Findings Of Fact At all times material to this proceeding, Respondent was licensed to practice medicine in the State of Florida, with license number 0017339. On October 25, 1979 the Commission on Medical Discipline of Maryland, licensing authority for the State of Maryland, revoked Stanley Radvan- Ziemnowicz's (Ziemnowicz) license to practice medicine in the State of Maryland. On August 18, 1981 the commission on Medical Discipline of Maryland denied Ziemnowicz's petition for reinstatement from its order of revocation dated October 25, 1979. On January 3, 1984, the Commission on Medical Discipline of Maryland granted Ziemnowicz a stay of its order dated October 25, 1979 revoking his license to practice medicine in the State of Maryland and placed him on probation. On April 29, 1986 the Commission on Medical Discipline of Maryland entered an order withdrawing the stay of its order dated October 25, 1979 entered on January 3, 1984 and again revoked Ziemnowicz's license to practice medicine in the State of Maryland. Stanley Radvan-Ziemnowicz whose license to practice medicine in Maryland was revoked on April 29, 1986 is the same Stanley Radvan-Ziemnowicz who is the Respondent in this Respondent's license to practice medicine in the State of Maryland has not been reinstated since the entry of the Order by the Commission on Medical Discipline of Maryland, dated April 29, 1986, and Respondent's license to practice medicine in the State of Maryland is currently revoked.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, and there being no mitigating circumstances presented by the Respondent, it is RECOMMENDED that the Board enter a Final Order revoking Respondent's license to practice medicine in the State of Florida. Case No. 87-3183 Respectfully submitted and entered this 4th day of December, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of December, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-3183 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding or Fact 1. Adopted in Finding of Fact 2. Rejected as not supported by the evidence in the record in that the order of the Commission of August 18, 1981 denied Respondent's reinstatements to practice medicine. Rejected as not supported by the evidence in the record in that it was the Order of January 3, 1984, that entered the stay and placed the Respondent on probation. Adopted in Findings of Fact 5 and 6. 6.-7 Adopted in Finding of Fact 7. Rulings on Proposed Findings of Fact Submitted by the Respondent The Respondent did not submit any Proposed Findings of Fact or Conclusions of Law. COPIES FURNISHED: Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Stanley Radvan-Ziemnowicz, M.D. 9400 Old Georgetown Road Bethesda, Maryland 20014 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medicine 130 N. Monroe St. Tallahassee, Florida 32399-0750
The Issue By means of two consolidated rule challenge petitions, Petitioner seeks determinations that a specified agency policy and practice is an agency statement which is an invalid unpromulgated rule and that certain specified existing agency rules are invalid for other reasons. In view of the number of and the nature of the issues in these two cases, it is perhaps easiest to describe the issues in each of these cases in the words chosen by Petitioner. The petition in Case No. 04-4398RU describes the issues as follows: Whether Florida Board of Medicine's uniform "nod an wink" nonrule policy and practice of uniform licensure denial to anyone on probation is: (i) an "Agency Statement of general applicability that implements, interprets, or prescribes law or policy;" (ii) and "Agency Statement," defined as a "Rule;" (iii) "Rule," unpromulgated by mandatory and compulsory rulemaking procedures; and (iv) an invalid exercise of delegated legislative authority in violation of § 120.54(1)(a), Fla. Stat. (2003), as defined in § 120.52 Fla. Stat. (2003) and within the meaning of § 120.57(1)(e)? Whether the Board's failure to provide notice to prospective applicants of its unpromulgated rule policy and practice of uniform licensure denial to anyone on probation is [a] violation of due process requirements of United States and Florida Constitutions and of § 120,57(1)(e)(2)(e), Fla. Stat. (2003)? Whether Florida Board of Medicine's final Administrative Order, Order No. DOH- 04-0662-FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Temporary Certificate to practice in Areas of Critical Need -- an Agency action based on an unpromulgated rule -- is null and void, pursuant to §120.56(4)(d), 120.56(4)(e)(5) and 120.57(1)(e), Fla. Stat. (2003)? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(4), Fla. Stat. (2003)? (Emphasis in original.) The petition in Case No. 04-4571RX describes the issues as follows: Whether all the relevant provisions of Rule 64B8-8.001 F.A.C. that punish or sanction Applicants in whole or in part -- as promulgated in Rules 64B8-8.001(1); 64B8- 8.001(2); and 64B8-8.001(2)(b) F.A.C. -- are an invalid exercise of delegated legislative authority in violation of § 120.536(1), Fla Stat. (2000), as defined in § 120.52(8), Fla. Stat. (2003)? Whether the Board's Final Administrative Order, Order No. DOH-04-0662- FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Licensure -- an Agency action based on an invalidated rule - - is null and void? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(3), Fla. Stat. (2003)?
Findings Of Fact Findings incorporated from findings of fact in Case No. 03-4433 Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. (Emphasis added.) The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need be DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.3 Findings based on testimony in Case No. 03-4433 All applications for licensure submitted by physicians licensed in other states are reviewed on their merits by the Florida Board of Medicine. Notwithstanding the Board's long history of denying such applications when the applicant's license in another state is on probation, it is nevertheless possible that the Board might in the future grant an application by a physician whose license is on probation. Because such a possibility exists, the Board does not advise prospective applicants that their applications will be denied if their license in another state is on probation. Facts about the existing rules The existing rule provisions challenged in Case No. 04-4571RX are all portions of Florida Administrative Code Rule 64B8-8.001. That rule contains the disciplinary guidelines regarding physicians regulated under Chapter 458, Florida Statutes. (Unless otherwise noted, all references to the Florida Statutes are to the current version of those statutes.) Subsection (1) and the introductory portion of subsection (2) of that rule read as follows: 64B8-8.001 Disciplinary Guidelines. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. Following the language quoted immediately above, the subject rule describes all of the statutory violations for which discipline may be imposed and for each such violation describes minimum and maximum recommended penalties. With regard to the violation described as "(b) Action taken against license by another jurisdiction," the subject rule provides the following recommendation for a first offense: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00. And for a second offense of the same type, the recommended penalty is stated as follows: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to revocation or denial of the license, and an administrative fine ranging from $5,000.00 to $10,000.00. Facts about disposition of Petitioner's application In the conclusions of law in the Recommended Order in Case No. 03-4433, the undersigned concluded that . . . on the facts in this case, the Board of Medicine clearly has the authority and the discretion to deny the application for the specific reasons stated in the Board's notice of intent to deny, to-wit: "The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction." But it is equally clear that there is nothing in the applicable rules or statutes that mandates denial of the application. The Board of Medicine can lawfully resolve this matter either way. The ultimate recommendation in that Recommended Order was that "a Final Order be issued . . . granting Petitioner's application for a temporary certificate to practice medicine in communities in Florida where there is a critical need for physicians." On June 18, 2004, the Board of Medicine filed a Final Order in Case No. 03-4433 in which it disagreed with the recommendation described above and, based on Petitioner's violation of Section 458.331(1)(b), Florida Statutes, and on "several aggravating factors and policy considerations" described in the Final Order, denied the application for a temporary certificate to practice in an area of critical need. Petitioner sought appellate court review of the Final Order of June 18, 2004. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion. See A. Alexander Jacoby, M.D. v. Florida Board of Medicine, 900 So. 2d 559 (Fla. 1st DCA 2005).
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Michael A. Fuentes, M.D., a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0044461. Respondent's last known address is 311 Akron Avenue, Pittsburgh, Pennsylvania 15216. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes. The Pennsylvania State Board of Medicine is the licensing authority for the State of Pennsylvania. The Connecticut Board of Medicine is the disciplining body for the State of Connecticut. On or about July 27, 1994, the Pennsylvania State Board of Medicine indefinitely suspended Respondent’s license to practice medicine and then stayed that suspension while placing Respondent on five year's probation. The Board found Respondent to be an impaired physician who had been non-compliant with treatment recommendations. On or about August 26, 1996, the Pennsylvania State Board of Medicine, reviewed its earlier decision and shortened the probationary period to three years. Respondent did not report the Pennsylvania State Board of Medicine’s action in either instance to Petitioner’s representatives in the State of Florida. On October 19, 1993, the Connecticut Board of Medicine summarily suspended Respondent’s license to practice medicine due to his mental impairment and failure to undergo a complete psychiatric evaluation. Subsequently, on or about June 20, 1995, the Board revoked Respondent’s license to practice medicine in Connecticut. Respondent did not report the Connecticut State Board of Medicine's action in either instance to Petitioner's representatives in the State of Florida. Respondent is guilty of having action taken against his license to practice medicine by the licensing authorities of the State of Pennsylvania and the State of Connecticut, violations of Section 458.331(1)(b), Florida Statutes. Additionally, Respondent did not notify the Florida Board of Medicine within 30 days of the license disciplinary actions taken by either the State of Pennsylvania or the State of Connecticut against his license, notifications required by Section 458.331(1)(kk), Florida Statutes.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the charges set forth in the Administrative Complaint and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 22nd day of September, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1997. COPIES FURNISHED: Carol Lanfri, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Stephen M. Chizmadia, Esquire 125 Sun Dance Road Stamford, Connecticut 06905 Michael A. Fuentes 32 Lake Drive Darien, Connecticut 06820 Michael A. Fuentes c/o The Royal Inn Route 219, Boot Jack Summit Ridgway, Pennsylvania 15853 Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the administrative complaint and, if so, what, if any, disciplinary action should be taken against Respondent's license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed physician in the state, holding license number ME 0028480. A Final Order was filed against Respondent in Department of Professional Regulation v. Roger Lopez, M.D., Department of Professional Regulation Case No. 0070692 on August 26, 1988. The Final Order was entered in accordance with the terms of a stipulation executed by Petitioner and Respondent. Respondent's license was suspended for six months, and Respondent was placed on probation from March 5, 1989, through March 4, 1994. Respondent was properly served a copy of the Final Order. Respondent was required by the terms of the Final Order to practice under the direct supervision of a physician approved by the Board of Medicine (the "Board") and to appear before the Probation Committee whenever requested to do so. Respondent violated the terms of the Final Order by failing to appear before the Probation Committee and by failing to name a monitoring physician to supervise him during his probation. By letter dated August 29, 1989, Respondent was requested by the Board to appear before the Probation Committee at its regularly scheduled meeting on September 20, 1989, and to submit a curriculum vitae for a proposed supervising physician. Respondent acknowledged the Board's request in a letter to Petitioner dated August 31, 1989. Respondent failed to appear before the Probation Committee and failed to designate a monitoring physician.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent guilty of the allegations in the Administrative Complaint, issuing a reprimand, imposing an administrative fine in the amount of $5,000, suspending Respondent's license until March 4, 1994, and requiring Respondent to demonstrate to the Board no later than March 4, 1994, his ability to practice medicine with the skill and safety required under applicable statutes and rules. DONE and ENTERED this 23rd day of October 1991, in Tallahassee, Leon County, Florida DANIEL MANRY 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 23rd day of October, 1991.
The Issue The issue to be determined is whether Respondent has violated section 458.331(1)(b), (kk), and (nn), Florida Statutes (2011), as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Respondent is a medical doctor licensed in the State of Florida, having been issued license number ME 89113. Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is also licensed as a medical doctor in the State of New Jersey. The Department of Law and Public Safety, Division of Consumer Affairs, New Jersey Board of Medical Examiners (New Jersey Board) is the licensing authority regulating the practice of medicine in the State of New Jersey. On or about February 21, 2012, the New Jersey Board entered an Order of Automatic Suspension of Respondent’s New Jersey medical license. The basis for the Order was Respondent’s purported failure to comply with a Private Letter Agreement previously entered between Respondent and the New Jersey Board, in that she allegedly failed to undergo an independent psychiatric evaluation and failed to provide required psychiatric reports to the state’s Physician Assistance Program (PAP).2/ The action by the New Jersey Board constitutes action against Respondent’s medical license by the licensing authority of another jurisdiction. Respondent did not report the action against her New Jersey license to the Florida Board of Medicine on or before March 23, 2012, or within 30 days of the action against her license. When documents are received by the Department, they are imaged into the Department’s system. Mail for the licensing unit is picked up several times a day, and all documents are indexed by the licensee’s license number. A licensee can check to see if documents are received by contacting the Department by telephone or e-mail. As of the week before the hearing, no information regarding Dr. Ackerman had been received by the Department from Dr. Ackerman. Respondent claims that she notified the Board by both United States Mail and by certified mail of the action against her New Jersey license. A copy of the letter she claims to have sent is Respondent’s Exhibit 1. This letter is dated March 2, 2012, is not signed, does not contain her license number in Florida or New Jersey, and is addressed to “Florida License Board.” The document does not include an address beyond Tallahassee, Florida. No zip code is included. Dr. Ackerman could not say whether she had a receipt for the certified mail, only that she probably “had it somewhere.” She could not identify who, if anyone, signed for it. When asked for the address where she mailed the letter, Dr. Ackerman said, after a considerable pause, 452 Bald Cypress Way, and claimed she knew that address “off the top of her head.”3/ The copy admitted into evidence only reflects a faxed date of March 22, 2014, two days before the hearing.4/ By contrast, Board staff testified credibly as to the process for logging mail at the Department, and that no notification had been received from Dr. Ackerman. While staff acknowledged that it is “possible” for mail to come to the Department and not be routed appropriately, the more persuasive evidence in this case is that the Board staff received nothing from Dr. Ackerman. Respondent’s claim that both copies of her letter somehow slipped through the cracks is simply not believable. Moreover, Dr. Ackerman is a physician. As such, she is presumed to be a relatively intelligent person, capable of providing appropriate notification to the Board. The docket and evidentiary record in this case demonstrate that when she wants to get a message across, she is capable of doing so (and equally capable of avoiding answering a direct question if it is not to her advantage). Her claim that she notified the Board of the action against her license in New Jersey is not credible, and is rejected. Dr. Ackerman also did not update her practitioner profile. Practitioner profiles can be updated by faxing the updated information, using the fax number available on-line; by mailing the information to the Department; or by logging into the practitioner profile database using the licensee’s specific log- in ID and password. Dr. Ackerman did none of those.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent has violated section 458.331(1)(b), (kk), and (nn). In addition, it is recommended that the Board impose the following penalty: a reprimand of Respondent’s license to practice medicine; an administrative fine of $5,000; suspension of Respondent’s license to practice medicine until such time as Respondent demonstrates that her license in New Jersey has been reinstated and demonstrates the ability to practice medicine with reasonable skill and safety; and reservation of jurisdiction by the Board to impose a period of probation should Respondent successfully petition the Board for reinstatement and demonstrate compliance with the terms described in recommendation three. DONE AND ENTERED this 15th day of May, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2014.
