Findings Of Fact At all times material hereto, Respondent Jorge Macedo, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in 1954, and practiced in Brazil for one year thereafter. He then came to the United States, where he has practiced from 1956 until the present date. On February 13, 1976, Maury Braga came to Respondent's office in Hialeah, Florida. Respondent had never before met Braga and had never heard of him. Braga advised Respondent that he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: I, Jorge Macedo, M. D., of 1060 E. 4th Ave., Hialeah, Florida, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Falcudade de Ciencias Medicas de Santos and did lawfully practice the pro- fession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977. No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee7 Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NO. 82-114 JORGE MACEDO, M.D. License Number: 10095 Respondent. /
The Issue The issues in this case are whether Petitioner has provided clear and convincing evidence of rehabilitation from her disqualifying offense; and, if so, whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification from employment as a Medicaid provider.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons such as Medicaid recipients and the Medicaid program, and in that capacity, it maintains discretion to approve or deny requests for exemption. Petitioner is a licensed advanced practice registered nurse (“APRN”) and a certified nurse midwife who provided obstetric and gynecological care to Medicaid patients in Broward County, Florida, until she was disqualified from the Medicaid program. Petitioner is seeking to continue to provide obstetric and gynecological care to Medicaid recipients. She has a passion for working with obstetric Medicaid patients and wants to provide them the same opportunity for care as non-Medicaid patients. AHCA’S ACTION Petitioner applied for re-enrollment in the Medicaid program. After completing Petitioner's background screening, Petitioner's May 22, 2018, disqualifying felony criminal arrest and charge of larceny was identified. On February 4, 2019, by letter, AHCA informed Petitioner that the May 22, 2018, larceny offense disqualified her from working for a Medicaid healthcare provider, but that she could apply for an exemption. Petitioner self-reported her May 22, 2018, arrest to the Department of Health. On April 4, 2019, by letter, the Department of Health closed Petitioner’s case after an investigation without taking any disciplinary action against Petitioner’s license for the arrest. On July 31, 2019, Petitioner applied to AHCA for a Medicaid exemption. On October 15, 2019, AHCA closed Petitioner’s July application after Respondent determined the application was incomplete. That same month, Petitioner resubmitted the request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). EXEMPTION PACKAGE In Petitioner's exemption package, she listed her work history, which included the following employment: OB Hospitalist Group, from October 2017 to May 2019; First Class OBGYN, from June 2018 to present; Unified Medical Group, from October 2015 to October 2017; and Global OBGYN, from January 2013 to August 2018. Petitioner completed the education and training section of her exemption package by providing the answers that she had a master’s degree, completed training to become an APRN and a certified nurse midwife at Frontier University from 2009 to 2011, and provided her license number APRN 09190212. Petitioner also included a signed letter detailing her December 7, 2004, charge of permitting an unauthorized person to drive from Columbia County, Florida. She explained in the letter that she was charged after her brother drove her car while she was at work and had a fatal head on collision that claimed both his life and the other driver’s. In Petitioner’s exemption package, she included court records and dispositions for the following three criminal offenses: a 2004 misdemeanor, permit unauthorized person to drive, offense for which she successfully completed the six months’ probation after she paid her fines; a 2018 third- degree grand theft charge that was reduced to a misdemeanor petit theft when Petitioner pled to the offense; and a 2018 municipal ordinance petit theft charge that was dismissed. Petitioner also submitted letters of reference to support her application. The first letter dated August 23, 2019, was from Dr. Mitchell Spero (“Dr. Spero”), Petitioner’s treating psychologist. Dr. Spero stated in his letter that Petitioner had suffered traumatic events, she attended 27 individual psychotherapy sessions with him since June 18, 2019, and Garcia would not “ever again steal or demonstrate any negative behaviors worthy of any legal involvement.” The other letters supporting Petitioner’s application summarized how well-respected and knowledgeable Petitioner is in the profession as an APRN. Syed Rodriguez’s letter outlined how she has known Petitioner for over ten years, as Petitioner served as her preceptor. In her letter, she acknowledged Petitioner’s mistakes, but stated that the “medical profession needs more caring individuals like her” and that, “if given the opportunity, she can prove only excellence.” Another letter included in the exemption package was from Deline Somoza who grew up with Petitioner and referred to her as an amazing friend, mother, doctor, daughter, and, best of all, caretaker of anyone in need. Christina Kopingon, who worked with Petitioner for three years, stated in her letter in the exemption package that Petitioner “was an asset to our team and exhibited all the qualities necessary to safely and competently perform her role as a hospitalist certified nurse midwife.” The fifth letter Petitioner included in her exemption package was from Angela Melendez, who detailed how she worked with Petitioner for four years. She described Petitioner as knowledgeable, provides excellent patient care, skillful, and someone who she would trust “with my children as well as my own life.” TELEPHONIC EXEMPTION HEARING On December 18, 2019, as part of the exemption application process, Petitioner participated in an approximately 33-minute telephonic exemption hearing (“interview”) with Kelley Goff (“Goff”), a health services and facilities consultant at AHCA in the Background Screening Unit. During the interview, Garcia was honest about all her encounters with the law. Petitioner even offered to discuss her case that was expunged1 but Goff stopped Garcia and told her she did not have to because AHCA did not consider expunged cases, only sealed cases. In the interview, Petitioner explained the three criminal offenses Goff questioned her about. Garcia explained that the December 7, 2004, incident was when her brother took her vehicle while she was at work and had an accident that killed both him and the person in the other car he hit. Petitioner told Goff that because the vehicle was registered in her name, she was charged with permitting an unauthorized person to drive. She disposed of the case after going to court, and, under the advisement of a public defender, she accepted a plea to probation. Petitioner also admitted to Goff during the interview that she committed the larceny case on May 22, 2018. Petitioner explained to Goff 1 At hearing and in its proposed recommended order, AHCA asserts that Petitioner opened the door to explore Petitioner’s expungement case. The undersigned is not persuaded by AHCA’s position. During Petitioner’s interview, Goff specifically stopped Petitioner from discussing expungement and informed Petitioner that AHCA would not be considering any expungement in her case. Hence, expungement is a nonissue in this matter to which the undersigned cannot deliberate. that the case came about when she confessed that she had previously stolen scallops, steak, two laptops, and a raincoat when apprehended at Costco for stealing clothing on May 19, 2018, and that is how Costco was able to charge her with both cases. Petitioner told Goff that the disposition of the cases included the municipal ordinance case being dismissed and she pled to the larceny case that was amended to petit theft with one year’s probation and restitution of $1,198.00, which she paid back, and her probation was terminated early. During the interview, Petitioner also showed remorse and explained to Goff three separate times that she had made poor decisions to steal and that, obviously, there was no excuse for her actions. She told Goff she was very disgusted with her decisions. Petitioner described how she had a patient that died in her arms, which killed her soul and really hurt her, and she started making poor decisions and, unfortunately, stealing was one of them. Petitioner told Goff that she has been in counseling for it all and has learned how to deal with her stress now. Petitioner conveyed to Goff that seeing Dr. Spero has been an amazing help for her to understand how to deal with the trauma that has gone on in her life. Petitioner specified that in addition to her brother dying from the accident, and the patient dying in her arms, she had seven losses in ten years, including her mother who had died two and one-half years ago from suicide. She explained in the interview that she had never stopped going to counseling with Dr. Spero and was still currently in counseling because it “helps me.” Petitioner also told Goff how she had started a women’s support group, which focused on postpartum depression. She explained that the group meets on third Thursdays to discuss issues and listen, so the women will not feel alone. After the telephonic interview and discussion, AHCA denied Petitioner's request for an exemption by letter dated December 20, 2019. The letter provided the following grounds for the denial: [Agency] has considered the following factors including but not limited to: the circumstances surrounding the criminal incident for which an exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed; and found that you have not provided clear and convincing evidence of your rehabilitation as required by Florida Law. Although Heyn, AHCA’s unit manager for the Background Screening Unit, played no role in reviewing Petitioner’s application, the interview, recommending or making the decision to deny Petitioner’s exemption, Heyn signed the form denial letter and sent it to Garcia at the direction of AHCA’s secretary. AHCA’s secretary also did not make the decision to deny Petitioner’s exemption. Subsequently, on February 11, 2020, Petitioner requested an administrative hearing contesting her denial. HEARING At hearing, Dr. Laviniu Anghel (“Dr. Anghel”) testified that Petitioner has been employed with him as a mid-wife since 2016. He credibly explained that Petitioner is one of his best employees and that he had no concerns regarding her work performance. Dr. Anghel pointed out that Petitioner is even one of the most highly rated providers in his practice on social media. Dr. Anghel testified that he retained Petitioner at his office as an employee even though she is unable to treat Medicaid patients because of her disqualification. Dr. Anghel stated that Petitioner told him about her 2018 arrest, and he was surprised because he did not expect her to steal out of a store. He also testified Petitioner has access to all types of things with his two practices, but she has never stolen from him and he trusts her like a sister. Dr. Anghel further testified that Petitioner told him she regretted stealing. At hearing, Jeremy Kroll (“Kroll”), Petitioner’s criminal defense attorney, also testified. He explained that he initially represented her on the notice to appear case, but there was an ongoing investigation regarding Petitioner’s incident on May 7, 2018, and he ended up representing her on both cases. He explained that the notice to appear, Case 2018-1031M030A, was a municipal case brought by the Town of Davie, charging Petitioner with a misdemeanor of petit theft for stealing four pairs of shorts, two pairs of shoes, and some t-shirts from Costco, to which all the items were recovered. Kroll told how the Town of Davie’s prosecutor dropped the municipal case on July 16, 2018, after Petitioner successfully completed the terms of her pre- trial diversion program that required Petitioner to pay a $350.00 fine and continue ongoing treatment with Dr. Spero. Kroll also testified about Petitioner’s disqualifying offense case he handled. He affirmed Petitioner’s interview explanation with Goff, and Kroll testified that when Petitioner received the notice to appear for the municipal case, Costco went back through store footage from May 7, 2018, and discovered Petitioner stole two laptops. Petitioner was arrested and turned herself in on May 22, 2018, for the third-degree felony grand theft charge. Kroll confirmed Petitioner’s interview that Petitioner pled to a lesser offense of misdemeanor theft, was placed on 12 months of probation, paid the restitution for the two laptops, and continued her psychotherapy with Dr. Spero. Kroll testified that Petitioner immersed herself in therapy with Dr. Spero and received support from Erik Stuehrenberg (“Stuehrenberg”) and his wife. She was also remorseful from day one and took full responsibility for her actions. He described Garcia as having a “true desire to avoid any sort of future conduct even remotely close to [the thefts].” Kroll credibly acknowledged that significant trauma in Petitioner’s background played a role in her actions as she had explained in her interview. Kroll detailed some of the traumatic incidents, such as the accident where she broke 21 bones in her back, and had to learn to walk again, and her pregnancy loss in 2013 as a result of domestic violence. He further explained that he provided a letter to the prosecutor from Dr. Spero with Petitioner’s forensic evaluation. Kroll stated he believed that “the State Attorney’s Office, to their credit, recognized as sort of a trigger, she lost as part of her job as a midwife, she lost one of the mothers that delivered and then lost her own mother almost one after another” and that the theft was a cry for help. Kroll also testified, as Petitioner had explained to Goff in her interview, that “there was a period of time where Garcia was so committed to her patients and to her livelihood that she wasn’t as committed to keeping herself healthy as she should have, and I think she regained that balance as part of this whole process.” At hearing, Stuehrenberg, a Davie police officer, testified that he helped Petitioner through the criminal process after she told him about the 2018 theft. He testified that he was shocked by her arrest. However, Petitioner was remorseful, admitted she made a mistake, and asked for help. Stuehrenberg made clear that Petitioner noticed things were going on in her life that triggered her, and she took the necessary steps to address her problems. Stuehrenberg explained that he sent her to Dr. Spero to talk about the things going on in her life because he knew the doctor would help her sort things out since he was familiar with Dr. Spero’s capabilities, and since he had visited him on occasion for help. He also explained how he and his wife served as a support system to help Petitioner. Goff also testified at the hearing that she has no formal training processing applications but has processed numerous applications over the years that her supervisors had reviewed and approved. Goff explained that she was assigned Petitioner’s application and she follows the statutes and rules when processing an application. Goff also explained that an application starts the review process for an exemption. Goff testified about Petitioner’s interview and reviewed the limited handwritten notes she had taken from the 33-minute interview. Goff testified that the only thing in Petitioner’s background that might have concerned her is the 2018 arrest, but “it’s not up to me to make that decision.” She testified that Mary Mayhew, AHCA’s secretary, decides the exemptions. Goff also addressed her Exemption Decision Summary (“summary”) that she created after the interview and it became part of Petitioner’s application file that was forwarded for review when determining Petitioner’s exemption application. Goff testified that when addressing Petitioner’s criminal offenses, she summarized the three offenses. The summary contained errors, lacked details, and page 1 contained identical answers to the Exemption Decision Summary dated October 15, 2019, when Petitioner’s first case was closed.2 Goff admitted at hearing that she failed to specify on the summary that the 2004 arrest was neither a disqualifying offense nor that the May 19, 2018, municipal charge was dismissed. Goff also testified that she failed to note that Petitioner was currently employed, had healthcare training, or was licensed on page 1 of the summary, even though Petitioner had provided the correct information on her application regarding her employment with First Class OBGYN, training, and licensure status as a certified nurse midwife. At hearing, Dr. Spero testified about Petitioner’s care, diagnosis, and treatment. He credibly discussed Petitioner’s psychological evaluation.3 Dr. Spero explained that he began treating Petitioner on June 18, 2018. He acknowledged she had informed him about two thefts within a 12-day period in May 2018. Even though Dr. Spero could not remember specifically what 2 Resp.’s Ex. 2. 3 Pet.’s Ex. 11. was stolen, he testified that the other theft was “also from Costco involving two laptop computers.” Dr. Spero explained, as part of his psychology practice, he evaluates individuals to determine whether they have been rehabilitated. Dr. Spero testified that he performed a lot of psychological testing to gain insight and direction for Petitioner’s treatment. He determined she was depressed, anxious, had suffered post-traumatic stress disorder several times, and had emotional issues. Dr. Spero summarized some of Petitioner’s events that led to her trauma, including an abusive relationship and numerous losses including a brother, mother, grandmother, stepsister, best friend, and boyfriend. He also concluded that Petitioner’s level of stress exacerbated when she lost a patient because of an embolism and Petitioner’s actions of stealing during the 12-day period were isolated incidents of behavior, out of her character, based on triggered events. Dr. Spero testified that he tested Petitioner multiple times and she does not have a propensity to steal, but the level of stress of loss, including her mother, who committed suicide; grandmother; her stepsister, who overdosed; and the loss of a patient traumatized her and caused the behavior. Dr. Spero also credibly confirmed that Petitioner was still in treatment with him at the time of the hearing and he believes that she is “without any hesitation 100 percent rehabilitated” because he has taught her to deal with her trauma and stress. Petitioner also testified at hearing and explained that she worked at First Class OBGYN full time since 2018, and was a licensed healthcare worker, as she had put on her application. She explained that she had worked at Bethesda Memorial East, but stopped working there after she was disqualified from working with Medicaid patients. At hearing, Petitioner admitted getting caught leaving the Costco after she stole shorts, shirts, and shoes in May 2018, as she had told Goff during the interview. Petitioner credibly explained that while being questioned by the Costco employee that apprehended her, she confessed to also previously stealing laptops, scallops, steak, and a rain jacket, which she was later arrested for and charged with a felony. She testified that she was never charged for taking all the items like the scallops and steak and verified that she turned herself in on the felony charge and spent a night in jail, which she felt was eye awakening and not a “life that I could ever, ever want to live.” Petitioner credibly and persuasively explained that 2018 was a traumatic year for her after she lost her first patient. She testified about how she felt guilt about the patient’s death and grieved after her death. Petitioner conceded that she was not in a good place mentally after the death. Petitioner further testified that she contacted Stuehrenberg and told him what she had done, and he told her to go to Dr. Spero, a licensed professional, for help. Petitioner described how she started seeing Dr. Spero in June 2018 and was still having individual counseling with him as of the date of the hearing. Petitioner pays for each visit. She elaborated how Dr. Spero has helped her tremendously and she has been able to forgive herself, gotten better, and found methods to deal with stress. Petitioner also testified that she started a women’s postpartum depression group as she had discussed in her interview with Goff. She explained that women need someone to talk to and by her being in a domestic altercation when she was pregnant and losing her son at 15 weeks after being hurt badly, she understood the group’s needs and thought she could help them. She founded the women’s group to provide an outlet for release for women who might need it. Petitioner also credibly testified that she has volunteered for about five years with Power Buddies, an organization that helps disabled individuals compete in marathons by pushing them in strollers. She explained that she could relate to the kids because she was hit by a drunk driver and fractured 21 bones, had a head injury, and had to learn to walk again, so it is rewarding to her when she pushes the competitors over the finish line in their strollers. FINDINGS OF ULTIMATE FACT Upon careful consideration of the entire record, it is determined that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her misdemeanor disqualifying offense of petit theft and that she will not present a danger to the Medicaid patients with whom she would have contact with as a certified nurse midwife. Petitioner has shown that she is a responsible individual by successfully holding jobs in the healthcare field as a certified midwife handling prenatal visits, gynecological visits, labor, and postpartum care and treatment for more than seven years without incident, and as a nurse prior to that. All her employment has been in positions where she cared for patients, and no evidence was presented that Petitioner was a danger while doing so. Petitioner’s current supervisor, Dr. Anghel, corroborated Petitioner’s exemplary work record. Also, the compelling letters4 show, by all accounts, Petitioner is well-respected, knowledgeable, caring, the best caretaker, an asset, excellent, and skilled in her field. Petitioner was honest and forthright at hearing. Petitioner demonstrated by credible and compelling evidence that she had a traumatic ten years comprised of, among other events, the following: an accident where she had to learn to walk again; and seven close deaths, including her brother who died in a fatal car accident where Petitioner was charged with the offense, her mother who committed suicide, grandmother, stepsister who overdosed, and the death of her first patient, who died while in her care. Petitioner was not able to hold it together any longer after her first patient died in her arms in 2018, and Petitioner’s trauma caused her to function in an unhealthy mental state. 4 Resp.’s Ex. 7. Petitioner’s traumatic state triggered out-of-character behaviors, including stealing out of Costco twice during a 12-day period in May 2018. Those who knew Petitioner well, such as Stuehrenberg and Dr. Anghel, were shocked and surprised by Petitioner’s actions. Petitioner was immediately remorseful by her behavior and sought help from Dr. Spero in June 2018. Petitioner’s municipal ordinance case was dismissed, and her sole disqualifying offense of larceny was reduced to a misdemeanor petit theft after the prosecutor was provided Dr. Spero’s letter documenting Petitioner’s trauma. Petitioner successfully completed her 12-month probation early by paying restitution and complying with the terms. After evaluating Petitioner, Dr. Spero taught Petitioner how to deal with trauma and stress at the one-on-one counseling sessions. Even after Petitioner’s criminal case was over and prior to applying for an exemption, Petitioner continued to pay and voluntarily attend counseling with Dr. Spero because she recognized the benefits of the treatment. Petitioner has worked hard to address her issues and get her mental health together. Petitioner has complied with her psychological treatment, adhered to the recommendations of Dr. Spero, and continued to obtain psychotherapy through the date of the hearing, which comprised a period of over two years. Petitioner has demonstrated a genuine commitment to improving her life and that she has been rehabilitated. Additionally, Petitioner’s application package that was forwarded to the decision-maker to make a determination on her exemption request was not completely accurate. The summary contained errors and lacked complete details such as: Petitioner’s lengthy successful professional career in the healthcare field was left off page 1 of the summary, which states “No Employment History”; the summary failed to identify Petitioner’s sole disqualifying offense, a misdemeanor petit theft; lists the municipal charge on page 1 without indicating a dismissal disposition; page 2 of the summary fails to distinguish disqualifying and non-disqualifying offenses; and neither the permitting unauthorized person to drive offense nor the municipal ordinance offense are identified as non-disqualifying offenses. Petitioner is also active in her community with the women’s support group she founded and Power Buddies. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding, could find that Petitioner is not rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order granting Petitioner, Jennifer Garcia’s, request for an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 14th day of August, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 14th day of August, 2020. COPIES FURNISHED: Ginger Barry Boyd, Esquire Nelson Mullins Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 (eServed) Jamie B. Gelfman, Esquire Nelson Mullins Broad and Cassel 1 Financial Plaza, Suite 2700 Fort Lauderdale, Florida 33394 Susan Sapoznikoff, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent (Ex. 1). The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. _ The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent’s assisted living facility license is SURRENDERED. The Respondent agrees not to seek initial licensure nor operate any facility licensed by the Agency for a period of 5 years from the date of execution of this Agreement. 3. An administrative fine of $13,500.00 is imposed against the Respondent, but $13,000.00 of the fine is STAYED for purposes of collection as long as the Respondent does not seek any new type of licensure from the Agency. In the event Respondent seeks licensure after the period set forth above, the Respondent will pay the $13,000.00 before any application for licensure can be considered. 4. The Respondent shall pay the Agency $500.00. If full payment has been made, the cancelled check acts as receipt of payment. If full payment has not been made, payment is due within Filed July 8, 2013 11:00 AM Division of Administrative Hearings 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. The Petitioner is responsible for any refunds that may be due to any clients. 6. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 3 day of ane4 , 2013. dministration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct Sopot this Final Order was served on the below-named 3 day of wa , 2013. persons by the method designated on this Jan Mills Facilities Intake Unit (Electronic Mail) Richard Shoop, Agency Clen Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Theresa DeCanio, Field Office Manager Local Field Office Agency for Health Care Administration Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Suzanne Suarez Hurley Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Eva Tomines, Owner/Administrator Golden Haven, LLC d/b/a Golden Haven 10805 William and Mary Court Orlando, FL 32821 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 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.
The Issue Whether Sandra Ann Lindstrom (“Ms. Lindstrom” or “Respondent”), a licensed physician assistant, prescribed Lorcet, a medication containing a controlled substance (hydrocodone), in violation of the Florida Statutes and the Florida Administrative Code as charged in the Amended Administrative Complaint filed at the Department of Health in DOH Case No. 2006-36542 on October 27, 2014. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Department of Health is the state agency responsible for regulating the practice of physician assistants in the State of Florida. The regulation is pursuant to both chapter 456 (“Health Professions and Occupations, General Provisions”) and chapter 458 (“Medical Practice”), Florida Statutes. Respondent is licensed as a physician assistant by the Board of Medicine. Her license number is PA 9103823. The license was effective on August 3, 2006, with an expiration date of March 31, 2008. Her license has been continuously renewed since its effective date. See Pet’r’s Ex. A. Ms. Lindstrom is not licensed to practice medicine as a physician. Id. Physician Assistants Physician assistants are governed by section 458.347, a section within the chapter of the Florida Statutes that governs Medical Practice. Physician assistant licensure is provided for in section 458.347(7), and the Board of Medicine is authorized to “impose any of the penalties authorized under ss. 456.072 and 458.331(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter [Ch. 458] or chapter 456.” § 456.347(7)(g), Fla. Stat. A physician assistant’s supervisory physician may delegate authority to conduct aspects of medical practice to a physician assistant under circumstances expressed in the statutes. The limited medical practice that may be delegated to a physician assistant includes certain practices at county health departments. Whether conducting the delegated practice of medicine at a county health department, or not, physician assistants may be delegated authority to prescribe medications provided they are not listed on a formulary created pursuant to section 458.347(7)(f). See § 458.347(7)(d) and (e), Fla. Stat. The formulary must include “controlled substances as defined in chapter 893.” § 458.347(7)(f)1., Fla. Stat. In sum, physicians may not delegate to physician assistants the prescription of medications which are controlled substances as defined in chapter 893, Florida Statutes. The Department’s Investigative Office The Department has an investigative office charged with looking into regulatory complaints. In a typical regulatory investigation, the investigator discloses his identity to any party interviewed, whether the party is the source of the complaint, a witness, or, if amenable to an interview, the licensee who is the subject of the complaint. Aside from interviews, the investigations include record reviews, the obtaining of evidence, and the preparation of an investigative report. In addition to investigating complaints of regulatory violations by licensed health care practitioners, the investigative office looks into cases of unauthorized practice by unlicensed individuals. Investigations of unlicensed activity are conducted by what is known as the “ULA” section of the office. Commonly, ULA investigations are done by investigators who are “undercover,” that is, the investigators hide their identity as investigators and use pseudonyms rather than their actual names. Typically, undercover ULA investigators present at the offices of the subjects of investigation. If the unlicensed subject of the investigation offers to perform services that require a license or engages in practice that requires a license, the Department pursues remedies, including an order that the subject cease and desist from the unlawful, unlicensed activity. Investigations of a licensee for practicing outside the scope of the licensed activity may be viewed as something of a hybrid of a typical regulatory investigation and a ULA investigation. It is regulatory since the subject is a licensee, but it is usually done undercover in the same manner in which a ULA investigation is conducted. One such investigation was conducted by Ryan Heal, an employee of the Department between August and December of 2006. Mr. Heal conducted the investigation undercover using a pseudonym referred to in Department documents as “RJ.” RJ and the 2006 Investigation of JHS Mr. Heal has been a medical malpractice investigator for the Department since November 2000. During the course of his more than 15 years as a Department investigator, Mr. Heal has investigated both regulatory violations and unauthorized practice violations. In 2006, allegations reached the Department that prescriptions were being written at Jacksonville Health Systems (“JHS”), a clinic located on Baymeadows Road in Jacksonville, Florida, by a physician assistant without the supervision of a physician. In response, the Department launched an investigation. The investigation was conducted undercover by Mr. Heal using his pseudonym RJ. Commenced in August of 2006, the investigation lasted until the following December. August 10, 2006 On August 10, 2006, Mr. Heal, using his fictitious name, presented at JHS. A woman behind the counter in the reception area accepted a cash payment for the visit. She took RJ’s blood pressure and requested the name of the pharmacy for any medicine prescribed. To the best of Mr. Heal’s recollection, the receptionist recorded some of the information. After the interaction with staff in the reception room, Mr. Heal took a seat and waited to be called back to the examination room. Shortly thereafter, Ms. Lindstrom emerged and asked for RJ. Mr. Heal “stood up and went over to her.” Hr’g Tr. 19. Ms. Lindstrom identified herself by her first name and said, “I’m the provider here.” Id. Ms. Lindstrom accompanied Mr. Heal to the examination room where only she and Mr. Heal were present. After Mr. Heal complained of back pain, Ms. Lindstrom asked where in his back the pain was located and what caused it, but she did not conduct a physical examination. As Mr. Heal testified at hearing, “[t]here was no examination. She never touched my back. Never took vitals or anything.” Hr’g Tr. 20. Ms. Lindstrom suggested that Mr. Heal use a chair with lumbar support, try stretching, lose weight, and have an MRI. Ms. Lindstrom then stated that she would prescribe medication to treat the pain: Lorcet, Flexeril, and Motrin. With the visit in the examination room concluded, Ms. Lindstrom took Mr. Heal back to the receptionist. The meeting in the examination room and his first visit to the JHS offices being over, Mr. Heal departed the JHS facility. He did not return until the following October. October 31, 2006 Mr. Heal returned to the JHS facility on October 31, 2006. The process during the second visit was similar to the one followed during the visit the previous August. He presented as “RJ.” A staff member took his blood pressure in the reception area and he paid her $90 in cash. Mr. Heal sat down and waited to be called. Again, Ms. Lindstrom appeared in the reception area and took him to the examination room in the back. The visit was shorter than it had been in August. Ms. Lindstrom asked if his pain had improved and if an MRI had been done. With the intention of calling in his prescriptions, Ms. Lindstrom showed Mr. Heal a list of five pharmacies from which to choose. Mr. Heal, however, took a tack that was different from Ms. Lindstrom’s intention and from his first visit: I explained to her that I did not have reliable transportation and asked [for] . . . handwritten prescriptions . . . so that I could take them to whatever pharmacy was convenient . . . . She agreed that she could write them that time, but that on the next visit, I would have to arrange for proper transportation to get to the pharmacy or wherever they needed to be called into. Hr’g Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two of them were for “Flexeril 10mg (ten) #30 (thirty)” and “Ibprofen (sic) [Ibuprofen] 800mg #120 (one twenty).” Pet’r’s Ex. B. The third prescription was for “Lorcet 10/650 #90 (Ninety).” Id. Ms. Lindstrom explained to Mr. Heal that he should use one of the five pharmacies on her list because “several [of the Clinic’s patients] had been kicked out of pharmacies . . . [that] were refusing to fill the prescriptions.” Hr’g Tr. 25. Ms. Lindstrom also “mentioned that a couple of her patients had been arrested for forging prescriptions.” Hr’g Tr. 25-6. At no time during his visit to JHS on October 31, 2006, did Mr. Heal see a physician. No one entered the examination room where Ms. Lindstrom met with Mr. Heal that day. Nor did Ms. Lindstrom leave the examination room while Mr. Heal was present in the room. Like the first visit the previous August, Ms. Lindstrom recommended that Mr. Heal have an MRI. She explained that results from an MRI were needed “in case the DEA wanted to look at the file, to show that [she and JHS] were actually treating [Mr. Heal] for something.” Hr’g Tr. 28. December 1, 2006 Little more than a month later on December 1, Mr. Heal made a third visit to JHS. The reception process was the same. The receptionist took his blood pressure, he paid $90 in cash, and waited in the reception area for Ms. Lindstrom to call him back. While waiting, he was informed that the number of pharmacies that would accept JHS prescriptions had been drastically reduced. Only one pharmacy would now accept JHS prescriptions: a pharmacy called New Horizon. Subsequent to the third visit, Mr. Heal presented to the pharmacy identified as New Horizon. In the company of law enforcement and with its supervision, Mr. Heal had the prescriptions filled for three medications: Flexeril, Ibuprofen at a prescription-strength dosage, and Lorcet. Supervising Physician and Other Claims At hearing under oath, Ms. Lindstrom admitted that she treated Mr. Heal once at the JHS facility and admitted that she prescribed Flexeril and Ibuprofen for him. She claimed under oath that the supervising physician for the 2006 visit in which she prescribed the two medications was James Hendrick, M.D. The Department produced documentation in the Department’s official business records that shows that Dr. Hendrick cancelled his Professional Liability Insurance Policy effective October 1, 2005, the year before Ms. Lindstrom claims to have seen Mr. Heal at the JHS facility under Dr. Hendrick’s supervision. The reason for the cancellation of the policy is listed on the letter from the insurer to the Department as “Retired.” Pet’r’s Ex. F, letter dated October 17, 2005, from FPIC, First Professionals Insurance Company. Department records also include an “Address Change” form that contains a section entitled “Financial Responsibility” dated November 21, 2005, the year before the incidents in this case. No boxes are checked in the section that shows “Financial Responsibility Coverage.” Under a section on the form entitled, “Category II: Financial Responsibility Exemptions,” Dr. Hendrick checked a box that indicated he was “retired or maintain[ed] part-time practice,” id., at least as of late November 2005, 11 months or more before the October 31, 2006, visit by Mr. Heal. Ms. Lindstrom made other claims with regard to RJ’s visit that she asserted occurred on October 3, 2006, rather than October 31, 2006, as charged. Among them was that she left the examination room after completing the prescriptions for Flexeril and Ibuprofen and partially completing a third prescription by inserting all the information, including her signature, except for the medicine to be prescribed and how often it should be taken. Ms. Lindstrom claimed that she intended to write a prescription for Lodine, but failed to write down “Lodine” on the third prescription form because she was distracted by a discussion with Mr. Heal about the need for RJ to have an MRI. She says she left the room to make arrangements for an MRI and when she returned, RJ was gone, together with the two filled out prescriptions, the third incomplete prescription, and her prescription pad. Ms. Lindstrom’s testimony about the theft of the pad and other details about the event, including when it occurred, is not credible. In contrast, Mr. Heal’s testimony about the visits he made to the JHS facility, seeing Ms. Lindstrom, and her prescription of Lorcet, is credited as truthful. Lorcet Lorcet contains hydrocodone, which is a controlled substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent Sandra A. Lindstrom, P.A., violated section 458.331(1)(nn), Florida Statutes (2006), by violating Florida Administrative Code Rule 64B8-30.008 (2006), as charged in the Amended Administrative Complaint; Imposing a $2,500 fine; and Revoking Respondent’s license as a physician assistant. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2016. COPIES FURNISHED: Sandra Ann Lindstrom 6726 Pomeroy Circle Orlando, Florida 32810 Yolonda Y. Green, Esquire Maciej Lewandowski, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Findings Of Fact The findings of fact stipulated to by the parties are as follows: The Respondent's license was suspended for a period of three years by Final Order of the Board of Medical Examiners filed on or about June 25, 1985. The Respondent filed a timely Notice of Appeal of the foregoing Final Order. The Respondent filed a Motion to Stay the Final Order with the Board of Medical Examiners, through appellate counsel, but said motion was not ruled upon by the Board of Medical Examiners at any time pertinent to the dates related to the Administrative Complaint. No petition for stay was filed by the Respondent until August 6, 1985, with the appellate court having jurisdiction of the direct appeal, when said motion was filed by appellate counsel. The District Court of Appeal, First District, entered a temporary stay of the Final Order of the Board of Medical Examiners on August 6, 1985, but dissolved the stay on August 9, 1995, upon written response from the Department of Professional Regulation. No other stay was in effect at any time pertinent to the times material to the matters raised in the Administrative Complaint filed herein. The Respondent continued to practice medicine subsequent to the filing of the Motion to Stay filed with the Board of Medical Examiners until contacted in person by investigators of the Department of Professional Regulation who informed the Respondent, on August 12, 1985, that no stay of the Final Order was in effect. At that point, the Respondent immediately surrendered his medical license to the investigators of the Department of Professional Regulation and informed said investigators that the investigators should contact his appellate Counsel because of the "Confusion." The Respondent believed, and was specifically advised by appellate Counsel, that the Final Order of the Board of Medical Examiners filed June 25, 1985, was stayed automatically by the District Court of Appeal, First District, notwithstanding the fact that the only stay entered by the District Court of Appeal, First District, was from August 6 to August 9, 1985. Not only was the Respondent advised by appellate counsel orally that such a stay was automatically effected by the filing of the Notice of Appeal with the District Court of Appeal, First District, but appellate counsel provided written confirmation of the alleged existence of such a stay to Jacksonville hospitals providing medical privileges to the Respondent. An example of such written confirmation is a letter dated July 30, 1985, to the President, Board of Trustees of St. Vincent's Medical Center advising St. Vincent's Medical Center that the Final Order of the Board of Medical Examiners was automatically stayed by operation of Section 120.68(3), Florida Statutes. In that letter, appellate counsel not only advised St. Vincent's Medical Center of the existence of an alleged automatic stay, but copied the Respondent with said advice, confirming to the Respondent that the Final Order of the Board of Medical Examiners had in fact been stayed.
The Issue The issue in this case is whether Respondent, Amelia Kay Jacobs, committed the offenses alleged in an Administrative Complaint entered by the Insurance Commissioner of the State of Florida on February 20, 1998.
Findings Of Fact Petitioner, the Department of Insurance (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with the responsibility for, among other things, the licensing and discipline of insurance representatives in Florida. Chapter 626, Florida Statutes (1997). Respondent, Amelia Kay Jacobs, is currently licensed by the State of Florida as a nonresident life and health agent. Ms. Jacobs agent number is 510427789. On or about July 24, 1980, a Complaint/Information was filed in the District Court of the Eighteenth Judicial District in and for Sedgwich County, Kansas, charging Ms. Jacobs with one count of Giving a Worthless Check in violation of Section 21- 3707, Kansas Statutes, a Class E Felony. On or about April 28, 1981, Ms. Jacobs entered a plea of guilty to the charge of Giving a Worthless Check before the Kansas District Court. The Court adjudicated Ms. Jacobs guilty as charged, but withheld sentencing for a period of one year from June 26, 1981. Ms. Jacobs was subsequently released early from probation. On or about May 20, 1996, Ms. Jacobs swore to and signed an Insurance License Application (hereinafter referred to as the "Application") with the Department. Ms. Jacobs filed the Application seeking licensure as a nonresident life and health agent. On the Application Ms. Jacobs, while under oath, responded "NO" to the following questions: 13. Have you ever been convicted of, found guilty of, or pleaded no contest to a crime involving moral turpitude No (yes or no), or a felony No (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or country, whether or not a judgment of conviction has been entered? No (yes or no) If yes, give date(s): N/A Ms. Jacobs knew or should have known that her answers to question 13 were false and a material misrepresentation of fact. The Department relied upon the incorrect misrepresentation of Ms. Jacobs to question 13 on the Application in approving the Application. Ms. Jacobs was informed by the Department by letter dated August 14, 1996, that the Department had received information concerning the foregoing. The Department gave Ms. Jacobs an opportunity to explain the incident or to withdraw her Application because she was a first-time applicant still on probation. On or about February 20, 1998, the Insurance Commissioner entered an Administrative Complaint against Ms. Jacobs. The complaint was based, in part, on the incident described, supra. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights form denying the factual allegations of the Administrative Complaint and requesting a formal administrative hearing. Rule 4-231.160(2), Florida Administrative Code, lists certain aggravating and mitigating circumstances which should be considered in determining the appropriate penalty for a violation of Sections 626.611(14) or 626.621(8), Florida Statutes (1997): The number of years since the criminal proceeding: It has been 18 years since Ms. Jacobs was charged with Giving a Worthless Check in violation of Section 21-3707, Kansas Statutes. Age of licensee at the time the crime was committed: Ms. Jacobs was 36 when the offense was committed. Whether licensee served time in jail: The evidence failed to prove that Ms. Jacobs served time in jail. Whether or not licensee violated criminal probation: Ms. Jacobs did not violate probation. She was released from probation early. Whether or not licensee is still on criminal probation: The evidence failed to prove that Ms. Jacobs is still on probation. Whether or not licensee's actions or behavior resulted in substantial injury to the victim: Ms. Jacobs made restitution of the amount of the worthless check. The victim, therefore, did not suffer substantial injury. Whether or not restitution was, or is being timely, paid: Ms. Jacobs made restitution. Whether or not licensee's civil rights have been restored: Ms. Jacobs' civil rights were not impacted. Other related factors: The evidence failed to prove that any other factors apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Insurance finding that Amelia Kay Jacobs has violated the provisions of Sections 626.611(2), (7), and (14), and 626.621(1) and (8), Florida Statutes (1997), as alleged in the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Jacobs violated Sections 626.611(1) and (13), and 626.621(2), Florida Statutes (1997), be dismissed. It is further RECOMMENDED that the nonresident life and health agent license issued to Ms. Jacobs be suspended for a period of six months from the date of the Final Order. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance 645A Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Amelia Kay Jacobs Post Office Box 8073 Wichita, Kansas 67268-8073 Bill Nelson State Treasurer and Insurance Commission The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
