Findings Of Fact By letter dated May 1, 1989, HRS gave petitioner formal notice of a moratorium on new admissions to petitioner's intermediate care facility for the developmentally disabled, effective two days earlier. Thereafter, HRS terminated the moratorium. As far as the record shows, the moratorium had no effect on the facility's census. HRS never filed an administrative complaint or took other steps to institute proceedings to restrict, suspend or revoke petitioner's license, in accordance with section 120.60(7), Florida Statutes (1989), and has no intention of doing so.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter an order rescinding the moratorium it imposed on new admissions to petitioner's facility, effective April 28, 1989. DONE and ENTERED this 12th day of February, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1990. COPIES FURNISHED: Thomas D. Watry, Esquire The Perkins House 118 North Gadsden Street Suite 101 Tallahassee, FL 32301 Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FT. WALTON BEACH DEVELOPMENTAL CENTER, Petitioner, CASE NO.: 89-3741 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
The Issue Count I: Whether or not Respondent violated a provision of Chapter 458 and a lawful order of the Department of Professional Regulation by refusing to comply with a March 23, 1988 order of the Secretary of the Department of Professional Regulation to produce and release medical reports pertaining to Respondent's mental or physical condition, and in so refusing violated Sections 458.331(1)(x) and 458.339(2) F.S. Count II: Whether or not Respondent violated a lawful order of the Board of Medicine previously entered in a disciplinary hearing, that is, whether or not Respondent specifically violated probation conditions imposed by a final order entered April 18, 1988, by failing to notify the Board of a change of residence address, and in so doing violated Sections 458.331(1)(x) and 458.339(2) F.S.
Findings Of Fact Respondent was first licensed as a medical physician under the laws of the state of Florida in 1971. Thereafter, he regularly renewed license number ME 0017326 until it expired December 31, 1989. The instant case's DPR number is 8902496. Due to the defenses and motions, it is important to note that the instant case constitutes the third formal administrative complaint against Respondent. Prior to August 10, 1987, Respondent was charged in the first formal administrative complaint (DPR Case No. 63959) by the Department of Professional Regulation, Board of Medicine, with certain professional violations, none of which involved allegations Respondent was physically or mentally impaired to practice. On August 10, 1987 the Board of Medicine entered a Final Order approving, adopting, and incorporating a May 14, 1987 stipulation signed by Respondent. In pertinent part, the disposition of that case under the August 10, 1987 Final Order provided as follows: Respondent's license shall be placed on probation for a period of one (1) year subject to the following terms of probation: Respondent shall not violate the provisions of Chapters 455, 458, or 893 Florida Statutes. In the event the Respondent should leave Florida to reside or practice outside of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. Respondent's term of probation under the August 10, 1987 Final Order commenced on August 10, 1987 and would have concluded on August 9, 1988 but for subsequent intervening events. On or about July 10, 1987, the second formal administrative complaint had been filed against Respondent. That administrative complaint was referenced by DPR Case No. 75536. The second case also did not involve any allegations of Respondent's unfitness to practice due to any type of impairment, but did allege inappropriate or excessive prescribing of drugs and failure to treat a patient with that level of care, skill and treatment recognized by a reasonably prudent similar physician, failing to keep written medical records, gross or repeated malpractice, and prescribing outside of professional practice. In October 1987, Respondent considered himself "burned out" and under stress and at the request of his partners submitted himself to evaluations for alcohol and drug abuse. The results of these evaluations are not in evidence. 2/ For a period of time, the precise dates of which are not clear on the record, Respondent also submitted himself to counselling with a psychiatrist, Dr. Virzi. While counselling with Dr. Virzi, Respondent was under the impression that Dr. Virzi was in confidential communication with, and following instructions given by, Dr. Roger Goetz on behalf of the Board of Medicine. Respondent "thought" Dr. Goetz was the "Florida Director of the Impaired Physicians Program for the entire State," but was a little vague on how he came by that knowledge and equally vague on whether he or Dr. Virzi ever actually provided any medical records to Dr. Goetz. Respondent testified that Dr. Goetz appeared with him at a Board of Medicine probationary hearing, but the exhibits which purport to be the Respondent's record before the Board and the Department of Professional Regulation (DPR) are silent on any official involvement of Dr. Goetz with Respondent either on behalf of the Board of Medicine or the DPR or before the Board for any reason. Neither Dr. Virzi nor Dr. Goetz testified; no records of Respondent's psychiatric treatment or of his entry into any impaired physician program were offered in evidence. Respondent presently has no agreement with anybody, including Dr. Virzi or Dr. Goetz, to complete any type of treatment program and he is not now and never has been in the Physicians Recovery Network. Respondent testified that although he acknowledged to himself and possibly to his partners in February 1988 that he was impaired, the nature of that impairment, other than "stress," was undisclosed and unacknowledged by Respondent at formal hearing. Indeed, Respondent further testified that at some point, he stopped seeing Dr. Virzi because Dr. Virzi recommended that Respondent enter an alcoholic treatment program and Respondent personally understood his evaluations to be that he was not an alcoholic. As of the date of formal hearing, Respondent was seeing a different psychiatrist. Respondent's testimony leaves the overall impression that Dr. Goetz' contact with him was secondhand at best and that no medical releases were executed by Respondent specifically for Dr. Goetz. However, there was sufficient evidence from which one may infer that a Board consultant was informally notified that there was reason to believe Respondent was impaired as a result of the misuse or abuse of alcohol and drugs, or both, or due to mental condition, and that throughout this period of the consultant's involvement, Respondent was simultaneously under investigation and prosecution by the DPR under the second formal administrative complaint which did not allege impairment. On February 23, 1988, Respondent signed a stipulation to settle the second disciplinary case upon presentation of the stipulation to the Board. The stipulation, however, bore DPR Case No. 75537. On or about March 23, 1988, an Order to Produce and Release Medical Records signed by the Secretary of the Department of Professional Regulation was entered in DPR Case No. 0090191. In pertinent part, that order found, determined, and ordered that: . . . The Department of Professional Regulation has reason to believe Glenn L. Pohlman, M.D. has violated Section 458.331(1)(s), Florida Statutes, by being mentally impaired and unable to practice medicine with reasonable skill and safety to patients. . . . Furthermore, the Department has need for additional information relative to the mental and physical condition of Glenn L. Pohlman, M.D. . . . pursuant to Section 458.339 Florida Statutes Glenn L. Pohlman M.D. is hereby ORDERED to forthwith release to the Department of Professional Regulation the names of all physicians treating him for the period of time from on or about January 1, 1986 through and including the date of the filing of this Order for any mental or physical condition, and it is further ordered that Glenn L. Pohlman, M.D. release to the Department of Professional Regulation all medical records and reports pertaining to his own mental and physical condition within that same period of time. In order to comply with this order, Glenn L. Pohlman M.D. shall execute five (5) Patient Consent for Release of Medical Information forms. . . . The foregoing Departmental Order is facially sufficient. Its case number corresponds to a computer cross-reference sheet listing a confidential complaint dated November 10, 1987. (P-5, last page) Respondent admitted receiving a copy of the Department's Order in March 1988. Respondent did not appeal the Department's Order or directly take issue with its "lawfulness." He merely refused to comply with it until the Board gave him more information. On April 18, 1988, the Board of Medicine entered a Final Order in DPR Case No. 75537 approving, adopting, and incorporating, as modified therein, the February 23, 1988 stipulation signed by Respondent in DPR Case No. 75537. The witnesses' testimony and the chronology of the official records admitted in evidence are persuasive that, despite the discrepancy of case numbers, the Final Order/Stipulation in DPR Case No. 75537 disposed of the charges contained in the formal administrative complaint in DPR Case No. 75536. That is, the second disciplinary case initiated July 10, 1987 by the second formal administrative complaint described in Finding of Fact 5, supra. That Final Order provides, in pertinent part: 5. Respondent's license shall be placed on probation for a period of up to two (2) years subject to the following terms of probation: * * * b. In the event the Respondent should leave Florida to reside or practice outside the State of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. * * * 8. Respondent agrees to abide by all terms and conditions of this Stipulation. It is expressly understood that a violation of this stipulation shall be considered a violation of Chapter 458, Florida Statutes, for which a disciplinary action may be initiated. There is no acknowledgment within the February 23, 1988 stipulation and no finding within the April 18, 1988 Final Order that the Respondent was impaired. The order requires his prescribing to be monitored but does not limit the scope of Respondent's practice or require his withdrawal from practice. Respondent's term of probation under the April 18, 1988 Final Order would have concluded on April 17, 1990 but for subsequent intervening events. Regardless of testimony by the Administrative Assistant to the Florida Board of Medicine that on the basis of an August 1988 letter from Dr. Scales described in Finding of Fact 25, infra, the Board had tolled the Respondent's probationary periods under each of the two prior Final Orders of probation, beginning in February 1988, it is found that any tolling of the Respondent's probationary periods by the Board must legally be based upon the terms of the respective Final Orders. In a March 28, 1989 interview initiated by a DPR investigator, Respondent gave the investigator a North Carolina address and telephone number, saying it was his temporary residence, and again refused to comply with the Department's March 23, 1988 Order to release his medical records. On May 15, 1989, a letter pursuant to Section 455.225 F.S. from DPR Investigator Dowd to Respondent at Respondent's last known Jacksonville professional address (see Finding of Fact 23) informed Respondent that he was being investigated in connection with a complaint that Respondent had "failed to honor a lawful order by the Department of Professional Regulation to sign and execute a Release of Medical Information." That letter referenced Case No. ME0017326 3/ 8902496 4/. Approximately July 5, 1989, Respondent confirmed that the North Carolina address and telephone number were temporary. At formal hearing, Investigator Danson acknowledged that at all times material, investigators could always, eventually, locate Respondent through the North Carolina telephone number and address or through the Jacksonville professional address. On August 11, 1989, DPR Investigator Danson sent Respondent another copy of the March 23, 1988 Order and requested immediate compliance. On August 21, 1989, Respondent's then-attorney wrote Investigator Danson, asking to be informed of any lawful complaints pending at that time which might relate to Respondent. The evidence does not reflect any reply from any DPR employee to the attorney's letter, and Respondent continued to refuse to provide medical records or sign releases therefor. Respondent never produced any medical records and never signed any releases. He has consistently refused to provide his medical records or sign releases therefor up to and including the date of formal hearing herein which was the result of the third formal administrative complaint dated October 24, 1990. At least until February 20, 1988, Respondent maintained a professional practice at 3599 University Boulevard South, Jacksonville, Florida 32216. Even when not actively practicing at that address, Respondent has continued to receive mail there up to and including the date of formal hearing herein. He has also continued to be a stockholder in the medical practice of his partners still practicing there and a stockholder in the building at that address. He likewise draws disability insurance payments from the insurer for the partnership. Respondent has never taken the initiative to provide DPR or the Board with any other address in writing despite the two prior Final Orders requiring him to do so. At formal hearing, Respondent represented that, in collaboration with his partners, he voluntarily ceased to practice medicine in the state of Florida on February 20, 1988, a date prior to his signing the second stipulation, prior to entry of the Order of the Secretary, and prior to entry of the second Final Order of probation. The record is clear, however, that in May 1988, pursuant to the terms of the April 18, 1988 Final Order, Respondent qualified Dr. Scales as his monitoring physician to oversee his professional practice. In August 1988, Dr. Scales, Respondent's monitoring physician, notified the Department of Professional Regulation that he had nothing to monitor or report on since Respondent had ceased active practice in February 1988, three months before Dr. Scales was even qualified as monitoring physician. At no time did Respondent surrender his license to the Board or request being placed on inactive status. He is currently on inactive licensure status only because he did not timely renew his license prior to its natural expiration on December 31, 1989. Between February 1988 and the date of formal hearing, Respondent lived in several locations. Although he asserted that he has never "established residency" outside the state of Florida, Respondent admitted that since entry of the April 18, 1988 Final Order, he has "lived" outside Florida for more than 30 consecutive days, that he spent five weeks in Europe, and many months, at least intermittently, in Arizona and North Carolina. Since February 1989, much of Respondent's time has been devoted to repairing and refurbishing for sale a house in Charlotte, North Carolina. The house was damaged by a hurricane after he had purchased it in January 1989. Respondent simultaneously maintained a residence in Jacksonville with his daughter, but he has never taken affirmative action to notify DPR or the Board in writing of this address or of an address where he lived in Melbourne, Florida, for more than thirty days in 1988, either. Although vague and inconclusive as to the exact time frames of his absences from the state of Florida, it is clear that on several occasions, Respondent has failed to notify DPR or the Board of Medicine in writing of his dates of departure and return to Florida and has frequently resided outside the state of Florida for more than 30 consecutive days. Nor has he notified anyone in writing of his in-state changes of residence.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order providing as follows: Finding Respondent guilty of Counts I and II as alleged in the third administrative complaint (two violations of Section 458.331(1)(x) F.S.), and suspending his license to practice medicine in the state of Florida until the March 23, 1988 Order of the Department is complied with, subject to the statutory cap for suspension of a license, and thereafter ordering probation under the terms and conditions of the two prior final orders. DONE and ENTERED this 1st day of October, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1991.
