, including my client's rights to seek fees should the case be refiled. If this does not reflect our understanding, please notify me at once. Otherwise, please fax me a copy of your notice of dismissal so that I can take the final hearing off my calendar. Thank you for your efforts to resolve this matter amicably. Counsel for Respondent sent to the Department, and the Department received, the following follow-up letter, dated November 6, 1990: You may recall that we reached an agreement in the above-referenced case providing for a voluntary dismissal on your part and promise on mine that my client would not seek attorney's fees under the Equal Access to Justice Act. You had to take the case back before the Probable Cause Panel and ask them to close it. In order that I can close my file and know that this matter is, in fact, concluded, please let me know whether you have taken the case back before the Probable Cause Panel and, if so, the outcome. If there are documents reflecting same, please, please send me a copy. If the case has not been taken back before the Panel, please let me know when this will be done. Thanks. I'll be looking forward to hearing from you. Counsel for Respondent sent to the Department, and the Department received, a third letter, dated January 14, 1991, the body of which read, as follows: It has now been over four months since we reached our "understanding" that DPR would dismiss the case pending before DOAH (which you did) and that my client would forego her right to seek fees under the EAJA, providing (to quote from my September 4, 1990 letter to you) "that the dismissal is confirmed as a final dismissal and a closing order [is] entered by the probable cause panel." The final part of the bargain has never been performed so far as I know (and, if it was performed, the action was illegal since I requested notification of the date when the matter would be presented to the panel so that I might attend or send a court reporter but never received any). I have not, of course, received any final order of dismissal from the probable cause panel. If, within ten days of the date of this letter, I have not received either: an order of closure from the probable cause panel, or the time, date and place when our agreement will be presented to the panel, I will consider that DPR is in breach of the agreement and pursue all remedies available to my client, including attorneys' fees. I look forward to hearing from you at your earliest convenience. The probable cause panel met a second time, at which it determined not to reconsider its initial finding of probable cause. 8/ Neither Respondent nor her attorney were notified of this second meeting of the probable cause panel. Following this meeting, an Amended Administrative Complaint was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order (1) finding the evidence insufficient to establish that Respondent engaged in "unprofessional conduct," within the meaning of Section 464.018(1)(h), Florida Statutes, as charged in the Second Amended Administrative Complaint, and (2) dismissing said complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of January, 1992. STUART M. LERNER 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 10th day of January, 1992.
The Issue The issues for determination in this case are: 1) whether Respondent, the Agency for Health Care Administration has made a nonrule policy statement which constitutes a “rule” as defined in Section 120.52(15), Florida Statutes, which in substance states that a hospital, licensed as a general hospital as defined in Section 395.002(10), Florida Statutes, may use the term “children’s hospital” and otherwise hold itself out and advertise as a “children’s hospital” without obtaining a license as a specialty hospital for children as defined in Section 395.002(27), Florida Statutes, and Rule 59A-3.02, Florida Administrative Code; 2) whether such agency policy statement, if made, constitutes a “rule” as defined in Section 120.52(15), Florida Statutes; 3) whether such agency policy statement, if made, has been adopted by rule as provided for in Section 120.54, Florida Statutes; and, 4) whether such agency policy statement, if made, constitutes an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes.
Findings Of Fact Petitioner, ALL CHILDREN’S HOSPITAL, INC. (ALL CHILDREN’S), is a licensed Class II Children’s Specialty Hospital located in St. Petersburg, Florida. ALL CHILDREN’S is licensed for 168 beds, including 108 acute care beds, 36 Level II neonatal intensive care (NICU) beds, and 24 Level III NICU beds. Historically, since its founding in 1926, ALL CHILDREN’S has been primarily committed to providing medical services to children, although ALL CHILDREN’S does provide limited services to adult patients, including a shared open heart surgery program with Bayside Medical Center. Petitioner, VARIETY CHILDREN’S HOSPITAL, INC., d/b/a MIAMI CHILDREN’S HOSPITAL (VARIETY), is a licensed Class II children’s specialty hospital located in Miami, Florida. VARIETY is licensed for 268 beds, with 218 acute care beds, 20 psychiatric beds, 7 Level II NICU beds, and 23 Level III NICU beds. Respondent, FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida vested with the statutory authority for administering the provisions of Chapter 395, Florida Statutes, relating to hospital licensure and regulation. Intervenor, ST. JOSEPH’S HOSPITAL INC. (ST. JOSEPH’S), is licensed as a Class I general acute care hospital located in Tampa, Florida. ST. JOSEPH’S is licensed for 883 beds, with 799 acute care beds, 42 adult inpatient psychiatric beds, 15 Level II NICU beds, and 27 Level III NICU beds. ST. JOSEPH’S operates a pediatric unit within the hospital which is designated as Tampa Children’s Hospital at ST. JOSEPH’S. ST. JOSEPH’S uses this designation in its publications and advertisements. Intervenors, FLORIDA STATUTORY TEACHING HOSPITAL COUNCIL and SHANDS AT THE UNIVERSITY OF FLORIDA (SHANDS), intervened jointly; however, the primary party substantially affected by the issues raised in this case is SHANDS. SHANDS is a statutory teaching hospital located in Gainesville, Florida. SHANDS is licensed as a Class I general acute care hospital and has 568 beds including 484 acute care beds, 24 adult inpatient psychiatric beds, 18 child inpatient psychiatric beds, 30 Level II NICU beds, and 20 Level III NICU beds. SHANDS provides children’s health care services in a distinct pediatric unit within the hospital. SHANDS uses the term “children’s hospital” in its publications and advertisements regarding the provision of the services in its pediatric unit. Intervenor, SOUTH BROWARD HOSPITAL DISTRICT d/b/a MEMORIAL REGIONAL HOSPITAL and JOE DIMAGGIO CHILDREN’S HOSPITAL (MEMORIAL), is licensed as a Class I general acute care hospital located in Ft. Lauderdale, Florida. MEMORIAL is licensed for 680 beds, including 515 acute care, 100 adult inpatient psychiatric beds, 36 comprehensive rehabilitation beds, 10 Level II NICU beds, and 19 Level III NICU beds. MEMORIAL operates the Joe DiMaggio Children’s Hospital (which MEMORIAL has registered as a fictitious name) as a distinct pediatric unit within MEMORIAL, and uses the term “children’s hospital” in its publications and advertisements. Intervenor, HOSPITAL BOARD OF DIRECTORS OF LEE COUNTY d/b/a LEE MEMORIAL HOSPITAL (LEE), is licensed as a Class I general acute care hospital located in Ft. Myers, Florida. LEE is licensed for 427 beds, including 367 acute care beds and 60 comprehensive medical rehabilitation beds. LEE also is licensed for its Health Park campus which contains 220 beds. Within the hospital LEE operates a distinct pediatric unit which has been designated the “Children’s Hospital of Southwest Florida” (registered as a fictitious name), and which designation LEE uses in its publications and advertisements. THE AGENCY STATEMENT As indicated above, the Petition filed in this case alleges that AHCA has made the following nonrule policy statement which constitutes a rule: The Agency for Health Care Administration takes the position that a hospital licensed as a general hospital, pursuant to Chapter 395, can designate itself as a “Children’s Hospital” and advertise such hospital status to the general public, without following the requirements of Rule 59A-3.202 and 59A- 3.201(65) and without obtaining a license as a Class II Specialty Hospital for Children. In this respect, Rule 59A-3.202(1), Florida Administrative Code, provides that AHCA will license four classes of hospital facilities. In pertinent part, the rule provides: 59A-3.202 Classification of Hospitals. The agency will license four classes of facilities: Class I or general hospitals which includes; General acute care hospitals with an average length of stay of 25 days or less for all beds; Long term care hospitals, which meet the provisions of 59A-3.201(31); and Rural hospitals designated under s. 395, Part III, F.S. Class II specialty hospitals offering the range of medical services offered by general hospitals, but restricted to a defined age or gender group of the population which includes; Specialty hospitals for children; and Specialty hospitals for women. Class III specialty hospitals offering a restricted range of services appropriate to the diagnosis, care, and treatment of patients with specific categories of medical or psychiatric illnesses or disorders which include; Specialty medical hospitals; Specialty rehabilitation hospitals; Specialty psychiatric hospitals, which may include beds licensed to offer Intensive Residential Treatment programs; Specialty substance abuse hospitals, which may include beds licensed to offer Intensive Residential Treatment programs; and Class IV specialty hospitals restricted to offering Intensive Residential Treatment Programs for Children and Adolescents, pursuant to s. 395.002(16), F.S. Regulation of advertisement by licensed hospitals is provided for in Section 395.003(1)(b)1., Florida Statutes, which states: (b)1. It is unlawful for any person to use or advertise to the public, in any way or by any medium whatsoever, any facility as a “hospital” or “ambulatory surgical center” unless such facility has first secured a license under the provisions of this part. For several years, and at least since 1990, concerns have been expressed to AHCA and its predecessor agency, the Florida Department of Health and Rehabilitative Services (HRS), regarding the use of the term “children’s hospital” by Class I general acute care hospitals. While not adopting a specific agency position on this issue, Sharon M. Gordon-Girven, the former HRS Director of Community Health Services & Facilities Regulation and Health Facilities, by letter dated June 1, 1990, expressed the following concerns regarding the legal permissibility of the portrayal of pediatric beds within a general hospital as a separate and distinct licensed facility: The portrayal of the pediatric beds as a separate and district licensed entity from the licensee, Baptist Medical Center, may not be legally permissible. I call this to your attention so that you can obtain a legal interpretation concerning the provision of Chapter 395.003(1)(b)1. Subsequently, by letter to ALL CHILDREN’S dated March 17, 1994, Gloria Crawford Henderson, then Director of the Division of Health Quality Assurance for AHCA, expressed continuing agency concerns: First, let me address the issue as it relates to unlicensed acute facilities. Let me assure you that it is this agency’s policy to vigorously enforce the prohibition in section 395.003(1)(a), Florida Statutes (F.S.), against the establishment or operation of any hospital without first obtaining a hospital license. This agency will respond to any allegation received of any unlicensed facility operating and advertising itself to the public as a children’s hospital. Second, if I am correctly interpreting your letter, your clients’ greater concern is about licensed general hospitals that advertise to the public that they are in whole or in part a children’s hospital, although they have not been licensed as a specialty hospital, as defined in section 395.002(27), F.S. I too, am concerned with public perception, as it relates to this matter. Specifically, a hospital license issued by this office represents an assurance to the public that a hospital meets certain standards of safe and quality care. Clearly, a specialty children’s license, or a general acute license that includes specialty children’s beds/services as approved by the certificate of need office, represents to the public that the hospital has fulfilled particular certificate of need and licensure regulatory requirements related to children’s services. The same assurances of specialized capability and quality of care cannot be made to the public in the absence of such a specialty license or specialty notation on a general license. I believe that the hospital licensure rule as written, Chapter 59A-3, F.A.C., does not adequately address this issue. The rule is presently being substantially revised and it is my intent to include this issue in the revision. It is my objective to clarify the circumstances under which a hospital may advertise children’s services, relative to the statutory licensure and certificate of need framework under which this office regulates hospital quality of care. We will keep you informed as to the status of our rulemaking efforts, and invite your input regarding proposed language. Again, I appreciate you bringing this matter to my attention, and trust that we will be able to achieve a resolution that is satisfactory to the industry as a whole while preserving the integrity of the licensure process and its assurances of public safety and quality of care. On January 20, 1995, AHCA published proposed Rule 59A- 3.202(2) which provided the following restrictions on advertising by licensed hospitals: (2) Licensed hospitals may not advertise to the public, by any medium whatsoever, that they are a specialty hospital, unless they have been licensed as a specialty hospital, as defined in s. 395.002(27), F.S. Proposed Rule 59A-3.202(2), as set forth above was thereafter challenged under Chapter 120, Florida Statutes. AHCA then withdrew the proposed rule on advertising restrictions, and on July 13, 1995, the proposed rule challenge case was closed by the Division of Administrative Hearings. By letter dated April 11, 1996, in response to an inquiry by SHANDS, Daryl Barowicz, Supervisor of Hospital and Outpatient Services for AHCA, made the following statements regarding the agency’s position: This is in response to your recent letter and your subsequent telephone conversation with Mr. Elmo Elrod regarding Shands Hospital proposal to establish a Children’s Hospital within a Hospital. You will recall from your conversation with Mr. Elrod, that last year they agency proposed Rule 59A-3.202(2), which in essence would have prohibited licensed hospitals from advertising to the public that they are a specialty hospital, unless they had been licensed as a specialty hospital, as defined in s. 395.002(27), Florida Statute. The rule was challenged and the agency subsequently withdrew the rule, with the plan to develop standards for children’s hospitals in the coming months. The first workshop for developing children’s hospital standards was held on January 12. These standards will apply to free-standing premises, as well as portions of hospitals. Any facility that does not meet the requirements once they are established, will no longer be allowed to advertise itself as a “Children’s Hospital.” Although the present rules would not prohibit Shands from doing what they are proposing to do, we believe that they should consider the potential ramifications of this new rule, once it is adopted. The evidence does not establish that Respondent AHCA has made the specific statement set forth in the allegations of the Petition filed in this case; however, at final hearing in this case, the agency representative, Tanya Williams, AHCA’s Bureau Chief for the Bureau of Health Facility Regulation, testified that it is AHCA’s current position that the provisions of Sections 395.002 and 395.003, Florida Statutes, do not vest the agency with the statutory authority to regulate advertising by licensed hospitals beyond the express limitations of Section 395.003(1)(b)1., Florida Statutes. Because the statute contains no express limitation regarding specialty designations in advertising by licensed hospitals, the agency has taken the position that a rule prohibiting the use of the term “children’s hospital” in advertising by Class I general hospitals is without legislative authority. Accordingly, the agency has in substance adopted the nonrule policy statement at issue in this case. Status of Agency Rulemaking Subsequent to the agency’s withdrawal of proposed Rule 59A-3.202(2) in 1995, the agency has continued development of rules regarding standards for children’s hospitals, and conducted workshops for the development of such rules. The rules currently under development by the agency do not provide for restrictions on advertisement by licensed hospitals. Operation and Advertisement of Children’s Hospitals As indicated above, AHCA is in the process of developing rules regarding standards for children’s hospitals in Florida. On a national level, the National Association of Children’s Hospitals and Related Institutions (NACHRI) has promulgated criteria for children’s hospitals. Membership in NACHRI is limited to those hospitals and institutions which meet NACHRI’s membership criteria. The membership criteria require a commitment to providing children’s medical services, and include specific medical staff training and teaching, organizational support for the pediatric program, appropriate resource allocation, and community involvement. Petitioners, ALL CHILDREN’S and VARIETY, are the only hospitals in Florida with full institutional membership in NACHRI. Intervenor SHANDS has associate membership in NACHRI. Several charitable organizations, including the Children’s Miracle Network raise funds for children’s medical needs. ALL CHILDREN’S currently holds the franchise for the Children’s Miracle Network in central Florida. Advertising for charitable contributions for children’s medical needs may enhance the contributions to a medical institution. AHCA has not received any complaints regarding deceptive or misleading advertisements regarding children’s hospitals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed in this matter is hereby DISMISSED. DONE and ENTERED this 7th day of April, 1997, in Tallahassee, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1997. COPIES FURNISHED: Gerald B. Sternstein, Esquire Frank P. Rainer, Esquire RUDEN, MCCLOSKY, SMITH, SCHUSTER and RUSSELL, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Richard P. Ellis, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300 R. Terry Rigsby, Esquire Wendy Delvecchio, Esquire Richard A. Lotspeich, Esquire BLANK, RIGSBY & MEENAN 204 South Monroe Street Tallahassee, Florida 32301 Mark K. Delegal, Esquire John C. Taylor, Jr., Esquire TAYLOR, DAY & RIO 311 South Calhoun Street, Suite 206 Tallahassee, Florida 32301 Glenn Burton, Esquire SHEAR, NEWMAN, HAHN & ROSENKRANZ 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33601-2378 Robert C. McCurdy, Esquire Hospital Board of County Commissioners Post Office Box 2218 Ft. Myers, Florida 33902-2218 Sam Power, Agency Clerk Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue At issue in this proceeding is whether petitioner's application for a medical license by endorsement should be approved.
Findings Of Fact The Findings of the Facts of tbe Recommended Order are adopted by the Board of Medicine as being based on competent substantial evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered certifying petitioner's application to the Department of Professional Regulation, for licensure by endorsement with, should the Board be persuaded that such is appropriate, placement of petitioner on probation for such term and subject to such conditions as the Board may reasonably specify. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of April 1991. WILLIAM J. KENDRICK 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 24th day of April 1991.
Conclusions Having reviewed the administrative complaint dated June 12, 2009, and Notice of Intent dated July 9, 2009, attached hereto and incorporated herein (Ex. 1 and 2), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 3) with the other party to these proceedings, and being otherwise well- advised in the premises, finds and concludes as follows: 1 Filed November 20, 2009 10:37 AM Division of Administrative Hearings. ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The administrative fine against the Respondent in AHCA Case No. 2009001632 is withdrawn. 3. The Respondent's abortion clinic license is cancelled. 4. The initial application seeking laboratory licensure in Case No. 2009007700 is withdrawn. 5. The Respondent's request for formal hearing is dismissed. 6. Each party shall bear its own costs and attorney’s fees. 7. The above-styled cases are hereby closed. DONE and ORDERED this _// day of hover Ake , 2009, in Tallahassee, Leon County, Florida. El . Arnold, Secretary Y t Health Care Administration Thomas Agenc 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. Copies furnished to: Jan Mills Facilities Intake Unit Agency for Health Care Admin. (Interoffice Mail) Thomas M. Hoeler, Esquire | Office of the General Counsel Agency for Health Care Admin. (Interoffice Mail) Laura MacLafferty, Unit Manager Hospital and Outpatient Services Unit Agency for Health Care Admin. (Interoffice Mail) Andrew T. Lavin, Esquire Navon & Lavin, P.A. Emerald Park Office Center 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 (U.S. Mail) Karen Rivera, Unit Manager ‘| Laboratory Unit Agency for Health Care Admin. (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the /8 day of AGI A , 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Certified Mail Receipt (7003 1010 0000 9715 3702) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, AHCA No.: 2009001632 vs. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Agency for Health Care Administration (hereinafter “AHCA”), by and through the undersigned counsel, and files this Administrative Complaint. against Community Healthcare Center of Pensacola, Inc. (hereinafter “Community Healthcare Center of Pensacola, Inc.”), pursuant to Section 120.569, and 120.57, Fla. Stat. (2008), alleges: NATURE OF THE ACTION 1. This is an action to impose one (1) administrative fine against Community Healthcare Center of Pensacola, Inc. in the amount of Four Hundred and Thirteen Thousand Dollars ($413.000), based upon one (1) deficiency, pursuant to Section 483.091, Fla. Stat. (2008). EXHIBIT 1. i \ JURISDICTION AND VENUE 2. This Agency has jurisdiction pursuant to 483, Part I and Section 120.569 and 120.57, Fla. Stat. (2008). 3. Venue lies in Escambia County, Pensacola, Florida, pursuant to Section 120.57 Fla. Stat. (2008); Rule 58A-5, Fla. Admin. Code (2008) and Section 28.106.207, Fla. Stat. (2008). PARTIES 4. AHCA, is the regulatory authority responsible for licensure and enforcement of all applicable statutes and rules governing clinical laboratory facilities pursuant to Chapter 483, -Part 1, Fla. Stat. (2008) and Rule 58A-5, Fla. Admin. Code (2008). 5. Community Healthcare Center of Pensacola, Inc. is a for-profit corporation, ABO Group + RH clinical laboratory facility is located at 6770 North Ninth Avenue, Pensacola, Florida 32504. Community Healthcare Center of Pensacola, Inc. is licensed as clinical laboratory facilities license # 800003116; certificate number #60474, effective November 21, 2005 through November 20, 2007. Community Healthcare Center of Pensacola, Inc. was at all times material hereto, licensed facility under the licensing authority of AHCA, and required to comply with all applicable rules, and statutes. COUNTI COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. BASED ON RECORD REVIEW, OBSERVATIONS AND INTERVIEW WITH THE FACILITY ADMINISTRATOR ON JANUARY 7, 2009, AT APPROXIMATELY 9:30 A.M., IT WAS DETERMINED THAT THE LABORATORY LICENSE AND HAD CONTINUED TO PERFORM LABORATORY TESTING. STATE TAG L001-CLINICAL LABORATORY LICENSE Section 483.091, Fla. Stat. (2007) CLINICAL LABORATORY LICENSE 6. AHCA re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. On or about January 7, 2009, AHCA conducted a biennial survey at the Respondent’s facility. AHCA cited the Respondent based on the findings below, to wit: 8. On or about January 7, 2009, based on record review, observation, and interview with the facility administrator on January 7, 2009, at approximately 9:30 a.m., it was determined that the laboratory had not renewed the State of Florida clinical laboratory license and had continued to perform laboratory testing. 9. Review of state licensure records prior to the survey showed that the facility's laboratory license, number 800003116, had expired on November 20, 2007 and there was no pending application. 10. Review of Rh testing, hematocrit testing records, and pregnancy testing records showed documentation of test results for patient testing that had been performed between November 20, 2007 and January 6, 2009. ll. Observation of the Florida Clinical Laboratory license on display in a frame in the laboratory showed that the license had expired on November 20, 2007. 12. The administrator stated that the laboratory did not have a new state clinical laboratory license and did not realize they had not renewed the Florida license. The administrator stated that the facility had not received the renewal letter prior to the expiration of the license and had not received the "failed to renew" letter from the Agency for Health Care Administration following expiration of the license. Plan of Correction must be completed by February 21, 2009. 13. The regulatory provision of the Florida Statutes and Agency Rules (2008), that are pertinent to this alleged violation read as follows: 483.091 Clinical laboratory license A clinical laboratory may not send a specimen drawn within this state to any clinical laboratory outside the staté for examination unless the out-of-state laboratory has obtained a license from the agency. A new license may be secured for thé new location before the actual change, if the contemplated change complies with this part, part II of chapter 408, and the applicable rules. ek 483.221 Administrative fines.— In determining the penalty to be imposed, the Agency must consider, inter alia, the severity of the violation, actions taken by the licensee to correct the violation, any previous violations by licensee, and the financial benefit to the licensee of committing or continuing the violation. * ko ® 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.— (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. (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. 15. Despite being unlicensed, Respondent continued to conduct laboratory testing and continued to reap the financial benefit of conducting said testing. 16. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. 17. The Respondent's history of failing to timely renew its license, coupled with Respondent’s performance of unlicensed clinical laboratory testing resulting in financial gain in the face of Agency notification advising of the expiration of the license and the consequences of unlicensed activity, serve as a basis for the instant action and are, inter alia, a consideration of the Petitioner in determining the penalty sought herein. 18. Unlicensed laboratory testing is testing without Agency oversight and may result in substandard laboratory protocols and results which place the health and welfare of Respondent’s patients in danger. 19. The violation alleged herein constitutes a deficiency, and warrants a fine of $413,000. WHEREFORE, AHCA demands the following relief: 1. Enter factual and legal findings as set forth in the allegations of this administrative complaint. 2. Impose a fine in the amount of $413,000. CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida Agency for Health Care Administration requests the following relief: 1. Make factual and legal findings in favor of the Agency on Count I. 2. Impose upon Community Healthcare Center of Pensacola, Inc. an administrative fine in the amount of $413,000 for the violation cited above. 3. Grant such other relief as the court deems is just and proper. Respondent is notified that it has a right to request an administrative hearing pursuant to Section 120.569, Florida Statutes (2008). Specific options for administrative action are set out in the attached Election of Rights (one page) and explained in the attached Explanation of Rights (one page). All requests for hearing shall be made to the Agency for Health Care Administration, and delivered to the Agency for Health Care Administration, Building 3, MSC #3, 2727 Mahan Drive, Tallahassee, Florida 32308; Michael O. Mathis, Senior Attorney. RESPONDENT IS FURTHER NOTIFED THAT THE FAILURE TO REQUEST A HEARING WITHIN 21 DAYS OF RECEIPT OF THIS COMPLAINT WILL REASULT IN AN ADMISSION OF THE FACTS ALLEGED IN THE COMPLAINT AND THE ENTRY OF A FINAL ORDER BY THE AGENCY. Florida. Michael O. Mathis Fla. Bar. No. 0325570 Counsel of Petitioner, Agency for Health Care Administration . Bldg. 3, MSC #3 2727 Mahan Drive Tallahassee, Florida 32308 (850) 922-5873 (office) (850) 921-0158 (fax) CERTIFICATE OF SERVICE L HEREBY CERTIFY, that a true and correct copy of the foregoing has been served by certified mail on pat day of ark , 2009 to Warren Do Taylor, Administrator, Community Healthcare Center of Pensacola, Inc., 6770 North Ninth Avenue, Pensacola, Florida 32504. Michael O. Mathis, Esq. STATE OF FLORIDA : AGENCY FOR HEALTH CARE ADMINIS: RATION RE: Case Name: COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC. CASE NO: 2009001632 ELECTION OF RIGHTS This Election of Rights form is attached to a proposed administrative action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint, or some other notice of intended action by AHCA. An Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine, Administrative Complaint or any other proposed action by AHCA. If an election of rights with your selected option is not received by AHCA within twenty-one (21) days from the date you received a notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. PLEASE RETURN YOUR ELECTION OF RIGHTS TO: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-922-5873 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other notice of intended action by AHCA and I waive my right to object or to have a hearing. | understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late . Fine, the Administrative Complaint, or other proposed action by AHCA, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. OPTION THREE (3)___ I do dispute the allegations of fact contained in the Notice of Intent to Deny, the Notice of Intent to Levy a Late Fee, the Notice of Intent to Levy a Late Fine, the Administrative Complaint, or other proposed action by AHCA, and I request a formal hearing (pursuant to Section 120.57(1), Florida Statutes (2006) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choo ; OPTION THREE (3), by itself, i ‘OT sufficient to obtain a formal hearing. You musi file a written petition in order to obt. «a formal hearing before the ‘Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.201, Florida Administrative Code, which requires that it contain: 1. The name and address of each agency affected and each agency’s file or identification number, if known; 2. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any; 3. An explanation of how your substantial interests will be affected by the Agency’s proposed action; 4. A statement of when and how you received notice of the Agency’s proposed action; ; 5. A statement of all disputed issues of material fact. If there are none, you must state that there are none; . 6. A concise statement of the ultimate facts alleged, including the specific facts you contend warrant reversal or modification of the Agency’s proposed action; 7. A statement of the specific rules or statutes you claim require reversal or modification of the Agency’s proposed action; and 8. A statement of the relief you are seeking, stating exactly what action you wish the Agency to take with respect to its proposed action. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. Facility type: (ALF? nursing home? medical equipment? Other type?) Facility Name: License number: Contact person(or attorney or representative): Name Title Address: ; Street and number City Zip Code Telephone No. ; Fax No. Email Signed: Date: NOTE: If your facility is owned or operated by a business entity (corporation, LLC, etc.) please include a written statement from one of the officers or managers that you are the authorized representative. If you are one of the managers or officers, please state which office you hold. ‘Entity name: Name of office you hold: You, your attorney or representative may reply according Subsection 120.54 Florida Statutes (2006) and Rule 28, Florida Administrative Code or you may use this recommended form. Lee teoF 70d FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RN on T Better Health Care for all Floridians Oana N July 9, 2009 CERTIFIED MAIL / RETURN RECEIPT REQUESTED WARREN TAYLOR MD COMMUNITY HEALTHCARE CTR OF PENSACOLA INC LICENSE NUMBER: 800003116 6770 NORTH NINTH AVENUE PENSACOLA, FL 32504-7346 CASE #: 2009007700 NOTICE OF INTENT TO DEEM APPLICATION INCOMPLETE AND WITHDRAWN FROM FURTHER REVIEW Your application for license RENEWAL is deemed incomplete and withdrawn from further consideration pursuant to Section 408.806(3)(b), Florida Statutes, which states that “Requested information omitted from an application for licensure, license renewal, or change of ownership, other than an inspection, must be filed with the agency within 21 days after the agency’s request for omitted information or the application shall be deemed incomplete and shall be withdrawn from further consideration and the fees shall be forfeited’’. You were notified by correspondence dated June 05, 2009 to provide further information addressing identified apparent errors or omissions within twenty-one days from the receipt of the Agency’s correspondence. Our records indicate you received this correspondence by certified mail on June 09, 2009. As this requested information was not timely received by the Agency, your application is deemed incomplete and withdrawn from further consideration. The outstanding issues remaining for licensure are: Failure to submit upon written request: e Health Care Licensing Application Addendum with ownership information in Section 2A. EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ECTION AND EXPLANATION OF RIGHTS FORMS. Karen Rivera, Manager — . Laboratory Licensure Unit Certified Article Number 7460 3901 9848 4334 8301 SENDERS. RECORD cc: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 2727 Mahan Drive,MS#32 Tallahassee, Florida 32308 h EXHIBIT STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR DOAH No. 09-3585 HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No. 2009001632 COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Respondent. COMMUNITY HEALTHCARE CENTER OF PENSACOLA, INC., Petitioner, vs. AHCA No. 2009007700 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The State of Florida, Agency for Health Care Administration (“the Agency”), and the licensee/applicant, Community Healthcare Center of Pensacola, Inc. (“the Provider”), pursuant to Section 120.57(4), Florida Statutes, enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Provider is a licensed abortion clinic pursuant to Chapter 408, Part II, Chapter 390, Florida Statutes, and Chapter 59A-9, Florida Administrative Code, and is also an applicant for clinical laboratory licensure pursuant to Chapter 408, Part II, Chapter 483, Part I, Florida Statutes, and Chapter 59A-7, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the licensiy EXHIBIT Page 1 of 5 authority over the Provider pursuant to the above referenced provisions of law; and WHEREAS, the Agency served an Administrative Complaint dated June 12, 2009, on the Provider; and WHEREAS, the Agency served a Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (“NOIW”) dated July 9, 2009, on the Provider; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the dispute; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of this proceeding; NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals are true and correct, are incorporated into the Agreement and are binding findings of the parties. 2. Upon full execution of this Agreement, the Provider agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), Florida Statutes, a formal proceeding under Subsection 120.57(1), Florida Statutes, appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court (DOAH) of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled, provided, however, that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 3. Upon full execution of this Agreement, the Agency agrees to voluntarily dismiss the Administrative Complaint against the Provider with prejudice foregoing the administrative fine sought to be imposed against the Provider in its entirety, and the Provider agrees to: (1) the Page 2 of 5 voluntarily relinquishment of its abortion clinic license (License No. 821) and closure of the abortion clinic effective on or before October 31, 2009, (2) the surrender of the license certificate to the Agency at “Hospital and Outpatient Unit, Agency for Health Care Administration, 2727 Mahan Drive, MS #31, Tallahassee, Florida 32308” immediately upon the discontinuance of the operation of its clinic, (3) the withdrawal of its petition for formal hearing with regard to the pending Administrative Complaint, and (4) the withdrawal of its initial application for clinical laboratory licensure which is the subject of the NOIW. As part of the closure of its clinic, the Provider recognizes that it must comply with all statutes and rules regarding its closure, including but not limited to, Section 408.810 and Section 456.057, Florida Statutes. Until the license is voluntarily relinquished, the Provider recognizes that it must comply with all statutes and rules required by its licensure, including but not limited to, the reporting requirements under Section 390.0112, Florida Statutes, and Rule 59A-9.034, Florida Administrative Code. The Provider agrees to submit a final report for the final month or partial final month of operation, and if unable to do so through the Agency’s on-line system, may do so by United States mail at the above-referenced address. 4. Venue for any action brought to interpret, enforce or challenge the terms of this Agreement and its corresponding Final Order shall lie solely in the Circuit Court of Florida, in and for Leon County, Florida. 5. By executing this Agreement, the Provider does not admit the allegations raised in the Administrative Complaint and NOIW, but recognizes that the Agency continues in good faith to assert these allegations. 6. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled cases. 7. Each party shall bear its own costs and attorney’s fees. Page 3 of 5 8. This Agreement shall become effective on the date upon which it is fully executed by all parties. 9. The Provider, for itself and any controlling interests, parent corporations, subsidiary corporations, successors, transferees, and any related entities, discharges the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal court, state court or administrative forum, including any claims arising out of this Agreement, by or on behalf of the Provider. 10. This Agreement is binding upon all parties and those identified in the above paragraph of this Agreement. 11. In the event that the Provider was a Medicaid provider at the time of the occurrences alleged in the administrative complaint, this Agreement does not prevent the Agency from seeking Medicaid overpayments related to the subject issues or from imposing any further sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 12, The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. The Provider’s representative has the legal capacity to execute the Agreement and has consulted with independent counsel. The Provider understands that counsel for the Agency represents solely the Agency and that counsel for the Agency has not provided any legal advice to, or influenced, the Provider in its decision to enter into the Agreement. 13. This Agreement contains and incorporates the entire understandings of the parties. This Agreement supersedes any prior oral or written agreements between the parties. This Page 4 of 5 Agreement may not be amended or supplemented except in writing. Any attempted assignment of this Agreement shall be void. 14. All parties agree that a facsimile signature suffices for an original signature. The following representatives acknowledge that they are duly authorized to enter into this Agreement. Elizabeth Deputy Se Agency for Health Care Administration Community Healthcare Center of Pensacola 2727 Mahan Drive, Bldg. #1 6770 North Ninth Avenue Tallahassee, Florida 32308 Pensacola, Florida 32504 DATED: Mf 7 2007 DATED: w\ | 04 COoUNAL 0 Grmun Reronice ht or nn : . Andrew T. Lavin, Esquj Office of the General Counsel Navon & Lavin, P.A. Agency for Health Care Administration Emerald Park Office Center 2727 Mahan Drive, Mail Stop #3 2699 Stirling Road, Suite B-100 Fort Lauderdale, Florida 33312 DATED: u/ 19]04 DATED: “4 Thomas M. Hoeler, Senior Attorney Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florig& 32708 DATED: Page 5 of 5
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: 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. . . Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial: The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information: ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.
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 on the grounds that he is not a graduate of a medical school recognized by the World Health Organization. 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.
Findings Of Fact STIPULATED FACTS The facts set forth below in paragraphs 1.-20. are stipulated to by the parties. The initial notarized application of Petitioner, Henry Calas, for licensure by endorsement was filed on September 29, 1993, and is known as the "September 29 Application." A second notarized application submitted by Dr. Calas on or about January 27, 1994, is known as the "January 27 Application." A third notarized applcation was submitted by Dr. Calas on or April 25, 1994, and is identified as the "April 25 Application." This third application was filed at the direction of the Credentials Committee during its March 25, 1994 meeting. On March 25, 1994, Petitioner appeared before the Credentials Committee of the Board of Medicine. At the time, the Credentials Committee had two applications before it, the September 29 Application and the January 27 Application. On May 13, 1994, Dr. Calas appeared before the Credentials Committee of the Board of Medicine. At that time, the Credentials Committee had before it all materials dated prior to that time that are presently contained in the parties' joint exhibit 1. This exhibit consists of all materials in Petitioner's application file. By order filed August 10, 1994, the Board of Medicine approved Dr. Calas' application for licensure: . . .contingent upon applicant being on probation for 2 years, 6 months of said probation shall be under indirect supervision by a licensed physician who shall review 50 percent of patient records including billing. The Board hereby states as the basis for this decision that you misrepresented your qualifi- cations on your application for licensure. See Section 458.331(1)(gg). Petitioner timely filed his Petition for Formal Hearing disputing the Board's finding that he had misrepresented his qualifications on his application and requested that he be granted an unrestricted Florida medical license. Dr. Calas obtained his Doctor of Medicine degree from Universidad Central Del Este in the Dominican Republic on February 3, 1984. Dr. Calas participated in a residency in Internal Medicine at Northwestern Ohio College of Medicine from May 15, 1989, until December 30, 1990. Throughout that time, the program director was Dr. Andre J. Ognibene, Professor of Medicine and Chairman of the Department of Medicine. Dr. Callas successfully completed a three year residency in Neurology at Albany Medical College, Albany Medical Center Hospital, Albany, New York from January 1, 1991 to December 31, 1993. During his third year, Petitioner served as Chief Resident. Dr. Calas meets all statutory educational and training qualifications required of him for licensure as a physician in Florida. THE ELLIS HOSPITAL ISSUE In his September 29, 1993 application on page 3, Dr. Calas represented that he currently had privileges at Ellis Hospital stating "Ellis Hospital 1101 Nott St. Schenectady NY 12308 I just obtained privieleges (sic), and I have not begun to work there yet." Dr. Michael SS. Jakubowski, Vice President, Medical Affairs, Ellis Hospital, wrote the Florida Board of Medicine regarding Petitioner on April 6, 1994. THE NORTHEASTERN OHIO COLLEGE OF MEDICINE ISSUE On October 18, 1990, Dr. Calas and Dr. Ognibene met regarding the Petitioner's record and performance in his Internal Medicine Residency. That meeting was memorialized by Dr. Ognibene in a document entitled, "Counseling Session/Longitudinal Evaluation" and signed by Dr. Ognibene and placed in Petitioner's file at Northeastern College of Medicine. On October 18, 1993, Dr. Andre J. Ognibene wrote the Florida Board of Medicine to return a training and evaulation form of the Board regarding Petitioner. On October 28, 1993, the Medical Board staff wrote Dr. Ognibene inquiring, in part, "Accordingly, please clarify why [Calas] left prior to completion, or if he was given credit for a complete year, on what basis(es); indicate whether he left in good standing and specify if he was (or would have been) offered a contract to continue to complete the program." On November 4, 1993, Dr. Ognibene responded by letter to the Board staff's letter of October 28, 1993. On February 11, 1994, the Medical Board staff wrote Dr. Ognibene, acknowledged receipt of his November 4, 1993 letter and inquired as follows: Please specify if he was (or would have been) offered a contract to continue to complete your program? On February 14, 1994, Dr. Ognibene responded by letter to Board staff's letter of February 11, 1994. At the request of Dr. Calas, Dr. Ognibene wrote a letter to the Board of Medicine dated April 25, 1994, which was received by the Board in time for the Credentials Committee meeting of May 13, 1994. OTHER FACTS By letter dated January 12, 1994, Petitioner represented to the Board of Medicine that he "completed PGY-1 [Post Graduate Year 1] in good standing" and "chose not to remain in medicine despite the offer of a PGY-2 contract" in the residency program at Northeastern Ohio College of Medicine's internal medicine program. By letter dated January 15, 1994, to an administrative assistant to the Board, Petitioner stated he "declined" the contract for a second year. In actuality, Petitioner had completed PGY-1 in good standing, but was counseled by Dr. Andre J. Ognibene, the program director, to seek another specialty. Petitioner was perceived as deficient in organizational skills necessary to meet the complexities of internal medicine. Petitioner elected neurology. Ognibene concurred with Petitioner's choice "because he could then focus on one organ system and not 17 organ systems which were rather difficult for him [Petitioner] to assimilate." If Petitioner were unable to secure a PGY- 2 position in neurology, Ognibene agreed that Petitioner would be permitted to stay for another year in internal medicine, although there was no expectation by Ognibene that Petitioner could complete the internal medicine residency. Petitioner, in effect, was promised a safety net in the event he did not secure a neurology position, but he was not "offered" a position for the subsequent year in internal medicine which he could have immediately accepted or declined. Petitioner's statement on the September 29 application that he currently had privileges at Ellis Hospital was also artfully inaccurate. Petitioner possessed no documentary evidence confirming any grant of privileges from the hospital to himself at the time he completed the application. Instead, if his testimony is credited, he relied upon the representation of a clerical worker at the hospital made to him in the course of a telephone conversation which he instigated wherein he was allegedly told that "all approvals had been received and he was ready to begin." This recital by Petitioner of a statement made to him on the telephone by an individual known only as "Nancy" is not corroborated by other direct evidence and is further complicated by Petitioner's almost hypertonic demeanor and behavior while testifying; consequently, Petitioner's testimony on this point is not credited. Although his application was pending, privileges are granted only when a staff vacancy ocurrs and employment begins. Petitioner knew at the time that he stated he had privileges at Ellis Hospital that a neurology position on the staff was not yet available and added the words "I have not begun to work there yet." As stated by Petitioner at the final hearing, he would have better served his own interest by not representing that he possessed privileges since the purpose of disclosure of such information is to enable the Board of Medicine to review an applicant's performance. Petitioner's action in stating that he possessed privileges at Ellis Hospital constituted misrepresentation by him, notwithstanding the addition by him on the application of the words "I have not begun to work there yet".
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application, absent the legal determination of the Board of Medicine to permit the conditioned admission of Petitioner to the practice of medicine in the State of Florida. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Adopted. Adopted as to first sentence, remainder rejected as redundant. 3.-12. Adopted. 13.-35. Rejected, subordinate to HO findings. Respondent's Proposed Findings. 1.-10. Adopted, but not verbatim and frankly in much more condensed form than that proposed by Respondent's counsel. COPIES FURNISHED: Wilson Jerry Foster Attorney at Law 227 E. Virginia St. Tallahassee, FL 32301 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Harold D. Lewis General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration The Northwood Centre 1940 N. Monroe St. Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Dr. Winifred Chambers received a master's degree in religion and art in 1957, a second master's degree in 1968 in philosophy with a specialization in ethics and social philosophy and a Ph.D. (with honors) in 1975 in the philosophy of science, all from the University of Chicago. While working on her dissertation, she studied at the Chicago Institute of Psychoanalysis. After working around hospitals and conducting classes and workshops on medical ethics for medical personnel, Petitioner decided to attend medical school. Because her educational training did not include extensive background in certain scientific areas, Petitioner was concerned with her ability to score well on the MCATS, which are the entrance examinations required by all medical schools in the United States. In addition, Petitioner's age (she was in her mid 40's at the time) was considered a negative factor by many medical schools in the United States. As a result, she inquired about attending certain foreign medical schools. She was limited in the schools that she could consider because she did not speak Spanish. Medical Education In 1979, Petitioner applied to the American University of the Caribbean (AUC). AUC taught its medical courses in English and Petitioner was only required to make up a few undergraduate science courses (including physics) in order to enroll in the medical school. Petitioner enrolled in classes at AUC in May of 1980. She actually started classes a few days after the semester began. She completed the first two semesters from May to December 1980 and then went home during the Christmas break. During the break, Petitioner learned that she had received an F in her course in neurosciences. Petitioner met with the professor from that course to discuss the failing grade she received and also met with the President of AUC. As a result of these meetings, it was her understanding that the grade was changed to a passing grade. In January of 1981, Petitioner visited CETEC (another Caribbean medical school located in the Dominican Republic,) and met with officials of the school to discuss transferring from AUC to CETEC. Petitioner applied to CETEC during her visit and, prior to leaving, was informed of her acceptance into medical school at CETEC. Petitioner returned to AUC and completed her third semester at the school. In May of 1981, she officially enrolled at CETEC by initiating clinical rotations at Sharp Hospital in San Diego, California. Even though Petitioner had only completed three semesters at AUC, she was granted status as a fifth semester medical student. She contends that she was granted this status based upon CETEC'S evaluation of her transcript and the number of hours she took at AUC. Prior to her enrollment at CETEC, Petitioner provided CETEC with a transcript indicating she had passed neurosciences at AUC and CETEC gave her credit for the course. From May 4, 1981 to June 6, 1982, Petitioner participated in clinical rotations at Sharp Memorial Hospital in San Diego, California as part of her medical education at CETEC. During this time period, Petitioner also participated in a clinical rotation at Children's Hospital in San Diego, California (from 12/28/81 to 2/20/82). Beginning in 1983, the media and some state licensing agencies began challenging the validity and/or authenticity of the credentials and training of some CETEC medical graduates. CETEC medical school was ultimately closed in 1984. The Dominican Republic government formed an agency to verify and certify the transcripts of CETEC graduates. This agency was called the "Counsel For Superior Education" also referred to by the acronym of CONES. CONES verified and certified the legitimacy of higher education credentials from all Dominican schools submitted to other countries. As part of her pending Florida Application, Petitioner has submitted a certification from CONES dated October 15, 1987 attesting to Petitioner's graduation from medical school at CETEC on June 12, 1982. Petitioner has also submitted a second certification from CONES dated July 8, 1988 confirming her graduation on June 12, 1982. Included as part of the documents submitted by Petitioner from CONES is a Certification of Clinical Rotations dated July 14, 1987 (the "CONES Report") and an academic transcript dated July 14, 1987 (the "CONES Transcript.") The "Education Commission For Foreign Medical Graduates" ("ECFMG") provides a certification of the education of applicants from foreign medical schools who seek licensure in the various United States and offers an examination required by some state licensing boards for licensure of applicants graduating from foreign medical schools. Petitioner passed the ECFMG examination and was certified by the ECFMG in 1982. However, after the CETEC scandal began in 1983, the ECFMG started an investigation of graduates of CETEC (including Petitioner) for the purpose of reverifying their medical training. The ECFMG required clearance from CONES of Petitioner's CETEC education before reverifying her ECFMG certificate. The ECFMG reinstated Petitioner's ECFMG certification on June 26, 1987. The earliest certification from CONES that has been submitted by Petitioner is dated July 14, 1987, approximately two and a half weeks after the ECMFG certification. It is not clear what the ECFMG relied upon in reissuing a certification to Petitioner. While Petitioner contends that CONES had originally certified her CETEC transcript shortly after her graduation in June of 1982, no competent evidence was presented to establish when or if an earlier CONES certification was issued. In any event, Petitioner currently holds a valid ECFMG certificate. In certifying Petitioner's medical degree from CETEC, CONES gave Petitioner credit for courses taken and work done at non-medical schools (i.e., the University of Chicago) prior to entering medical school. These credits are discussed in more detail in Findings of Fact 17. Although the ECFMG has apparently accepted CONES' certification of Petitioner's medical education at CETEC, there are several inconsistencies on the face of the CONES Report. The CONES Report states that during the period from May 4, 1981 to June 6, 1982, Petitioner completed fifty six (56) weeks of clinical rotations. However, in reaching this total the CONES Report provides one week of credit for a rotation (from 5/24/82 to 5/28/82) in obstetrics and gynecology which overlapped with another rotation (from 5/10/82 to 6/5/82) in obstetrics and gynecology. It it also provides double credit for a single two week clinical rotation (from 5/4/81 to 5/16/81) in obstetrics and gynecology. In addition, there are two periods of time (from 2/21/82 to 3/14/82 and from 4/25/82 to 5/9/82, which total approximately five (5) weeks), during which no clinical rotations were taken. Since the period between May 4, 1981 and June 6, 1982 consisted of approximately fifty seven (57) weeks, it does not appear that Petitioner actually completed fifty six (56) weeks of rotations as listed. Deleting the double credit received for the 5/4/81 to 5/16/81 clinical rotation, the CONES Report only appears to certify completion of fifty four (54 weeks) of clinical rotations. Moreover, those fifty four (54) weeks of rotations include one week of credit for five (5) days in obstetrics and gynecology (from 5/24/82 to 5/28/82) which directly overlapped a separately listed clinical rotation in obstetrics and gynecology, and one (1) week of credit for six (6) days in obstetrics and gynecology from 6/1/82 to 6/6/82. Thus, on the face of the CONES Report it appears that Petitioner actually completed only fifty three (53) weeks of rotations at most. This conclusion is bolstered by the fact that, according to the CONES Report, there were approximately five (5) weeks of the fifty-seven (57) week period during which no clinical rotations were taken. Petitioner contends that the CONES Report fails to take into account a five (5) week clerkship in family medicine which she completed at Sharp Hospital and which was accepted by the ECFMG when Petitioner applied for licensure in California. This clerkship is reflected in the CETEC Transcript even though it is not reflected in the CONES Report. It is not clear why this rotation was not included in the CONES Report However, the evidence did establish that Petitioner completed the rotation. One of the five weeks of this family medicine rotation overlaps with an OB/GYN rotation (from 5/4/82 -5/8/82). The time frame of the family medicine rotation roughly coincides with the period of time during which no rotations are reflected in the CONES Report. Thus, this rotation would only add four more weeks to the clerkship total listed on the CONES Report. Even if this four week rotation is added to the fifty three (53) weeks certified in the CONES Report, the Report would still only indicate that Petitioner completed a total of fifty seven (57) weeks of clinical rotations. According to the boiler-plate language on the CONES Report, sixty (60) to seventy-two (72) total weeks of clinical rotations had to be completed by CETEC students who took their clinical rotations outside of the Dominican Republic. Thus, the CONES Report does not reflect completion of the required weeks of clinical rotations even though CONES has issued a certification that purports to certify successful completion of the degree requirements. This discrepancy has not been adequately explained. The CONES Report does not reflect any clinical rotations by Petitioner in psychiatry. However, the CETEC Transcript does indicate that Petitioner was granted eight hours credit for her graduate studies at the University of Chicago from 1971-1973. Petitioner contends she is entitled to at least four hours of clerkship in psychiatry for those studies. However, it appears from the CONES Transcript that the credit she received was applied towards classes in Human Conduct which were a part of the curriculum during the first two years of medical school. There is no evidence to indicate that CETEC or CONES granted or should have granted Petitioner credit for clinical rotations in psychiatry based upon her graduate studies at the University of Chicago. During a three week period (between her second and third semesters at AUC) from December 20, 1980 to January 10, 1981, Petitioner participated in an OB/GYN clinical rotation at Sharp Memorial Hospital in San Diego, California (hereinafter this rotation will be referred to as the "Unsanctioned Rotation.") This rotation is usually not done until after a student completes the third semester of medical school. Petitioner's participation in this Unsanctioned Rotation was not authorized by any medical school and was not a part of any medical school program. Petitioner contends that she satisfied the required sixty (60) clerkship weeks if the Unsanctioned Rotation at Sharp Hospital from December 20, 1980 to January 10, 1981 is added to the undisputed clinical rotations and the family medicine rotation discussed in Findings of Fact 15. However, the Unsanctioned Clerkship was not accepted by CONES and Petitioner has not provided sufficient evidence to establish that it should be counted towards her required clinical rotations. Although CETEC had previously granted Petitioner credit for the neurosciences course at AUC, CONES was not able to verify that Petitioner passed the course and CONES required Petitioner to retake the course in order to obtain the 1987 certification from CONES. Petitioner attended Northwestern University during the spring quarter of 1987 and completed a four credit hour course (based on a quarter system) in neurosciences. This neurosciences course was apparently given five hours ex post facto credit by CONES to fulfill the neurosciences requirement for Petitioner's 1982 CETEC medical diploma. From December, 1987 to March, 1988, Petitioner attended Xochicalco Medical School in Ensenada, Mexico in order to take additional coursework in partial fulfillment of a requirement by the California licensing board in a stipulated agreement for additional medical training before licensure. (Petitioner's stipulation with the State of California is discussed in more detail in Findings of Fact 47-50.) The courses taken at Xochicalco were approved by the California licensing agency and included clinical pathology, pharmacology (two courses) and physiology (two courses). Petitioner successfully passed all of the courses. However, no evidence was presented as to the accreditation status of this school. Petitioner completed a five week rotation in emergency medicine at Cruze Roja Hospital in Mexico in 1988 while she was completing the remedial science classes required by the California Licensing Board. Post-Graduate Training Petitioner completed one year of post graduate training from July 1, 1982 to June 30, 1983 in the family medicine residency program at Holston Valley Community Hospital through East Tennessee State University's Quillen-Dishner College of Medicine. Petitioner has presented a certificate verifying succcessful completion of her first post graduate year of training in this program. Petitioner performed her residency at two hospitals which are part of the East Tennessee State University Quillen-Dishner College of Medicine: Kingsport Family Practice Center and Holston Valley Community Hospital. She saw patients at the Kingsport Family Practice Center for 7 months, one afternoon each week under the supervision of various physicians. The rest of Petitioner's residency was performed at the Holston Valley Community Hospital. Dr. Lee S. Hyde was the program director of the Kingsport Family Medicine Center. Petitioner's contact with Dr. Hyde was limited, but she did have several consultations with him about patients. In an evaluation submitted to the Florida Board of Medicine in connection with Petitioner's application for licensure, Dr. Hyde evaluated Petitioner's diagnostic ability and relationships with patients as poor. He also stated that Petitioner came to the program with a "poor fund of knowledge, clinical habits, and basic medical education". Although he felt Petitioner made progress during the residency program, he did not think it was sufficient. However, his overall evaluation was to recommend with reservations. Dr. Hyde's evaluation of Petitioner to the Board was received by the Board on July 18, 1983. Dr. Hyde noted on the back of the evaluation form that Petitioner was not ready to begin a second year of unsupervised practice. Petitioner was not and would not have been offered a contract for a second year in the residency program. Dr. Hyde also commented that Petitioner demonstrated poor judgment by once going "AWOL" from the program. While Petitioner did take a three (3) day leave over a weekend while assigned to a particular rotation with another physician contrary to the rules of the program, she did so with the permission of her supervisor at the time. Prior to the negative evaluation submitted by Dr. Hyde in July of 1983, Dr. Hyde had previously written a letter dated March 24, 1983 to the Florida Board of Medicine recommending Dr. Chambers for licensure stating that she was in good standing with the program and of reasonable professional competence and excellent moral character. Leslie P. Reynolds, Jr., M.D., was a professor of Family Medicine, assistant Dean, and Director of Medical Education at the Holston Valley Hospital during Petitioner's year of residency. In a June 29, 1983 evaluation form submitted to the Florida Board, Dr. Reynolds, gave an evaluation of Petitioner's performance during the family medicine residency and recommended her as an outstanding applicant. Dr. Reynolds subsequently submitted an affidavit to the Florida Board of Medicine dated October 21, 1987 attesting that Petitioner earned the respect of both her instructors and fellow residents and that the hospital's records suggest that she performed well on all her services and that she was very helpful to other residents. Several other physicians who served as clinical supervisors during Petitioner's residency at Holston Valley have submitted letters of recommendation and virtually all other evaluations of her work were positive. Aside from the letter from Dr. Hyde, (Dr. Hyde did not testify and his letter is hearsay,) no other evidence was presented to demonstrate that Petitioner is incapable of practicing medicine with reasonable skill and safety. The weight of the evidence established that Petitioner is capable of practicing with reasonable skill and safety. Numerous letters from the physicians who have worked with Petitioner over the last several years corroborate to her ability to practice medicine with reasonable skill and safety. Petitioner was employed as a house physician at Jackson Memorial Hospital in Miami from July 11, 1983 to October 31, 1983. Her position was under the supervision of the Department of Family Medicine in the Ambulatory Care Unit of the Emergency Room Department and the Family Medicine Clinical Faculty from the University of Miami. However, the position was not an advanced residency program and the nature of the supervision and training that Petitioner received has not been fully explained. Furthermore, the evidence did not establish the exact nature of her duties and functions. From October 1984 to March 1985, Petitioner participated in a series of clinical rotations at the Wesley Medical Center which is affiliated with the University of Kansas. The exact nature of Petitioner's position is not clear. The position at the Wesley Medical Center was a non-paying position during which Petitioner completed an eight week rotation in Internal Medicine, twelve weeks in General Surgery and four weeks in psychiatry functioning in each rotation at the level of a first-year resident. Petitioner was not officially enrolled as a resident in this program. However, she did receive evaluations from the attending physicians and her evaluations by the supervising physicians in that program were acceptable. In 1988, Petitioner completed an eight month internship at Universal Medical Center in Plantation, Florida Universal Medical Center is an osteopathic teaching institution. This internship was undertaken to satisfy a requirement of the California licensing authority for eight months of "remedial" clinical work. See, Findings of Fact 50. Petitioner was evaluated as performing in a competent and professional manner in this program. At the Universal Medical Center, Petitioner completed thirty three (33) weeks of clinical rotations. The program extended from March 21, 1988 through November 3, 1988. Her duties and responsibilities were similar to other interns in the program. In sum, Petitioner has successfully completed several additional science courses and completed at least thirty eight (38) additional weeks of clinical training beyond her medical school rotations and first post-graduate year residency. Those weeks of training include thirty three (33) weeks at Universal Medical Center which is an approved osteopathic medical training program that was accepted by the California Licensing Agency for purposes of Petitioner's remedial clinical work. Licensure Applications Petitioner passed the FLEX exam in June, 1982 with a score of 78. She also passed the ECFMG exam in January, of 1982 with a score of 76. In addition, she passed an oral examination administered by the California State Licensing Board in 1988. After graduating from CETEC in June 1982, Petitioner initiated efforts to obtain licensure in several states. In her initial attempts at licensure, Petitioner submitted several misleading applications which have backfired into a morass of complications and confusion. In 1982, Petitioner knowingly submitted a fraudulent application to the State of Oregon. Petitioner filed the application with the Oregon licensing authority in order to take the Federal Licensing Examination known as the FLEX. Oregon was one of the few states which allowed applicants to take the FLEX examination prior to graduation and also granted applicants some choice in the location of the exam. Petitioner took the FLEX in the Virgin Islands in June of 1982. This was the nearest location to the Dominican Republic where she was attending graduation ceremonies at CETEC around the same time. On the application to take the FLEX exam filed with Oregon, Petitioner falsely stated that she attended AUC from May, 1979 to April, 1981. She actually attended AUC from May, 1980 through April, 1981. In the early part of 1983, Petitioner submitted applications for licensure to South Carolina, California, Georgia, New Mexico, and Florida. South Carolina determined that Petitioner was not eligible for licensure in that state because she had not completed the required post-graduate training. Her application for licensure in that state was returned without action. In her applications to Georgia, California and Florida in 1983, Petitioner misrepresented her attendance at CETEC as having commenced in May, 1979 rather than reporting attendance at AUC starting in May, 1980 and ending in May, 1981 when she transferred to CETEC. Petitioner admits that she falsely stated that she began her medical education in May, 1979 on the Oregon FLEX application, as well as the California, Georgia and 1983 Florida applications. In an attempt to justify these false statements, Petitioner points out that the Dean from CETEC had issued a letter to these licensing agencies stating that Petitioner had completed eight (8) semesters at CETEC from 1979 to 1982. Petitioner claims she completed the misleading applications because she wanted her statements to be consistent with the CETEC Dean's certification of attendance. It would appear that an additional motivation for falsifying the applications was to avoid having to explain that she had received medical education credit for some of her non-medical course work at the University of Chicago approximately ten years earlier. It is unclear why the Dean's certification letters were not accurate. While no evidence was presented to directly link Petitioner to the issuance of these incorrect Dean's letters, the shady circumstances surrounding her involvement with Pedro de Mesones around this same time period (discussed in Findings of Fact 87-95 below) leads to an inference that Petitioner was at least indirectly responsible for these misleading letters. In her February 1983 application to New Mexico, Petitioner accurately stated the dates and locations of her medical school education. No adequate explanation was given as to why the correct dates were listed on this 1983 application but not the other applications filed around the same time in Georgia, Florida and California. Petitioner listed the correct dates of attendance at AUC and CETEC on her 1984 Florida application and the 1988 filing which are discussed in more detail in Findings of Fact 69-72 below. Georgia and New Mexico granted Petitioner licensure based upon the 1983 applications. California initially denied her licensure. However, as described in Findings of Fact 47-51 below, Petitioner challenged that decision. Florida permitted Petitioner to withdraw her 1983 Application rather than go to hearing on the Board's intent to deny licensure. See Findings of Fact 67-68. Petitioner's application for licensure in California was filed in the Spring of 1983. Petitioner received a letter in April of 1983 returning her application without action. Petitioner requested reconsideration of her application which, eventually, resulted in a proposed order of denial dated June 9, 1986. Petitioner requested a hearing on that proposed denial. The proposed denial was resolved without hearing by a stipulation between Petitioner and the California licensing agency in an order dated November 5, 1987 (the "California Stipulation"). The stipulated findings of fact in the November 5, 1987 California Stipulation recognize that the application filed by Petitioner in March, 1983 remained pending without action until the 1987 California Stipulation was entered. The California Stipulation notes that the proposed denial of her application in 1986 was based on the grounds that: (a) Petitioner had not listed on her application her attendance at AUC; (b) she had falsely stated under oath that she began her medical education at CETEC beginning in May, 1979; and (c) her medical education did not conform to California requirements. The California Stipulation provides that it supersedes the reasons set forth in the 1986 proposed denial so long as Dr. Chambers abides by the terms of the Stipulation. The California Stipulation makes no findings of fact or conclusions of law regarding wrongdoing on the part of the Petitioner. The California Stipulation provides that Petitioner would be issued a license to practice medicine in California upon completion of remedial medical education specified in the Stipulation, completion of an additional academic year of clinical training before September, 1990, satisfactory proof of certification by CONES, and passage of an oral examination. The California Stipulation also provides that Petitioner shall take forty (40) hours of continuing medical education within the first two (2) years of licensure in addition to the continuing education classes statutorily required for licensure in California. Petitioner was issued her license to practice medicine in California on November 11, 1988 demonstrating that she satisfied the requirements of the November 1987 California Stipulation. In her application to the State of Georgia in June of 1983, the Petitioner specifically represented that she attended CETEC from May of 1979 to April 1980, attended AUC from April, 1980 to May, 1981 and CETEC again from April 1981 through June, 1982. The Dean of CETEC certified to the Georgia licensing agency that Petitioner enrolled in the school of medicine in May, 1979 and attended eight semesters of 4.2 months each. As discussed in Findings of Fact 43, the basis for this certification by the Dean is unclear. Petitioner obtained a license to practice medicine in Georgia based on her 1983 application and did in fact practice medicine in that state from January, 1984 to August, 1984. On August 17, 1984 the Georgia State Board of Medical Examiners issued a Notice of Hearing to Petitioner setting forth charges against her including failure to meet the standards for licensure and/or intentionally making false statements in obtaining a license to practice medicine. The charges also included an allegation that Petitioner "was denied a license by the Board of Medical Quality Assurance of the State of California based on evidence of making false statements on a sworn application and submitting false and/or inaccurate certificates of education to obtain a license to practice in that state." In fact, in 1984 the California licensing authority had not formally denied Petitioner's application for licensure. The proposed denial of Petitioner's California application was pending, but not acted upon. Indeed, a formal denial of her California application was never finalized. Instead, the issues were resolved by the California Stipulation in November, 1987. On September 22, 1984, Petitioner executed a "Voluntary Surrender" which was approved by the Georgia State Board of Medical Examiners and served as the final order of that agency with respect to the Notice of Hearing discussed in Findings of Fact 54. By voluntarily surrendering her license to practice medicine in Georgia, Petitioner waived her right to a hearing on the charges contained in the Notice of Hearing. The first paragraph of the "Voluntary Surrender" states: "I hereby acknowledge that this surrender shall have the same effect as revocation of my license, and I knowingly forfeit and relinquish all right, title and privilege of practicing medicine in the State of Georgia, unless and until such time as my license may be reinstated, in the sole discretion of the Board." Notwithstanding this language, Petitioner contends the "Voluntary Surrender" should be distinguished from a revocation because she did not admit to any wrongdoing and because she was allowed to seek reinstatement upon application and demonstration of the ability to safely practice medicine. The Voluntary Surrender of the Georgia license contains no specific findings of fact or conclusions of law that establish any wrongdoing on the part of the Petitioner. The "Voluntary Surrender" states that Petitioner did not admit to any wrongdoing and it allows Petitioner to seek reinstatement. The Executive Director of the Composite State Board of Medical Examiners of Georgia certified to the Florida Board of Medicine on August 2, 1988, that Petitioner's Georgia license had been issued in 8/83, surrendered in 9/84 and that license had not been "suspended or revoked." Thus, while disciplinary action was clearly initiated against Respondent in Georgia, her license was not revoked. Petitioner was licensed to practice medicine in the State of New Mexico in November, 1983. On January 10, 1985, the New Mexico Board of Medical Examiners served on Petitioner a Notice of Contemplated Action notifying her of charges including having made misrepresentations in applying for and procuring a license to practice medicine in New Mexico and having her license in Georgia revoked. The New Mexico case was referred to a hearing officer who considered argument and briefs by the parties regarding the nature and effect of Petitioner's surrender of her Georgia license. By an order of the New Mexico State Board of Medical Examiners, Petitioner's New Mexico medical license was revoked in January, 1986. The New Mexico order of revocation treated Petitioner's voluntary surrender of her Georgia medical license as the functional equivalent of a revocation for purposes of the New Mexico licensing statute. In reaching this determination, the New Mexico Board relied upon the wording of the Voluntary Surrender and the Georgia Statutes which both indicate that a voluntary surrender shall have the same effect as revocation. No other specific grounds were cited by the New Mexico Board in its Findings of Fact and Conclusions of Law, Decision and Order. As indicated above, Petitioner's initial application to the Florida Board of Medicine (the "Board") for licensure was filed March, 1983. When the Board proposed denial, Petitioner requested a formal hearing. Prior to hearing, the Board obtained leave from the hearing officer to amend the basis for denial to include grounds relating to information presented to the Board by U.S. Postal Service investigators regarding Petitioner's truthfulness on her application form and the validity of certain documents she utilized in her attempt to obtain a Florida medical license. The Board was granted leave to amend as requested by order dated February 20, 1984. Shortly thereafter, Petitioner filed with the hearing officer a motion to withdraw her application because of the new information presented from the "federal investigation." The Board granted the request to withdraw the 1983 Application in an order rendered May 29, 1984. The Board's proposed denial of Petitioner's 1983 Application was on the basis that the Board had reason to believe that Petitioner, "as a graduate of CETEC, was not capable of safely engaging in the practice of medicine as a result of a report of the California Board of Medical Quality Assurance which indicated gross irregularities in the degree granting process of CETEC University and which raised serious doubts about the adequacy of medical education certified by CETEC." Petitioner filed with the Board a second application for licensure in Florida in December of 1984 (hereinafter referred to as the 1984 Application.) In response to a request for additional information from the Board regarding this second application, Petitioner executed a waiver of the requirement that the Board act upon the application within 90 days. As a result, the 1984 Application was left pending. The 1984 Application was for licensure by endorsement based upon Petitioner's license in New Mexico. As discussed in Findings of Fact 62-66, action was initiated against that New Mexico license in January, 1985 ultimately leading to the revocation of the license in January, 1986. After her New Mexico license was revoked, Petitioner did not hold a valid license to practice medicine in any other state until California issued her a license in November, 1988. On August 1, 1988, Petitioner filed another application with the Board as an update to the 1984 Application. (This August 1988 application is referred to as the "1988 Filing.") In her 1988 Filing, Petitioner included a recertification from ECFMG. At the time she filed her 1984 Florida application, Petitioner's original ECFMG certification had been placed on hold because of the CETEC scandal. Petitioner was required to provide a revalidation of her medical education by ECFMG in order to obtain consideration of her application in Florida. This revalidation was not provided until the 1988 Filing. On September 12, 1988, Petitioner filed a supplement to the 1988 Filing. On November 2, 1988 the Board requested additional information relating to the application. On December 12, 1988 Petitioner filed a response to this request. The Board issued an Order of Intent to Deny on March 3, 1989 stating as grounds for denial in Paragraph 2: You have had licenses in Georgia, New Mexico and California acted against by the licensing bodies of those states. See, Subsections 458.331(1)(b) and 458.311(1)(d), Florida Statutes (1988). The only year of training you received was in 1982-1983 at Holston Valley Community Hospital and the Kingsport Family Practice Center through the auspices of East Tennessee State University Quillen-Dishner College of Medicine. You were recommended less than favorably by both hospitals and you were not permitted to return for a second year of residency training by the College of Medicine. Your poor performance in your only year of medical training evidences your inability to practice medicine with reasonable skill and safety. See, Sections 458.301 and 458.331(4), Florida Statutes (1988). There are material discrepancies between answers and information provided in your 3 different applications and supporting documents submitted to the Board; and you have provided fraudulent information and misrepresented or concealed information regarding your medical education. See Subsections 458.311(1)(c) and 458.331(1)(a) and (hh), Florida Statutes (1988). Inconsistencies in the Application There are several discrepancies between Petitioner's 1983 Florida Application, her 1984 Application, and her 1988 Filing. On the 1984 Application, Petitioner reported her participation in the Unsanctioned Rotation at Sharp Memorial Hospital from December 20, 1980 to January 10, 1981 as part of her clinical clerkships. The Unsanctioned Rotation is not listed on the 1988 Filing. Petitioner contends that it was not until after submission of the 1984 Application that she found out that CONES refused to recognize the clerkships taken in 1980 because Petitioner was not enrolled as a student at CETEC at the time. Therefore, Petitioner deleted those unapproved clerkship weeks from the 1988 Filing. However, while specific reference to the clerkship was deleted in 1988, Petitioner admitted at the hearing that she counted the Unsanctioned Rotation as part of sixty (60) weeks of clerkships claimed in the 1988 Filing. The 1988 Filing states Petitioner completed sixty (60) weeks of clinical clerkships as part of her medical education at CETEC. However, as discussed in Findings of Fact 13 through 18, Petitioner's submitted a CONES verification of clinical rotations that only details fifty six (56) weeks (including duplicate and overlapping credit) of clinical clerkships. In the 1988 Filing, Petitioner did report the actions taken against her medical licenses in Georgia and New Mexico and mentioned her problems obtaining licensure in California. On the 1984 Application, Petitioner responded to the question "Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct?" by stating "after my voluntary surrender, notice of hearing in Georgia, [sic] charging denial and Flafalse documents re licensure (both false)." Both the Notice of Hearing and the Voluntary Surrender in Georgia were issued prior to the completion of Petitioner's 1984 Florida Application. Thus, while Petitioner did disclose the voluntary surrender, she only provided a brief and somewhat misleading explaination. The 1984 Application does not mention Petitioner's application in South Carolina (which was returned without action) nor does it discuss Petitioner's licensure difficulties in California other than to say she had been denied a license because of "informal deficiencies." The 1984 Application also omits Petitioner's licensure problems in New Mexico which is understandable since the Notice of Contemplated Action in that case was not filed until January, 1985. The application form requires the applicant to list all universities or colleges where the applicant "took classes/received training." Petitioner listed her training at the University of Kansas, Wesley Medical Center under the medical education section of her 1984 Application. In the 1984 application, she refers to it as a "externship". That position is also listed in the medical education section of the 1988 Filing with an explanation indicating that she was not actually a resident. As discussed in Findings of Fact 30, her position at the Wesley Medical Center is not easily described due to the unusual circumstances that led to her participating in the program. She was repeating clerkships in certain areas in accordance with the stipulation reached with the California licensing agency. Although Petitioner was not officially enrolled in classes or a residency program in that position, she considers it as part of her medical education and training and, therefore, listed it as such. In her 1984 Application, Petitioner listed time spent at Jackson Memorial Hospital (University of Miami) and Wesley Medical Center (Unversity of Kansas) on a sheet entitled graduate and post-graduate education. On her 1988 Filing, she listed both positions as post-graduate training. Both of these positions were actually house staff positions rather than part of the training programs of the affiliated medical schools. In the 1984 Application, Petitioner listed her dates of training at the Wesley Medical Center as October, 1984 to April 1985 (which was her projected completion date.) The 1984 Application was filled out and filed with the Board in December 1984, four months prior to the projected completion date of the Wesley position. In the 1988 Filing, Petitioner listed her actual completion date of March, 1985, which was approximately two weeks earlier than the projected completion date referred to in the 1984 Application. From January 1984 to August 1984, Petitioner worked for Spectrum Emergency Care in emergency rooms and free-standing clinics in Georgia. Petitioner listed different dates of service with Spectrum on the 1984 Application and the 1988 Filing. Petitioner contends the differences are due in part because the 1988 Filing included employment at Spectrum in New Mexico in December 1984 and January 1985 after submission of the 1984 Application. However, the 1988 Filing states that Petitioner was continuously employed by Spectrum from January 1984 - January 1985. In fact, she was not employed during the months of August, September, October and November, 1984. Moreover, her employment with Spectrum in New Mexico in December, 1984 and January, 1985 overlaps with her "externship" at the Wesley Medical Center/University of Kansas which took place from October, 1984 through March, 1985. Apparently, this overlap was possible because her work for Spectrum in December, 1984 consisted of one weekend and a holiday and in January, 1985 consisted of one weekend. In sum, the 1988 Filing significantly overstates her actual experience with Spectrum. The 1988 Filing contains several inconsistent statements regarding Petitioner's employment as a ship's physician. Under the practice/employment section of that Filing, she states she was a ship's physician for SeaEscape from April, 1985 to September, 1985 and a ship's physician for Commodore Cruise Lines from February, 1986 to September, 1986. Later in the application, under postgraduate medical training and work experience, she states she was a Chief Medical Officer for cruise ships from April, 1985, through September, 1986. However, according to the previously cited information, for at least a four month period during that time frame, she was not employed. In another portion of her application, Petitioner lists under clinical medicine that she worked on the two ships from April, 1985 through September, 1987. Even assuming that there is a typographical error and Petitioner meant September, 1986 as indicated in the other listings, by deleting any reference to the four months that she was not employed, an impression is created that Petitioner has more clinical experience than was actually true. There is a conflict between the AUC transcript that Petitioner submitted with the 1988 Filing and earlier versions of the transcript that appear in her records. The course titles are consistent in the transcripts, but the numbers of some of the courses are different. Only the last digit of the course numbers are different. Whether a course is listed in the 100 series, 200 series and 300 series is consistent in all of the transcripts. The series numbers reflect first semester, second semester and third semester courses respectively. The AUC transcript submitted with the 1988 Filing was the most recent one obtained by Petitioner from AUC. That transcript was prepared in June, 1986 and reflects a failing grade in the neurosciences course. However, as discussed in Finding of Fact 4, that grade was changed to a passing grade as reflected in a 1981 transcript from AUC which was submitted to CETEC when Petitioner transferred to that school. No adequate explanation has been given to explain why the 1986 AUC transcript is not consistent with the earlier one. Postal Investigation The confusing circumstances surrounding Petitioner's medical education are further complicated by her involvement with Pedro de Mesones. The circumstances surrounding her involvement with Pedro de Mesones have not been fully explained. While Pedro de Mesones' exact status or position is unclear, Petitioner believed him to be a representative of CETEC. He has subsequently been convicted of mail fraud in connection with selling medical diplomas and has been sentenced to a federal prison term. Between July, 1981 and January, 1982, while Petitioner was conducting her clinical rotations in San Diego, she attempted to get information and documentation from CETEC, but she had trouble getting responses to her repeated telephone calls, letters and telegrams. Petitioner sought the help of Pedro de Mesones in getting cooperation and/or responses from CETEC regarding transcripts and other documents necessary for the loan applications and residency applications which she had to file prior to her anticipated medical school graduation date of June, 1982. Another reason Petitioner hired Pedro de Mesones was to get confirmation that CETEC would give her credit towards her medical degree for her prior work on her Ph.D. at the University of Chicago. These credits were necessary for Petitioner to graduate in June of 1982 as she anticiapted. Petitioner was advised by others familiar with the school that Pedro de Mesones could help her in her dealings with CETEC. She first contacted Pedro de Mesones by telephone in February, 1982. She agreed to pay him a total of more than $8,000 for his services. Petitioner explains her payments to Pedro de Mesones as a $3000 fee, plus the next two (2) semester's tuition payments totaling an additional $5000.00 plus a $100.00 graduation fee. Pedro de Mesones advised Petitioner that she had to pay CETEC's tuition totalling $5,000 for two (2) additional semesters even though she did not have to take any classes at CETEC because she was given credit for her work at the University of Chicago. At one point during her dealings with Pedro de Mesones, Petitioner signed a false transcript from a Mexican medical school at Pedro de Mesones' request. This transcript reflected work which Petitioner never completed. No adequate explanation was given as to why these false transcripts were ever prepared. While Petitioner contends that she asked Pedro de Mesones not to use the false Mexican transcript for any purpose, it appears that these transcripts were prepared in the event that Petitioner could not secure two semesters credit from CETEC for her Ph.D. work at the University of Chicago. Ultimately, CETEC decided to give her credit for some of the Ph.D. course work she completed at the University of Chicago. As a result, Petitioner was able to graduate in June of 1982 from CETEC without having to use the false Mexican transcripts. It does not appear that the fraudulent Mexican transcript were ever used by Petitioner in any of her applications. Petitioner provided Pedro de Mesones with two false transcripts regarding her AUC medical education. It is clear that she intended for him to use those transcripts, if necessary, to get a dean's certification from CETEC. One of the false AUC transcripts she prepared made its way into the records of CETEC. It is not clear how CETEC obtained that transcript. Because Petitioner was given credit for her graduate work at the University of Chicago, she did not need the extra credits reflected on the false AUC transcripts. Petitioner subsequently wrote the Dean of CETEC requesting removal of the false AUC transcript after she saw it in her CETEC records during a visit to CETEC to obtain a letter from the Dean showing her to be in good standing. Petitioner asked Pedro de Mesones to provide her with letters signed by the CETEC Dean showing her to be in good standing and on track for graduation in June, 1982. She intended to use these letters in applying for licensure for residency programs. Petitioner felt that she was on track to graduate and indicated to Pedro de Mesones that because of time pressures, she felt it would be acceptable for him to forge the signature of the Dean on the letters required by the various state licensing agencies. However, there is no indication that he did so. While none of the false transcripts prepared by Petitioner were directly submitted by her in any of the applications for licensure filed with any state licensing authorities, it is clear the Dean's certification letters included in Petitioner's 1983 Applications in some of the states were false. See Findings of Fact 39-44. No direct connection has been drawn between the false Dean's certification letters submitted with Petitioner's applications in Georgia and California and Pedro de Mesones. However, the circumstances surrounding Petitioner's dealings with Pedro de Mesones raise a question as to how the certifications were obtained. More importantly, it is clear that Petitioner was aware that the representations contained in the Dean's certifications and the dates of attendance at medical school listed on her 1983 Applications were false. Nevertheless, she still submitted the applications. Petitioner's dealings with Pedro de Mesones ended on June 14, 1982, two days after her graduation ceremonies at CETEC. Practice Experience Petitioner has at various times practiced medicine in Georgia and New Mexico prior to surrendering or losing her license in those states. She has also worked on cruise ships as a ship's doctor for several months. She is currently licensed and practicing in California. She has been licensed in that state since November, 1988. She has practiced emergency medicine at various hospitals and has been practicing as a primary care physician for Castle Air Force Base in California since December 1988. There is no indication that she has been deficient in carrying our her professional duties in any of these positions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order granting Petitioner's application for licensure as a physician in the State of Florida subject to a probationary period of two years upon such terms and conditions as the Board deems appropriate. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of July, 1990. J. STEPHEN MENTON 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 July, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 37, 46-50 and 67. 2. Aubored in substance in Findings of Fact 67 and 68. 3. Adopted in substance in Findings of Fact 69. 4. Adopted in substance in Findings of Fact 70. 5. Adopted in substance in Findings of Fact 71. 6. Adopted in substance in Findings of Fact 72. Adopted in substance in the preliminary statement. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2-4 and 6. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6. Suborindate to Findings of Fact 6 and 8. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11 and 33. Subordinate to Findings of Fact 87. Subordinate to Findings of Fact 87 and 88. Subordinate to Findings of Fact 88. Subordinate to Findings of Fact 89. Subordinate to Findings of Fact 90-94. The first sentence is rejected as constituting argument. The second sentence is subordinate to Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Adopted in substance in Findings of Fact 36. Subordinate to Findings of Fact 36 and 39- 42. Adopted in substance in Findings of Fact 45. The first sentence is adopted in Findings of Fact 87. The remainder is rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 47-66. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 51. Adopted in substance in Findings of Fact 49. Subordinate to Findings of Fact 54. Adopted in substance in Findings of Fact 55. Subordinate to Findings of Fact 57, 59-60. Subordinate to Findings of Fact 58. Suborindate to Findings of Fact 61. Adopted in substance in Findings of Fact 59. Subordinate to Findings of Fact 62-66. Subordinate to Findings of Fact 66. Subordinate to Findings of Fact 66. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 20-30. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 22 and 27. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 24. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 25-26. Adopted in substance in Findings of Fact 27. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. See proposed findings 26-30 above. Subordinate to Findings of Fact 79-80. Subordinate to Findings of Fact 81. Subordinate to Findings of Fact 82-83. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 83. Subordinate to Findings of Fact 77. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 84. Addressed in Findings of Fact 12-18. Rejected as irrelevant. Subordinate to Findings of Fact 12-19. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Subordinate to Findings of Fact 9 and 13. Subordinate to Findings of Fact 13 and 14. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 18. Subordinate to indings of Fact 35. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 44. Subordinate to Fndings of Fact 46-52 and 67- 68. Adopted in substance in Findings of Fact 69. Subordinate to Findings of Fact 78. Subordinate to Findings of 78. Subordinate to Findings of Fact 76. Adopted in substance in Findings of Fact 70. Subordinate to Findings of Fact 76, 77 and 78. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of 72. 26. Adopted in substance in the preliminary statement. 27. Adopted in substance in Findings of Fact 73. 28. Adopted in substance in Findings of Fact 73. 29. Adopted in substance in Findings of Fact 54. 30. Adopted in substance in Findings of Fact 56. 31. Adopted in substance in Findings of Fact 78. 32. Adopted in substance in Findings of Fact 63. 33. Adopted in substance in Findings of Fact 65. Subordinate to Findings of Fact 47-51. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 24-26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 31 and 79- 81. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 12 and 17. Adopted in substance in Findings of Fact 19. Subordinate to Findings of Fact 87-95. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 97. Subordinate to Findings of Fact 87-95. Rejected as not supported by competent substantial evidence. Adopted in substance in Findings of Fact 40. Rejected as not supported by competent substantial evidence. Subordinate to Findings of Fact 47-68. Rejected as constituting argument. Rejected as constituting argument. Copies furnished: Paul Watson Lambert, Esquire Attorney at Law 1355 Mahan Drive P. O. Box 31 Tallahassee, Florida 32308 Allen R. Grossman, Esquire Assistant Attorney General Suite 1602 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for resolution in this case is whether rule 59C-1.004(2)(i), constitutes an invalid exercise of delegated legislative authority as asserted by petitioners.
Findings Of Fact Petitioner, University Hospital, Ltd. (University), is a Florida limited partnership and is the licensee of University Hospital and University Pavilion Hospital. University Hospital is licensed as a general acute care hospital located at 7201 North University Drive, Tamarac, Florida. University Pavilion Hospital is licensed as a specialty psychiatric hospital located at 7425 North University Drive, Tamarac, Florida. In its capacity as the licensee of both University Hospital and University Pavilion Hospital, University submitted an application for a Certificate of Need (CON) to consolidate the licenses of the two hospitals. On January 5, 1994, the Agency for Health Care Administration (AHCA) issued a State Agency Action Report (SAAR) noticing its intent to deny University's application. A proceeding on the intended denial of the application is currently pending before DOAH as Case No. 94-1048. Petitioner, Winter Haven Hospital, Inc. (Winter Haven), owns and is licensed to operate a 579-bed acute care hospital located at 200 Avenue F N.E., Winter Haven, Florida; and a 40-bed acute care hospital located at 105 Arneson Avenue, Auburndale, Florida. Winter Haven submitted an application for a CON to consolidate the licenses of these two existing health care facilities. On September 7, 1993, AHCA issued a SAAR denying Winter Haven Hospital, Inc.'s application. Florida Hospital Association, Inc. (FHA), is a not-for-profit voluntary association of Florida hospitals. AHCA promulgated and administers rule 59C-1.004(2)(i), F.A.C. (the challenged rule), and is the state agency charged with the duty and responsibility of administering chapters 395 and 408, F.S. Rule 59C-1.004(2)(i), F.A.C. provides that projects subject to expedited CON review (as opposed to batched review) by AHCA include: Consolidation of the licenses of two existing health care facilities pursua subsection 395.003(1)(d), F.S., both of have the same license and are the same licensee of licensed health care faci provided that the consolidation doe result in a change in licensed bed cap at either of the premises. It is undisputed that the "law implemented" by the challenged rule is section 408.036(1)(e), F.S. Section 408.036(1) makes reviewable and requires a CON application for "all health-care-related projects, as described in paragraphs (a)-(n)." Subparagraph (e) refers to "any change in licensed bed capacity." The challenged rule specifically provides that it applies to consolidation of licenses of two existing health care facilities pursuant to subsection 395.003(1)(d), F.S. There is no subsection 395.003(1)(d), F.S. This is clearly a scrivener's error, and the reference should be to subsection 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 license 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 provisions of this party. (Emphasis supplied.) No other provision of section 395.003, or of chapter 395, addresses issuance of a single license for facilities on separate premises. The rule adopted to implement subsection 395.003(2)(d) is rule 59A- 3.153(10), F.A.C., which provides as follows: When the applicant and hospital are in compliance with chapter 395, F.S., Part I and rules 59A-3.077 - 3.093 and 59A-3.151 - 3.176, and have received all approvals required by law, the department shall issue a license. The department shall, at the request of a licensee, issue a single license to a licensee for facilities located on separate premises. When a licensee requests a single license, the licensee shall be responsible for receipt of information, payment of fees, service of process, and all other activities necessary for the department to carry out the provisions of chapter 395, F.S., Part I and rules 59A-3.151 - 59A-3.192 and 59A-3.100 - 59A-3.111. The evidence presented at hearing included 17 SAARs issued by AHCA since December 1990, concerning license consolidation applications. All such applications were approved by the agency until the September 1993 denial of Winter Haven's application. In December 1993, two other applicants were denied: University, and Charter Glade Hospital. In each instance in which a single license has actually been granted to a licensee owning more than one license, the single license does not increase beds or bed capacity at any facility, but instead breaks down the number of beds at each of the premises. (See, Exh. 6, consolidated licenses attached to CON files 6740, 7047, 7065, 7303, 7311, 7395 and 7401.) Also shown on the license is the premises designated in compliance with the subsection 395.003(2)(d) requirement that the licensee show which facility is responsible for receipt of information, payment of fees, and related matters. At hearing, the AHCA's representative, Elizabeth Dudek, asserted that there are two kinds of license consolidations for premises owned by the same licensee, the kind under section 395.003, F.S., and something else. However, this assertion was not supported by reference to any other provision of law which expressly addresses licenses, and no such reference has been found. Further, Ms. Dudek admitted that section 395.003 was the only reference they had when the rule was promulgated. (transcript, p. 67) Ms. Dudek further testified several times at hearing that the challenged rule's reference to section 395.003 was a mistake. The CONs for license consolidation which the AHCA has previously issued result in single licenses as set forth in section 395.003, and rule 59A- 3.153(10). There is no change in licensed bed capacity as a result of the consolidation of licenses. The licensee owns two facilities before obtaining license consolidation, with one total number of beds. After consolidation, the same licensee owns the same premises with the same total licensed beds. The licensee has the same number of licensed beds both before and after license consolidation. No additional beds or "capacity" result. In its SAARs on CON applications to obtain single licenses, AHCA's statements indicate there would be no change in beds or services as a result of license consolidation. See, e.g., Exhibit 6; CON 7310, SAAR p. 1, para. B.: "As a result of the proposed consolidation, each hospital will continue to operate as two separate hospital locations under a single license"; CON 7395, p. 1, para. B, "As a result of the proposed consolidation, each hospital will continue to operate as two separate hospital locations under a single license." If there were to be any changes in services or location of beds "these issues will require another separate certificate of need review . . . ." (Emphasis supplied); CON #7399, p. 1., para. B: "This request does not involve any change to the services nor beds at either hospital"; CON #7401, p. 1, para. B: "This request does not involve any construction costs, nor any change to the licensed bed capacity nor services presently being provided at these hospital." (Emphasis supplied) CON #7440, p. 2, para. 1b(2), "The proposed project is not for new beds." The language in these SAARs appears after supervisory review by the agency's highest decision makers on the applications, Alberta Granger and Elizabeth Dudek. At hearing, Ms. Dudek attempted to explain how bed capacity could change when a licensee still has the same number of beds after consolidation: HEARING OFFICER: You argue then that the sum is greater than the--the whole is greater than the sum of its parts? THE WITNESS: Not to the extent that you have--you still have the same number of total beds. You still have the same services. However, how they show up is different. They don't show up as 100 of yours and 100 of mine. It will end up being 200 of yours but still at our separate premises. And I think that that is different because what you have in total has changed. [T. 86-87] As the agency acknowledged, if an applicant requested approval for additional bed capacity at either of its premises, the applicant would not be entitled to proceed under the challenged rule. The text of the rule reflects this. AHCA's only claim to CON review jurisdiction for license consolidations is pursuant to its authority to review "health-care-related projects" which involve "any change in licensed bed capacity," section 408.036(1)(e), F.S. However, there is no factual basis nor logical basis to support the agency's assertion of the existence of a change in licensed bed capacity, and the rule precludes a change in capacity. AHCA construes "licensed bed capacity" to mean the number of licensed beds. A consolidated license is a new license certificate, and not the same license number as either of the licensee's prior separate licenses. Facilities covered by a single license cannot exchange beds or services because they are tied to separate premises, and transfer of beds or services requires separate CON review. Consolidation of licenses, since it does not change the number of beds at any facility, would not change the number of beds in the bed need inventory for a planning district and would not result in increased bed capacity in a district or subdistrict. Consolidation of licenses is not addressed in the state health plan or in local health plans. The consolidation of licenses of existing hospitals held by the same licensee in the same agency district, with no new beds or services at either premises does not result in a new health care facility or new health service or a new hospice, and does not involve the conversion or expansion or significant modification of a health care facility, health service or hospice. The agency interprets consolidations pursuant to section 395.003, F.S. to not require any CON review. Section 408.036(1)(e), F.S. requiring CON review for any change in licensed bed capacity is the provision under which the agency asserts that it reviewed consolidations prior to adoption of the challenged rule. Ms. Dudek's opinion is that the challenged rule is necessary to effectively implement the CON statute because the rule allows the agency to review those applications on an expedited rather than batched basis. It also allows the agency to determine whether statutory CON review criteria are met as to any impacts on quality of care, Medicaid, and costs. As a result of a license consolidation, it is possible that the filing of certain reports and data could be done differently and it is possible that Medicaid reimbursement would be available for patients in a facility formerly ineligible for such reimbursement as a specialty hospital.
