The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
The Issue The issues are whether Respondent violated Section 480.046(1)(c), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the duty to regulate the practice of massage therapy in Florida. At all time relevant to this proceeding, Respondent was licensed to practice massage therapy, holding license No. MA0020209. In September 1997, Respondent provided massage therapy treatment on three occasions to a client, M.J. The treatment was intended to be therapeutic for injuries suffered by M.J. in an automobile accident. The last of the massage therapy sessions occurred on September 19, 1997, at the home of M.J.'s mother. M.J. subsequently filed a formal complaint with the Duval County Sheriff's Office. The complaint alleged that Respondent touched M.J.'s breast and nipple inappropriately during the September 19, 1997, massage therapy session. On November 24, 1997, the State Attorney, in and for Duval County, Florida, filed an Information, charging Respondent with misdemeanor battery in violation of Section 784.03(1)(a), Florida Statutes. In a jury trial on April 15, 1998, Duval County Court Case No. 97-66371 MM, Respondent was convicted of simple battery, a criminal violation of Section 784.03(1)(a), Florida Statutes. The above-referenced criminal conviction arose directly out of Respondent's massage therapy session with M.J. on September 19, 1997. Respondent would not have been charged with and convicted of simple battery but for Respondent's massage therapy practice on M.J. Respondent had to pay a $200 fine and $115 in court costs as a result of his criminal conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500 and assessing costs of investigation and prosecution. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2000. COPIES FURNISHED: Gary L. Asbell, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Stop 39 Tallahassee, Florida 32308 Stanley Michael Carroll 1535 San Juan Avenue Jacksonville, Florida 32210 William H. Buckhalt, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 007919. Respondent is an orthopedic surgeon, practicing in Hallandale, Florida. Respondent first met N. L. on March 6, 1985, when she came to him for treatment of injuries which she received in a motor vehicle accident on March 2, 1985. N. L. began receiving physical therapy in Respondent's office and was examined by Respondent on a regular basis. The primary medication given to N. L. by Respondent was B-12 IM. On a number of occasions, Respondent gave N. L. a prescription for valium (Diazepam). Diazepam is a Schedule IV controlled substance as defined by Chapter 893, Florida Statutes. Respondent made a notation in N. L.'s records whenever he gave her a prescription for medication and whenever he gave her a sample of medication which he had received from manufacturers' representatives. Although subsequently released from active treatment, N. L. continued to return to Respondent's office for treatment and therapy due to continued complaints and due to episodes of exacerbation of the injuries which she had previously received. Respondent saw N. L. as a patient for the last time on February 20, 1987. Respondent gave her no prescriptions for valium subsequent to that date. Thereafter, Respondent did see N. L. socially. She was a friend of his children and dated one of his sons. She was a guest in Respondent's home on a number of occasions. On occasion, she accompanied his sons when they came to Respondent's office. On several occasions, she flew with Respondent in his airplane. N. L. was never drunk or "stoned" when she was in Respondent's presence. Respondent never saw any evidence that N. L. was an alcohol and/or drug abuser. On or about July 25, 1989, N. L. died as a result of a car accident. Some Diazepam was found in her blood at the time of her death. Her blood also revealed a high alcohol content. Respondent kept his blank prescription pads in more than one location in his office. He kept some in his desk and kept some in a cabinet in the hallway across from the examining rooms. According to the records of Eckerd Drug Store, on May 18, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled in increments on May 18 and May 19 by the pharmacists working at Eckerd. According to the records of Eckerd Drug Store, on June 13, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled on June 13, 1989, was refilled on June 27, 1989, and was refilled on July 18, 1989, by the pharmacists working at Eckerd. Although the signature on the two prescriptions described above is similar to Respondent's, Respondent did not sign or issue those prescriptions to N. L. C. F. is a 28-year-old female who slipped and fell in her apartment on August 23, 1989. She sought medical treatment immediately following her fall. She then retained an attorney to represent her in the civil litigation she would be filing as a result of her fall, and that attorney referred her to Respondent for treatment and physical therapy. Respondent's first contact with C. F. occurred on her first visit to his office on August 31, 1989. At that time, Respondent performed a full physical examination on C. F. and started her on a course of physical therapy. It was not Respondent's practice to see each patient every time that patient came in for physical therapy. Rather, Respondent would see such patients once a week, either in the physical therapy room or in one of his examining rooms. On November 2, 1989, Respondent saw C. F. in the therapy room. C. F. listed her complaints, and Respondent examined her and dictated notes for her medical chart. C. F. asked Respondent if she could talk to him in a different room. She was placed in one of the examining rooms. When Respondent came into the examining room, C. F. asked if the door could be closed and if it could be secured. Respondent then closed the sliding door to the examining room, securing it with a pin. C. F. then told Respondent that she was "very good at giving head." Respondent replied that that was nice but he was busy. C. F. continued to joke and was laughing when she left the examining room. Thinking it insignificant, Respondent gave no further thought to the banter which had taken place. As C. F. left the office, she stopped at the front desk and made an appointment for a physical therapy treatment the following week. On November 7, 1989, C. F. arrived for her scheduled physical therapy treatment. She was not scheduled to see Respondent on that date. While C. F. was lying on the traction table, she asked the physical therapist if Respondent were in the office that day. The therapist responded that he was and asked if C. F. needed to speak to him. At first, C. F. said she did not need to see Respondent, but she later became insistent that Respondent see her. By the end of C. F.'s therapy session, C. F. was demanding that she be seen by Respondent, taking the position that she would not leave without seeing him even if that meant that she had to wait all day. The therapist told Respondent that C. F. was demanding to see him, and Respondent told the therapist to put C. F. in an examining room. Respondent then became busy, and the therapist did not have an opportunity to tell Respondent that C. F. was acting "a little eerie." C. F. was taken to an examining room. She waited for approximately an hour before Respondent was able to see her. When Respondent entered the examining room, C. F. asked him to close the door and motioned to him to lock it by putting the locking pin in place. Respondent closed the door and inserted the pin. C. F. walked over to Respondent, abruptly opened his belt, opened his pants, pulled his pants down, pulled down his underwear, pulled up his shirt, and told Respondent to "hold this," referring to his penis. C. F. then told Respondent that she had to get a napkin. She turned, took two steps toward her pocketbook, reached in, pulled out a camera, and instantly shot two pictures of Respondent. She then ran to the door shouting for her husband whom she had brought with her to her therapy session on that day. Respondent reached for her pocketbook, but C. F. pulled the pin out of the door, opened the door, and ran out still loudly calling her husband's name. C. F. and Respondent were alone in the examining room for no more than two minutes. By this time, her husband Patrick had entered the examining room area, where he immediately attacked the x-ray technician, placing his hands around the x-ray technician's throat and attempting to strangle him. C. F. told her husband he had gotten the wrong doctor, and Patrick then ran to Respondent and placed a stranglehold on him. C. F. and Patrick left Respondent's office, stopped by the gas station where C. F. worked, and then went to the Hallandale police station. Within 24 hours from the time that C. F. seduced Respondent in his office, she had contacted the attorney representing her in her "slip and fall" lawsuit regarding his filing an action against Respondent, had had a "falling out" with that attorney over him representing her, had hired a different attorney to file a lawsuit against Respondent, had been referred by that second attorney to a third attorney who would represent her along with the second attorney in suing Respondent, had been interviewed by a local television station at the office of one of her new attorneys, her interview and the interview with her new attorneys had been shown on both the early evening and the late evening news, and contact had been made between C. F.'s new attorneys and Respondent's attorney regarding C. F.'s demand for money from Respondent. No civil suit was ever filed by C. F. against Respondent. Numerous contacts took place between C. F.'s attorneys and Respondent's attorney. Additionally, C. F.'s attorneys contacted the Department's investigator a number of times attempting to obtain confidential information from the investigator to be used in C. F.'s claim against Respondent. Over the next several months, C. F.'s attorneys continued to demand money from Respondent and threatened Respondent with additional publicity. In the face of C. F.'s threats of expanded publicity against Respondent, a settlement was entered into in February of 1990. Under the terms of that settlement, C. F. received a cash payment from Respondent's medical malpractice carrier with an "extremely nominal" contribution from Respondent. Respondent was immediately devastated by his encounter with C. F. on November 7, 1989. He walked down the hallway in his office building and made an appointment to see Dr. Burton Cahn, a psychiatrist practicing in that building. He was not able to see Dr. Cahn until November 9, 1989. Dr. Cahn began treating Respondent for his depression, seeing Respondent at first twice a week and then once a week. Respondent was still seeing Dr. Cahn regularly at the time of the final hearing in this cause. Respondent voluntarily ceased practicing medicine on November 9, 1989, to avoid the possibility that the problems with C. F. would distract him from providing good quality medical care. He resumed his office practice on March 7, 1990, with Dr. Cahn's full approval and following Dr. Cahn's suggestion that Respondent never see a female patient without another female in the room. Respondent had ceased performing hospital surgical procedures by approximately August of 1989, two months before the incident with C. F., since he was not doing much surgery in a hospital setting and had someone else in his office who was performing hospital surgical procedures. When he resumed his office practice on March 7, 1990, Respondent did not resume performing hospital surgical procedures since he thought he might be "too rusty". Respondent is able to practice orthopedic surgery. He does not represent a danger to himself or to the people in the community. A further suspension of Respondent from his practice would be of no benefit to him or to the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty and dismissing the Amended Administrative Complaint filed against him. DONE and ENTERED this 18th day of October, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of October, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1565 Petitioner's proposed findings of fact numbered 1-4, 6-9, 22, 28, and 31 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 10, 13-18, 23, and 24 have been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 25, 26, 29, 30, and 35 have been rejected as not being supported by the weight of the credible and/or competent evidence in this cause. Petitioner's proposed findings of fact numbered 19, 27, and 36-41 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 32-34 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's four unnumbered paragraphs contained in the Findings of Fact section of his post hearing Report and Recommendation of Referee have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Bogenschutz, Esquire 633 Southeast Third Avenue Fort Lauderdale, Florida 33301
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3 Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places. The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are not sufficient to justify the physical therapy which was ordered by the Respondent.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence, Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and, Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 25th day of January, 1999.
