The Issue Whether Respondent properly denied Petitioner's application for a multi-state nursing license based upon his criminal and disciplinary history.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing on behalf of the State of Florida, pursuant to section 20.43 and chapters 456 and 464, Florida Statutes. The Board is charged with final agency action with respect to nurses licensed pursuant to chapter 464. Petitioner was previously licensed in South Carolina and Maryland as a Registered Nurse ("RN").1/ Petitioner also previously held a conditional license as an RN in Florida. Petitioner applied for a multi-state RN license with the Board on December 31, 2018. Section 464.0095, Article III (3)(g), prohibits a state from issuing a multi-state license to a person who has been convicted or found guilty, or has entered into an agreed disposition other than a nolle prosequi, of a felony offense. In his application, Petitioner disclosed a variety of crimes including: exploitation of a vulnerable adult; credit card fraud; assault/battery of high and aggravated nature (misdemeanor), concurrent with a second credit card theft/probation violation; attempted identity theft; and petty theft. All applicants are required to submit fingerprints with the application and the Board receives criminal history background reports. In addition to the crimes disclosed by Petitioner, his background screen revealed additional charges of: driving under the influence; defrauding hotel, inn, cafe, etc.; obtaining property by false pretenses; reckless driving; driving under suspension; and receiving stolen goods. Petitioner also disclosed that his South Carolina RN license was suspended in 2004 and then voluntarily surrendered in 2011. His Maryland RN license was revoked in 2009. Petitioner applied for an RN license in Florida in 2012 and was approved for a license conditioned upon entering into a five-year contract with the Intervention Project for Nurses ("IPN"), meeting the terms of the program, including frequent drug–testing, and completing a board approved remedial course. Petitioner voluntarily relinquished his conditional license in September 2013 due to his inability to participate in the IPN due to financial reasons. Petitioner applied for reinstatement of his conditional license in 2015 and his application was rejected by the Board based on prior discipline and his criminal history. Petitioner contends that his criminal history is unrelated to the practice of nursing. He argues that his crimes are directly related to his previous crack cocaine addiction. Petitioner has maintained long periods of sobriety and believes that his crimes, committed prior to his 2012 grant of a conditional license by the Board, should not be considered in weighing his current application. Petitioner's Prior Crimes and Licensing History On May 21, 2003, the South Carolina State Board of Nursing entered an Order of Temporary Suspension of Petitioner's license to practice as a registered nurse. The Order was based on Petitioner's: criminal charges of exploitation of a vulnerable adult and swindling; denial that he had been charged with a crime on his renewal application for reinstatement of a lapsed license; administering an antibiotic four hours late and falsely entered the time of administration in the medical record; and being arrested for Financial Transaction Card Theft. This Order of Temporary Suspension was superseded by a Final Order rendered by the Board on August 12, 2004. By this Final Order, the South Carolina Board of Nursing indefinitely suspended Petitioner's license. On March 9, 2009, the South Carolina Board of Nursing entered another Final Order against Petitioner that indefinitely suspended his license to practice nursing. This Final Order cited as grounds that: his prior license had been suspended and lapsed; he failed to disclose a criminal conviction on his August 2004 license application; he entered a South Carolina hospital, impersonated a plastic surgeon, asked a technician for $60, and manipulated her breast with his hand after a discussion of breast augmentation, which resulted in an arrest for Assault and Battery of a High and Aggravated Nature for which he was incarcerated for three years; after this release from prison, he was incarcerated in North Carolina for obtaining money by false pretenses; and he was then convicted of Attempted Identity Theft. The March 2009 South Carolina Final Order incorporated a Memorandum of Agreement between Petitioner and the State of South Carolina and outlined conditions precedent for license reinstatement and probationary terms to be imposed upon reinstatement. Petitioner never met the reinstatement conditions imposed by the March 2009 Final Order and the South Carolina Board of Nursing accepted Petitioner's Agreement of Voluntary Surrender of his nursing license on July 5, 2011. Petitioner contends these crimes were not related to the practice of nursing. He did not divert drugs from patients or medical facilities. However, he entered hospital staff lounges and stole scrubs and lab coats to impersonate medical personnel. He then pretended to be a doctor who lost or forgot his wallet. He would ask other medical professionals for cab fare which he then used to buy crack. While pretending to be a plastic surgeon, Petitioner claims that a young woman from whom he solicited money, asked him to examine her newly augmented breast because she was concerned that something was not right with the implant. Regarding the conviction for exploitation of a vulnerable adult, Petitioner claims that he was arrested while in a car borrowed from a woman with whom he regularly got high. When she was questioned, she told the police that Petitioner stole her car. Petitioner claims he was charged with exploiting a "vulnerable adult" only because the woman was bipolar and on antipsychotic medications. According to Petitioner, "It had nothing to do with nursing. She was basically my accomplice."2/ Petitioner also admitted that while he was on probation, he stole credit cards from hospitals (presumably patients and co-workers) to buy merchandise to give to his drug dealers, and that he pretended to be a doctor by dressing in scrubs to scam restaurants into giving him cash back from fraudulent transactions. By Final Order dated October 27, 2009, the Maryland Board of Nursing revoked Petitioner's license to practice as an RN. The Maryland Board cited as grounds for the revocation that Petitioner: was disciplined by a licensing, military, or disciplinary authority in this State or any other state for an act that would be grounds for disciplinary action in Maryland; knowingly performed an act that exceeds the authorized scope of practice; commits an act that is inconsistent with generally accepted professional standards of practice; is addicted to, or habitually abuses, any narcotic or controlled dangerous substance; and engaged in conduct that violates the professional code of ethics, specifically, knowingly participating in or condoning dishonesty, fraud, deceit or misrepresentation and patient abandonment. The Board's expert, Barbara Thomason, MSN, APRN, FNP- BD, credibly testified that these crimes all constitute unprofessional conduct that relate directly to the practice of nursing. Nurses are required to adhere to a strict standard of professionalism and honesty so that their vulnerable patients are not victims of opportunity. Nurses are also required to ensure the safety and well-being of their patients. Impersonating medical professionals, committing battery, fraud, theft, and failing to timely disclose these crimes to the licensing board, all relate to one's ability to practice nursing professionally. Petitioner's testimony regarding his crimes was, "I didn't do anything major. So it was wrong."3/ Regarding the young woman whose breast he manipulated, Petitioner speculated that she was coming on to him and claimed that the investigating police officer described the victim as "stupid," "an idiot" and "an airhead." It does not take expert testimony to understand that Petitioner lacks remorse, has no concept of the seriousness of his myriad offenses, and that these directly call into question his ability to practice as a nurse. Petitioner's Florida Licensing History On April 18, 2012, a Notice of Intent to Approve with Conditions was filed with the Department of Health Clerk. Petitioner was approved for licensure as an RN conditioned upon his signing an advocacy contract with the IPN and complying with any and all terms and conditions imposed by the IPN. IPN is the impaired practitioners program of the Board, designated pursuant to section 456.076. IPN monitors the evaluation, care, and treatment of impaired nurses. IPN also provides for the exchange of information between treatment providers and the Department for the protection of the public. Petitioner was also required to complete a remedial course within 12 months. Approximately one year into the IPN program, and after completing the remedial course, Petitioner had two urinalysis drug screens in a month that were suspicious due to excessive temperatures. As a result, he was requested by IPN to undergo a psychiatric evaluation. Petitioner checked prices for such an evaluation in his area and found that the least expensive evaluation would cost $600.00. Petitioner was only working part time earning $400.00 a month and could not afford the evaluation. Petitioner called the Board and was advised by administrator William Spooner to write a letter to the Board asking to voluntarily relinquish his license due to financial reasons. Mr. Spooner allegedly told Petitioner that when Petitioner was able to resume the program, he could ask for reinstatement. Petitioner was under the assumption that his reinstatement would be automatic.4/ Petitioner applied for reinstatement of his license in 2014. On October 8, 2014, a NOID for Petitioner's application for endorsement as an RN was filed with the Department of Health Clerk. The Board based this denial on the grounds that Petitioner: entered a guilty plea to a charge of assault and battery; was convicted of identity theft by impersonating a physician; had his South Carolina RN license suspended; and had his Maryland license revoked. After conducting a hearing not involving disputed issues of material fact in accordance with sections 120.569 and 120.57(2), Florida Statutes, on the allegations contained in the NOID, the Board voted to deny the licensure application. The Final Order was filed on January 14, 2015. Petitioner's Criminal History since 2015 and Rehabilitation After the license denial, Petitioner relapsed and began using drugs again. Between 2015 and June 2017, he pled no contest and was convicted of three more misdemeanor thefts. Prior to this relapse, Petitioner was sober for 9 years and 11 months. Petitioner testified that during 2015 through 2017, he stole to feed himself. Petitioner has been sober again since December 16, 2017. Petitioner has made significant efforts to maintain his sobriety. Petitioner moved into a halfway house, rejoined AA, has a sponsor, serves as clergy and a lay minister to inmates at the Broward County jail and detention center, and is involved in his church. Petitioner works as a telemarketer and his vocational rehabilitation job counselor, Larry Hinton, testified that Petitioner is a reliable worker who is also working hard on his recovery. Petitioner received no fines or orders of restitution related to his crimes. He served his prison time and successfully completed probation and has a full restoration of his voting rights. Petitioner waited for a year of sobriety and after his most recent conviction of theft before reapplying for licensure. On March 15, 2019, the Board issued a NOID on Petitioner's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Board of Nursing enter a Final Order denying Petitioner's application for a multi-state RN license. DONE AND ENTERED this 16th day of October, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 16th day of October, 2019.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the State of Florida agency responsible for regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2004). As set forth herein, the Respondent was a physician licensed to practice medicine in the area of critical need (ACN), and holding Florida license number ACN144. A physician holding an ACN licensed must practice in a facility that meets certain statutory requirements or which is designated by the State Health Officer as an entity providing health care to an indigent population, and must submit documentation establishing employment at an ACN-designated facility for licensing. The secretary of the Florida Department of Health is the state health officer. Prior to the events at issue in this proceeding, the Respondent practiced medicine as medical director at "Mariner's Medical Center" (Mariner's), which closed in October 2002. Mariner's was an approved ACN facility. After the closure of the Mariner's facility, the Respondent accepted a position in Miami at Jackson Memorial Hospital (Jackson) in October 2002; however, prior to commencing his employment, circumstances at Jackson changed and the Respondent's position at Jackson was eliminated. The Respondent's employment contract at Jackson was terminated and, he received payment under the terms of the agreement. The Respondent subsequently returned to central Florida, apparently intent on opening a medical practice. By letter to "Sandy Condo," from the Respondent dated July 17, 2003, the Respondent sought responsibility for Mariner's medical records. The letter did not further identify Sandy Condo, but the address was that of the Petitioner. The letter, which identified the practice as an entity called "Boriquen Healthcare Plus," stated as follows: This is to certify my desire for the responsibility of the medical records of Mariner's Medical Center, where I was the Medical Director until October 24, 2002. I am willing to be the custodian of these medical records and I would like the computer data base (sic) be transferred to my care. I intend to follow up on the care of all these patients. In August 2003, the Respondent opened a private practice at 931 West Oak Street, Suite 103, Kissimmee, Florida, and began treating patients. The practice was initially named "Boriquen Health Care" (reflecting the historical name for Puerto Rico), but within a few days of opening was renamed "Physician's Health Care Plus." Towards the end of August 2003, the Respondent made efforts to acquire the ACN designation for his practice. Materials seeking the designation were submitted by Glenda E. Gonzalez-Cortes, M.D., the Medical Director for Physician's Healthcare Plus, to the Board of Medicine (Board). Although the materials were received by the Board, the Board was not the agency responsible for ACN facility designations. It is unclear whether the Board forwarded the materials to the appropriate office within the Department of Health for processing. It is likewise unclear whether the Respondent understood the distinction between the "Department of Health" and the "Department of Health, Board of Medicine." In any event, the fact that materials were submitted seeking ACN designation for the practice clearly establishes that the Respondent was aware that the practice was not designated as an ACN facility. A memo dated October 2, 2003, from Melinda K. Gray, Regulatory Supervisor of the Board of Medicine, to Larry McPherson, Jr., Executive Director of the Board of Medicine, stated as follows: Attached please find a letter dated July 17, 2003, from Dr. Jose A. Gutierrez, expressing his desire to take responsibility for the medical records of Mariner's Medical Center. Based on my conversation today with Dr. Gutierrez, he again expressed his desire to take responsibility of the medical records and to follow-up on the care of these patients who received medical treatment at Mariner's Medical Center Please be advised of the following: Mariner's Medical Center is closed. Mariner's Medical Center is owned by a non-health care licensee. The medical records located at Mariner's Medical Center are currently inaccessible and are being maintained by a leasing company. Dr. Gutierrez or the patients do not have access to these medical records. Dr. Gutierrez is willing to take custody of these records, which are located on a computer hard drive, and paper records. The hard drive is necessary to be able to link between the patient's name and patient identification numbers. Dr. Gutierrez indicated he intends to follow the care of these patients. Dr. Gutierrez holds a clear active medical license in the area of critical need in the state of Florida and reflects no prior discipline. Dr. Gutierrez indicated that either the leasing company or the owner of Mariner's Medical Center would not release these records to him until the Board of Medicine reviews his request to take custody of the records and the Board grants his request. Dr. Gutierrez agrees, accepts and acknowledges the responsibility to maintain the medical records and follow-up patient care of the patients who received medical treatment at Mariner's Medical Center, beginning July 17, 2003. By letter dated October 7, 2003, from the executive director of the Board of Medicine, the custodial request was approved. The letter stated as follows: It is my pleasure to advise you that, pursuant to your request, the Board of Medicine voted on October 4, 2003, to permanently appoint you as the Custodian of Records for the former Mariner's Medical Center. This appointment is pursuant to Section 456.057(19), Florida Statutes, which authorizes the Board of Medicine to permanently appoint a person as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records. The Respondent suggests that the release of the records to his custody constituted approval of his July 17 request to provide treatment; however, the October 7 letter clearly did not address issues regarding provision of patient care. The statutory citation referenced in the letter addresses only custody, maintenance, and use of medical records. There is no credible evidence that the ongoing dialogue between the Respondent and representatives of the Petitioner constituted approval of the Respondent's request to provide medical care to Mariner's patients. Further, there is no evidence that the Respondent's practice at "Boriquen Health Care" or "Physician's Health Care Plus" was limited solely to patients who had received care at Mariner's. By letter dated November 25, 2003, to Kimberly Rivers, Regulatory Supervisor for the Department of Health, Board of Medicine, the Respondent referenced a conversation of November 21, 2003, wherein a discussion allegedly occurred regarding the requirements for ACN designation. The letter clearly establishes that the Respondent was aware that the practice had not yet received the ACN designation. The Respondent's ACN license was due to expire on January 31, 2004. On January 30, 2004, the Respondent submitted his ACN re-licensure application. Because he was not practicing at an ACN facility as of the expiration date, the ACN license was not automatically renewed. By letter dated February 5, 2004, the Petitioner notified the Respondent that his ACN license renewal could not be completed until submission of a letter from "your employer in an area of critical need." The letter referenced an enclosure that allegedly identified the ACN-designated facilities. An email dated February 16, 2004, from Joanne Davis-Trexler to the Respondent references a prior conversation and advises that the Respondent's license can not be renewed without "proof of employment in a facility approved as an Area of Critical Need." The email further advises that the Respondent's license is "delinquent" and that "practice with a delinquent license is a violation of Florida Statutes." An exchange of email between the parties indicates that subsequent to February 16, 2004, additional information, including Medicaid/Medicare billing records, was submitted by the Respondent to the Petitioner to document the patient population being served by the Respondent. On March 8, 2004, the secretary of the Department of Health, acting as the state health officer, approved Physician's Health Care Plus as an ACN-designated facility based on the staff's recommendation. On March 24, 2004, following the facility's ACN designation, the Respondent's ACN licensure was renewed. Between August 2003 (when the Respondent's practice began operating absent the ACN designation) and March 8, 2004, the Respondent failed to comply with licensure requirements limiting his practice to ACN-designated facilities. Between February 1 and March 24, 2004, the Respondent failed to comply with requirements related to timely renewal of his ACN licensure. The Respondent has moved to Texas, is no longer practicing medicine in Florida, and has placed his Florida license into a "retired" status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order issuing a letter of concern to the Respondent related to the licensing violations cited herein. DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2006. COPIES FURNISHED: Patrick L. Butler, Esquire Katharine B. Heyward, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 George F. Indest, III, Esquire Joanne Kenna, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether Petitioner's certificate of registration as a pain management clinic should be revoked pursuant to section 458.3265, Florida Statutes (2010).1/
Findings Of Fact By stipulation the parties agreed to the following: Unique is a Florida for-profit corporation; Unique is not a pain management clinic. However, Unique is registered as a pain management clinic with the Department; and Ronald and Grace Van Der Juijl are not physicians licensed under chapters 458 or 459, Florida Statutes. Unique is, therefore, not fully owned by a physician licensed under chapters 458 or 459, or a group of physicians, each of whom is licensed under chapter 458 or 459. Section 458.309(4), Florida Statutes (2009), reads, in part, as follows: All privately owned pain-management clinics, facilities, or offices, hereinafter referred to as "clinics," which advertise in any medium for any type of pain-management services, or employ a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, must register with the department by January 4, 2010, unless that clinic is licensed as a facility pursuant to chapter 395. On January 5, 2010, Unique, pursuant to section 458.309(4), submitted to the Department an application for pain clinic registration. On March 10, 2010, the Department issued to Unique, pain management clinic license no. PMC 681.4/ On October 1, 2010, approximately nine months after becoming effective, section 458.309(4) was repealed. Also on October 1, 2010, section 458.3265 became effective. Section 458.3265(1) provides, in part, as follows: (d) The department shall deny registration to any clinic that is not fully owned by a physician licensed under this chapter or chapter 459 or a group of physicians, each of whom is licensed under this chapter or chapter 459; or that is not a health care clinic licensed under part X of chapter 400. * * * (f) If the department finds that a pain- management clinic does not meet the requirement of paragraph (d), . . . the department shall revoke the certificate of registration previously issued by the department. As determined by rule, the department may grant an exemption to denying a registration or revoking a previously issued registration if more than 10 years have elapsed since adjudication. As used in this subsection, the term "convicted" includes an adjudication of guilt following a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. (Emphasis supplied.) Unique is not a health care clinic licensed under part X of chapter 400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Health, enter a final order revoking Petitioner, Unique Health Care Orlando's, license to operate as a pain management clinic. DONE AND ENTERED this 8th day of November, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 8th day of November, 2011.
The Issue On April 17, 2015, Respondent, Department of Health, issued a Notice of Agency Action Denial of License Renewal ("First Denial Notice"), notifying Petitioner, Alicia Chilito, M.D., that it had denied her application for renewal of her physician license. Thereafter, on May 19, 2015, Respondent issued an Amended Notice of Agency Action Denial of License Renewal ("Second Denial Notice"), reiterating, and stating alternative grounds for, its denial of Petitioner's physician license. Petitioner timely challenged Respondent's decision and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1). The final hearing initially was scheduled for August 14, 2015, but pursuant to motions, was set for December 16, 2015. On August 14, 2015, Respondent filed a Motion to Relinquish Jurisdiction, contending that there were no disputed issues of material fact to be resolved in a hearing conducted under section 120.57(1). This motion was denied by order issued on September 1, 2015, on the basis that disputed issues of material fact existed regarding whether Petitioner was entitled to renewal of her license by default pursuant to section 120.60(1). On December 11, 2015, Respondent filed Department of Health's Motion in Limine, seeking to limit the scope of the final hearing. A telephonic motion hearing was conducted on December 15, 2015, the day before the final hearing. The undersigned granted the motion and excluded evidence that may be offered at the final hearing to challenge the underlying factual basis on which the Termination Final Order was entered. The final hearing was held on December 16, 2015. Joint Exhibits 1 through 4 were admitted into evidence. Petitioner did not present any witnesses. Petitioner's Exhibits 1 through 10 were tendered but not admitted, and were proffered for inclusion in the record. Respondent presented the testimony of Heidi Nitty. Respondent's Exhibit 1 was admitted into evidence without objection and Respondent's Exhibits 5 and 6 were admitted over objection. Official recognition was taken of the Final Order issued by the Agency for Health Care Administration ("AHCA") in the case of Agency for Health Care Administration v. Alicia Chilito, M.D., Case No. 12-571PH (AHCA November 4, 2013) and the Order Granting Motion to Relinquish Jurisdiction in the case of Agency for Health Care Administration v. Alicia Chilito, M.D., Case No. 12-0859MPI (Fla. DOAH July 12, 2012). The one-volume Transcript was filed on January 8, 2016, and the parties were given until January 19, 2016, to file proposed recommended orders. The parties timely filed proposed recommended orders, which were duly considered in preparing this Recommended Order.
Findings Of Fact Petitioner, Alicia Chilito, M.D., is a physician licensed to practice medicine in Florida pursuant to License No. ME 74131. Respondent, Department of Health, is the state agency charged with regulating the practice of medicine, including licensing physicians pursuant to chapters 456 and 458, Florida Statutes (2015). Petitioner timely filed a Renewal Notice, which constituted her application to renew her physician license.1/ Respondent received Petitioner's Application on January 5, 2015. Respondent did not, within 30 days of receipt of her application, request Petitioner to provide any additional information that it was permitted by law to require, nor did it notify her of any apparent errors or omissions in her application. Accordingly, Petitioner's application was complete on January 5, 2015, by operation of section 120.60(1), for purposes of commencing the 90-day period for Respondent to approve or deny her application.2/ The 90-day period from Respondent's receipt of Petitioner's complete application expired on or about April 6, 2015.3/ Heidi Nitty, a government analyst I with Respondent, was involved in the review of Petitioner's application. Her specific role in the application review process was "reviewing court documents and other orders for possible denial of renewal and also recording [Respondent's] final orders in the national practitioner database." In the course of Nitty's review, she determined that Petitioner previously had been terminated from the Florida Medicaid program. Accordingly, she entered a "do-not-renew modifier" to Petitioner's license application file in Respondent's computer system. On January 20, 2015, Petitioner called Respondent to inquire about the status of her application. She was referred to Ms. Nitty, who was not available to speak to her at that time. Petitioner and Nitty exchanged calls over the course of that day, but did not speak to each other until January 21, 2015, when Petitioner again called, and that time, reached, Nitty. At that point, Nitty verbally informed Petitioner that her application "was being denied" due to having previously been terminated from the Florida Medicaid program. On April 17, 2015——some 102 days after Petitioner filed her complete application——Respondent issued its First Denial Notice, notifying Petitioner that it was denying her application. The First Denial Notice stated that Petitioner's license renewal was being denied pursuant to section 456.0635(2)(e) because she was listed on the United States Department of Health and Human Services Office of Inspector General's List of Excluded Individuals and Entities.4/ On May 19, 2015——some 134 days after Petitioner filed her complete application——Respondent issued its Second Denial Notice, again stating its intent to deny Petitioner's application. However, the Second Denial Notice stated that Petitioner's license renewal was being denied pursuant to section 456.0635(3)(c) because she had been terminated for cause from the Florida Medicaid Program pursuant to section 409.913, Florida Statutes, as reflected in the Termination Final Order issued by AHCA on March 6, 2014. The stated basis for AHCA's March 6, 2014, Termination Final Order was that Petitioner previously had been terminated from the federal Medicare program and the Florida Medicaid program. The Termination Final Order is a final order issued by AHCA, who is not a party to this proceeding. Petitioner disputes the underlying factual basis for AHCA's Termination Final Order and claims that, in any event, she did not receive the notice, issued on January 17, 2014, that AHCA was proposing to terminate her from the Florida Medicaid program; thus, she did not challenge the proposed termination. Although Petitioner has raised these challenges to the Termination Final Order in her Petition for Hearing Involving Disputed Issues of Material Fact filed in this proceeding, the undersigned is not authorized to "reopen" AHCA's Termination Final Order and revisit its factual and legal underpinnings5/ so declined to take evidence on those issues at the final hearing in this proceeding.6/ Petitioner asserts that because Respondent's First Denial Notice and Second Denial Notice both were issued more than 90 days after Respondent received her complete application, she is entitled to licensure by default under section 120.60(1). Respondent counters that the 90-day period for approving or denying Petitioner's license commenced on February 4, 2015, so its First Denial Notice was timely issued. Respondent further asserts that, in any event, Nitty's statement to Petitioner during their January 21, 2015, telephone discussion satisfied the "90-day approval or denial requirement" in section 120.60(1), so that Petitioner is not entitled to issuance of a renewed license by default. It is undisputed that AHCA did not issue the written notices of its decision to deny Petitioner's license renewal until well after April 6, 2015. Therefore, unless Nitty's statement to Petitioner on their January 21, 2015, telephone call constituted Respondent's denial of Petitioner's application within 90 days after its receipt, Petitioner is entitled to issuance of her license by default, pursuant to section 120.60(1). The evidence establishes that when Nitty told Petitioner on January 21, 2015——notably, in response to communication that Petitioner initiated——that her license "was being denied," Respondent had not yet made its final decision to deny her application, so had not yet "approved or denied" Petitioner's license. Nitty's role in the application review process was limited to determining whether Petitioner previously had been terminated from the Florida Medicaid program, and, if so, to draft a denial letter for review and approval by her superiors. That is precisely what she did. Based on her confirmation that Petitioner had previously been terminated from the Florida Medicaid program, Nitty drafted a denial letter, which was then sent up Respondent's "chain of command" for approval or rejection, and, ultimately, for signature by Respondent's Deputy Secretary for Administration. The "chain of command" included her immediate supervisor, the bureau chief, the division director, and legal counsel——any and all of whom had the authority to reject her recommendation. To that point, Nitty acknowledged that the denial letter she drafted had "some rewrite issues" and that her supervisor, had, in fact, rewritten the letter. Nitty was not the person authorized by Respondent to make its final, binding decision to approve or deny Petitioner's application, and she did not know who actually made the ultimate decision to deny Petitioner's license renewal. Thus, at bottom, when Nitty told Petitioner that her license "was being denied," she was only conveying her preliminary assessment, as application review staff, that Petitioner's application was being denied. Nitty's communication of her preliminary assessment could not, and did not, constitute Respondent's "approval or denial" of Petitioner's application.7/ Thus, Respondent did not approve or deny Petitioner's application within the 90-day approval/denial period. Accordingly, pursuant to section 120.60(1), Petitioner's application is "considered approved." There is no evidence showing that, as of the date of the final hearing, Petitioner had notified Respondent's agency clerk of her intent to rely on the default license provision in section 120.60(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that: (1) acknowledges that Petitioner's application for renewal of License No. ME 74131 is considered approved pursuant to section 120.60(1), Florida Statutes, and (2) directs Respondent's agency clerk, upon Petitioner's notification to said agency clerk that complies with section 120.60(1), to issue Petitioner's license, which may include such reasonable conditions as Respondent is authorized by law to require. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of February, 2016.
The Issue Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: (b)1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization .. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr. Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for temporary certification as a physician assistant. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993. COPIES FURNISHED: John H. Duhig, Esquire 702 National Bank Building 25 West Flagler Street Miami, Florida 33130-1770 Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The 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 facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. 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 of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Petitioner has licensed Respondent to operate the James E. Holmes Regional Medical Center located at 1350 South Hickory Street, Melbourne, Florida ("Hospital"). Petitioner's Office of Licensure & Certification performed a license- renewal inspection of the Hospital on April 7, 1987. Petitioner discovered during this inspection that Schilling tests and blood volume tests were performed in the nuclear medicine laboratory. These tests have been performed continuously since 1962 by Respondent in its nuclear medicine laboratory without previous criticism from Petitioner. On April 8, 1987, Petitioner notified Respondent that its nuclear medicine laboratory was not licensed as required by Section 483.091, Florida Statutes, to perform Schilling and blood volume tests and that the performance of laboratory procedures by "an unlicensed laboratory" must cease immediately. The letter further advised Respondent that failure to cease could subject "your laboratory/hospital" to legal action. The Schilling test is a diagnostic procedure to determine if the patient has an absence of B-12 factor in his body. The test is performed by having the patient ingest radioactive B-12 orally at the same time that he receives an injection of nonradioactive B-12. Over the next 24 to 48 hours, urine samples are then collected from the patient, who may remain at the hospital or go home. The urine is then analyzed in order to count the radioactivity and thereby determine the rate of absorption of B-12 by the patient. The blood volume test is a diagnostic procedure to determine the volume of blood in the patient. There are two forms of the test. In one, radioactive material is injected into the patient's blood. A sample of blood drawn from the patient is analyzed for radioactivity and dilution of the radioactive material. The blood volume can then be calculated. In the other form of the blood volume test, red blood cells are drawn from the patient and tagged with a radioactive material. They are then re-injected into the patient and their dilution is tracked, again to determine the patient's blood volume. Respondent performs both types of blood volume tests. In vivo means "in the living body." In vitro means "outside the living body and in an artificial environment." The Schilling test is in vitro to the extent of the urinalysis, although the ingesting of B-12 is an in vivo procedure. The blood volume test in which the radioactive material is injected directly into the patient is in vitro, insofar that blood is drawn from the patient for analysis, and in vivo, insofar as radioactive material is injected into the patient's blood. The blood volume test in which the blood is removed, tagged with a radioactive tracer, and then returned to the body is exclusively in vivo because the analysis takes place while the blood is in the patient's body. The Hospital contains a clinical laboratory and a nuclear medicine laboratory, which are on different floors in the same building. By letter dated June 25, 1987, Petitioner informed Respondent that in vitro analyses of patient specimens could only be performed in its clinical laboratory. By letter dated August 21, 1987, Petitioner elaborated by stating that licensure by its Office of Radiation Control Radiologic Technologist Program did not authorize individuals to perform in vitro analyses. Respondent is licensed by Petitioner's Office of Radiation Control "to receive, acquire, possess and transfer [certain] radioactive materials ... and to use such radioactive material[s] for the purpose[s] and at the place[s] designated below." The location designated is the street address of the Hospital. Paragraph 9 of the license expressly authorizes Respondent to perform "in vitro studies" and diagnostic procedures as described in Groups I, II, and III of Schedule C, Part III, Chapter 10D-91, Florida Administrative Code. The Schilling test and blood volume tests are described within Groups I and II above. Paragraph 12 of the license also states that the licensed radioactive material described in Groups I and II may be used "by, or under the supervision of," among others, Dr. Laudie McHenry. The clinical laboratory license held by Respondent for the Hospital was not produced at the hearing. At all relevant times, the clinical laboratory license authorized Respondent to conduct, maintain, or operate a clinical laboratory at the Hospital and to perform the Schilling test and blood volume tests. Dr. McHenry is the director of the clinical laboratory, as well as the nuclear medicine laboratory. At all relevant times, all personnel of the nuclear medicine laboratory, with possibly one exception, held certification as nuclear medicine technicians and clinical laboratory technicians. The qualifications of the personnel in the two laboratories are identical in terms of conducting the Schilling test and blood volume tests. Respondent's performance of the Schilling test and blood volume tests in the nuclear medicine laboratory did not and could not result in death or serious harm to the health or safety of any person. Respondent had no previous violations and received no financial benefit from the conducting of the Schilling test and blood volume tests in its nuclear medicine laboratory rather than its clinical laboratory.
The Issue The issues are those promoted by an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent, Charles McArthur. In particular, it is alleged that the Respondent practiced pharmacy in the state of Florida with an expired license, in violation of Subsection 465.015(2)(b), Florida Statutes (1981).
Findings Of Fact Respondent, Charles McArthur, is a pharmacist licensed by the State of Florida. His license number is 0012091. On June 20, 1983, Respondent attempted to renew his pharmacy license issued by the state of Florida on a bi-annual basis. He attempted this renewal by appearing in person before officials with the State of Florida, Board of Pharmacy, entitled to grant renewal. That renewal was denied based upon the fact that the Respondent was unable to provide verification of the requisite continuing education credits necessary for relicensure. As a consequence, on June 21, 1983 Respondent's active pharmacy license expired, leaving the Respondent with an inactive pharmacy license. For the period June 21, 1983 through July 20, 1983 Respondent practiced pharmacy with an inactive license. During that time frame, Thomas Hannah, an investigator with the State of Florida, Department of Professional Regulation, visited the Respondent in the pharmacy in which Respondent was practicing in Tallahassee, Florida. He observed the Respondent practice pharmacy and noted the presence of the expired active Florida pharmacy license. On that occasion, Hannah told the Respondent that he was operating without a current license. On the following day, July 20, 1953, Respondent paid the appropriate fees and made proof of the requisite continuing education credits and his active pharmacy license was re-issued. Subsequent to that date Respondent has held an active pharmacy license issued by the State of Florida. In view of the Respondent's practice of pharmacy with an inactive license from the period of June 21, 1983 through July 20, 1983, Respondent was charged with the present offense and requested, and was granted, a formal Subsection 120.57(1), Florida Statutes, hearing. In dealing with other recalcitrant licensees who have not renewed their licenses in the time allotted, the Board of Pharmacy, prior to February, 1980 sent a list to Board inspectors within one or two weeks following the due date of renewal and those inspectors contacted the licensees to ascertain whether the licensees had renewed their pharmacy licenses. If they found that the individual pharmacist did not renew his license that person was given an opportunity to fill out an application, to pay the fee, and to present his continuing education credits to the investigator. Persons who were not entitled to renew due to problems with the continuing education credits were told that they were delinquent, and practicing with a delinquent license was a violation of law. Those persons were given the opportunity to take leave of absence from their active pharmacy practice. Around February, 1980 due to the re- organization of the State of Florida, Department of Professional Regulation, insufficient work force was available to carry out this process of checking on the topic of the delinquent license renewals, and this sequence of inactivity continued until approximately December, 1981. During this period actions were not brought against pharmacists for failure to timely renew a license to practice pharmacy, within the meaning of Section 465.015(2)(b), Florida Statutes, provided they renewed licenses within one year of the appropriate renewal date. In December, 1981 the practice changed and the pharmacists would be prosecuted for failure to timely renew a license to practice pharmacy and continuing to practice with an expired license. This change in policy position which occurred in December, 1981 was not shown in the course of the hearing to be a matter noticed for the benefit of the practicing pharmacists in the State of Florida.
The Issue Whether Respondent should take final action to deny the renewal of Petitioner's license to practice physical therapy on the ground that Petitioner has been terminated for cause from the Florida Medicaid program, as proposed in Respondent's December 16, 2009, Notice of Intent to Deny Renewal.
Findings Of Fact 7. On September 30, 2009, AHCA entered a Final Order terminating Cueto from participation as a provider in the Florida Medicaid program. AHCA imposed this sanction against Cueto pursuant to Florida Administrative Code Rule 59G-9.070(8) (2008)——as it was authorized to do under section 409.913(13), Florida Statutes (2009)——because she had been convicted of grand theft on November 5, 2008. As of the final hearing in this case, Cueto had not been reenrolled as a Medicaid provider. * * * In the Administrative Complaint which initiated Case No. 11-1272PL, the Department charged Cueto under section 456.072(1)(kk), Florida Statutes (2009), which provides: Being terminated from the state Medicaid program pursuant to s. 409.913, any other state Medicaid program, or the federal Medicare program [shall constitute grounds for discipline], unless eligibility to participate in the program from which the practitioner was terminated has been restored. Cueto was in fact terminated from the state Medicaid program pursuant to section 409.913, and she had not been reenrolled therein at the time of the final hearing in this case. She is therefore guilty of the offense defined in section 456.072(1)(kk), Florida Statutes (2009). Cueto contends that she was not terminated from Medicaid "for cause" as the Department has alleged. Section 456.072(1)(kk) does not require, as a prerequisite to imposing discipline, that the Medicaid provider have been terminated for cause. Nevertheless, Cueto was terminated for cause, that being her conviction for grand theft, which crime relates to the practice of physical therapy. At the time AHCA terminated Cueto's participation as an enrolled provider, the penalty guidelines then in effect for violations of Medicaid-related laws required that the sanction of termination be imposed for a violation of section 409.913(13)(b), which statute directs AHCA to immediately terminate the participation of a Medicaid provider who has been convicted of a crime relating to the practice of the provider's profession. See Fla. Admin Code R. 59G- 9.070(8)(a)2. (2008). The same rule defined "termination" as "a twenty-year preclusion from any action that results in a claim for payment to the Medicaid program as a result of furnishing, supervising a person who is furnishing, or causing a person to furnish goods or services." Fla. Admin Code R. 59G- 9.070(2)(y). The Department might have alleged that Cueto's termination had been for cause because under the Board's current disciplinary guidelines, which took effect on June 30, 2010, a termination for cause from the Medicaid program warrants a harsher penalty than does a termination "not . . . for cause." Fla. Admin. Code R. 64B17- 7.001(1)(ff)(2010). Although this Board rule does not define "cause," AHCA's current disciplinary guidelines, which became effective on September 7, 2010, provide that a "termination pursuant to this rule is also called a 'for cause' or 'with cause' termination." Fla. Admin. Code R. 59G- 9.070(3)(p)(2010). Neither rule, however, applies in this case, which must be decided under the disciplinary guidelines in effect at the time the offense was committed. See Orasan v. Ag. for Health Care Admin., 668 So. 2d 1062, 1063 (Fla. 1st DCA 1996); Willner v. Dep't of Prof'l Reg., 563 So. 2d 805, 806 (Fla. 1st DCA 1990). Cueto was terminated from the Medicaid program in September 2009. Rule 64B17-7.001 (2007), which was in effect at that time, does not prescribe a punishment for the offense defined in section 456.072(1)(kk), Florida Statutes (2009). Cueto can be sanctioned for this offense, however, through section 486.125(1)(k), Florida Statutes (2009), which, as the Department alleged in the Administrative Complaint, provides that a violation of chapter 456 is grounds for discipline. Under the disciplinary guidelines in effect in September 2009, the range of penalties for a first offense involving section 486.125(1)(k) is "from a minimum fine of $1,000 and/or a letter of concern, up to a maximum fine of $5,000 and/or suspension of license for two years followed by two years of probation." Fla. Admin. Code R. 64B17-7.001(1)(x)(2007). (A final order has yet to be issued in DOAH Case Nos. 11-1271PL and 11-1272PL. Pursuant to section 120.569(2)(l)2., Florida Statutes, one must be issued no later than October 17, 2011.) On July 26, 2011, the parties filed a Joint Status Report in the instant case, advising that "th[is] matter is still unresolved" and a one-day hearing would be necessary. As noted above, the final hearing in this case was held on August 19, 2011. Two witnesses, Michael West and Petitioner, testified at the hearing. In addition to Mr. West's and Petitioner's testimony, three exhibits (Petitioner's Exhibit 1, and Respondent's Exhibits 1 and 2) were offered and received into evidence. With input from the parties, the undersigned set the deadline for the filing of proposed recommended orders at 20 days from the date of the filing of the hearing transcript with DOAH. The hearing Transcript, consisting on one volume, was filed with DOAH on September 6, 2011. Both parties timely filed their Proposed Recommended Orders on September 26, 2011.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order declining to deny the renewal of Petitioner's license to practice physical therapy in the absence of a renewal application,11 and finding that Petitioner has not demonstrated an entitlement to an award of attorney's fees and costs. DONE AND ENTERED this 29th day of September, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2011.
