Findings Of Fact Based upon the stipulation filed in this cause, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: The Respondent, Randall E. Pitone, M.D., is a medical doctor licensed (license number ME 0029098) by the State of Florida since 1976. Respondent is a diplomate in psychiatry having received certification from the American Board of Psychiatry and Neurology. At all times material to the allegations of this case, Respondent was in the practice of psychiatry in the State of Florida. Respondent has been affiliated with or authorized to practice in a number of hospitals in the Pinellas County area. He enjoys a good reputation among the community of practicing psychiatrists and has covered for several of them during the course of his practice. The Respondent became Patient 1's treating psychiatrist in 1982 when the patient was almost 18 years of age. Patient 1 has a borderline personality disorder and other problems for which she required treatment. In order to more effectively provide treatment for borderline patients, Respondent attended at least two courses related to borderline personality disorder during the early 1980s. From September, 1982 through May, 1988, Respondent treated Patient 1 with individual psychotherapy. During this time, Patient 1 was hospitalized on several occasions and Respondent counseled with her within the hospital setting and at his office. Borderline patients are typically very needy, seductive, and manipulative in their approach to others. During her period of treatment Patient 1 frequently attempted to initiate a romantic relationship with Respondent who diplomatically refused her advances. On each of these occasions, Respondent explained to Patient 1 that he could not have a romantic relationship and continue therapy. Also during this period, Respondent was married and devoted to his family. In May, 1988, Respondent and Patient 1 ended their formal physician- patient relationship. Patient 1 was not sincerely pursuing therapy. Additionally, she had a new boyfriend with whom she seemed happy. Respondent encouraged her to seek therapy but she mistakenly believed that she did not need it. Although she would periodically drop by to visit with Respondent, she did not make appointments for therapy. Nor did she obtain therapy from another psychiatrist despite Respondent's encouragement for her to do so. Respondent's wife left him sometime in 1988. Her departure was very difficult for Respondent. The couple divorced in June, 1988, and Respondent's former wife remarried shortly thereafter and moved to Georgia. Respondent's children resided with him until sometime in 1989 when they moved to their mother's home. Subsequently, Respondent allowed Patient 1 to move into his home. She resided with him from June, 1989 until April, 1990. Throughout this period of cohabitation, Respondent included Patient 1 in his family activities. She went to his brother's home with him for Christmas and went on a cruise to Jamaica with his relatives. Respondent did not hide their relationship from his family or friends. During this period Respondent and Patient 1 engaged in sexual intercourse. Patient 1 has been hospitalized on several occasions since 1982. During one such hospitalization, on or about October 30, 1988 (after formal therapy had ended), Dr. Helm consulted with the Respondent regarding Patient 1's suspected drug abuse. Patient 1 has a serious addiction to alcohol, cocaine, and crack cocaine. This addiction dates at least as far back as the summer of 1989, and perhaps earlier. Respondent knew of Patient 1's addiction to cocaine and of her abuse of other substances. Respondent prescribed medications for Patient 1 in a misguided effort to wean her from street drugs. Whenever Respondent refused to give Patient 1 prescriptions, she would become outraged and destructive. On one such occasion, Patient 1 exited the car in which the couple was travelling and bolted in front of an oncoming truck. As a result Patient 1 was hospitalized with a broken pelvis. Between May, 1988, and March, 1990, Respondent wrote or authorized the prescriptions listed in attachment A for Patient 1. These prescriptions were given to Patient 1 despite the fact that she was no longer formally receiving psychotherapy from Respondent. Moreover, many of the prescriptions issued are not of the type generally associated with the treatment of psychiatric patients since they are more commonly associated with pain relief. Amitriptyline is a legend drug. Dalmane is a brand name of flurazepam, a legend drug and controlled substance. Valium is a brand name of diazepam, a legend drug and controlled substance. Xanax is a brand name of alprazolam, a legend drug and controlled substance. Darvocet is a brand name of a compound containing propoxyphene, a legend drug and controlled substance. Tylenol #3 and Tylenol #2 are brand names of acetaminophen or apap with codeine, legend drugs and controlled substances. Percodan is a brand name of oxycodone with aspirin, a legend drug and controlled substance. Percocet is a brand name of oxycodone with acetaminophen or apap, a legend drug and controlled substance. Legend drugs are required by federal or state law to be dispensed only on a prescription. Respondent inappropriately prescribed legend drugs/controlled substances to Patient 1. Respondent prescribed drugs for Patient 1 after they were living together and engaging in sexual relations. The types and quantities of prescriptions written by Respondent for Patient 1 were not justified by examinations and records maintained by the Respondent, were not issued in the course of medical practice, and were clearly excessive. By prescribing the drugs listed in attachment A, Respondent failed to provide Patient 1 with that level of care, skill and treatment, which a reasonably prudent similar physician recognizes as acceptable under the conditions and circumstances of this case. Respondent also failed to seek consultation in connection with his concerns over Patient 1. Instead, Respondent set himself up as her sole provider and savior. This action was medically inappropriate and further evidences Respondent's loss of objectivity in this instance. In effect, Respondent became a patient in need of treatment as a result of his erroneous and misguided efforts to assist Patient 1. On April 11, 1990, an order of emergency restriction of Respondent's license was issued by Larry Gonzalez, acting as Secretary of the Department. That order placed specific restrictions on the Respondent's license which include: -the prescription of controlled substances utilizing sequentially numbered triplicate prescriptions; -the review of each prescription by a supervisory physician; -the prohibition of providing medical services to Patient 1; and -the submission of monthly reports by a monitoring physician which includes specific information regarding Respondent's practice, any problems, a review of prescriptions and patient records. To date, Respondent has complied with the restrictions placed on his license. Additionally, Respondent has sought and obtained psychiatric counseling in connection with his errors in thinking related to his relationship with Patient 1. Respondent developed a rescue fantasy in which he perceived that he alone could assist Patient 1 recover from her illnesses. This was not a medically sound approach to the dilemma within which Respondent became embroiled. As Respondent fell in love with Patient 1, he lost his professional perspective and undertook this ill-fated rescue of her. An examination of Respondent's medical records does not suggest that the activities which gave rise to the allegations of this case have occurred regarding other patients. From the circumstances of this case, it is unlikely another incident or series of incidents of this type will recur. Sexual activity between a psychiatrist and his patient has detrimental effects on the patient. In this instance, that conduct had detrimental effects on both the Respondent and Patient 1. Since Respondent fell prey to Patient 1's manipulative nature, his judgment became impaired and she was able to orchestrate an inappropriate response from Respondent. It cannot be found, however, that Respondent used their relationship to induce Patient 1 to engage in sexual activity.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine enter a final order finding the Respondent guilty of violating Sections 458.331(1)(m), (q), and (t), Florida Statutes, and imposing the following penalties: suspension of the Respondent's license for a period of one year during which time the Respondent shall continue counseling, followed by a two year period of probation under the terms set forth in the emergency order issued April 11, 1990, together with an administrative fine in the amount of $5,000.00. DONE and ENTERED this 14 day of November, 1990, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14 day of November, 1990. APPENDIX TO CASE NO. 90-3276 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 20 are accepted. With regard to paragraph 21 it is accepted that Respondent provided the prescriptions as described, however, he had formally ended psychotherapy of Patient 1 in May, 1988. It was inappropriate for him to issue the prescriptions. Paragraphs 22A. and 22C. are accepted. Paragraph 22D. is rejected to the extent that it finds Respondent did not maintain appropriate records, otherwise, rejected as contrary to the weight of the credible evidence. Note: there is no paragraph 22B. Paragraph 23 is accepted. Paragraph 24A. is accepted. Paragraphs 24B. and 24C. are rejected as contrary to the weight of credible evidence. With regard to paragraph 25 it is accepted that Respondent prescribed substances for Patient 1 inappropriately and excessively, otherwise the paragraph is rejected as contrary to the weight of the evidence or a conclusion of law. Paragraphs 26, 27, 30 and 31 (because it allowed her to manipulate Respondent into prescribing inappropriately--he should have been the physician not a co-patient) are accepted. Paragraphs 28 and 29 are rejected as contrary to the weight of credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 3 are accepted. To the extent addressed in findings paragraphs 3 through 7, Respondent's paragraphs 4 through 9 are accepted; otherwise rejected as irrelevant or a recitation of testimony. With the exception of the last sentence, paragraph 10 is accepted. The last sentence is rejected as speculative or conjecture--it is accepted that Respondent was in a stress-filled, emotional situation. Paragraphs 11 through 14 are accepted. Paragraph 15 is rejected as irrelevant. Paragraph 16 is accepted but is irrelevant. Paragraph 17 is accepted. Paragraphs 18 through 19 are accepted. Paragraphs 20 through 23 are rejected as recitation of testimony but see findings of fact paragraphs 27, 28, and 29. Paragraphs 24 through 28 are rejected as recitation of testimony. With regard to paragraph 29 it is accepted that the Respondent does not pose a threat to the public under his current circumstances. Otherwise, paragraph 29 is rejected as recitation of testimony or irrelevant. Paragraph 30 is accepted. Paragraph 31 is rejected as recitation of testimony. Paragraph 32 is accepted. Paragraph 33 is accepted. ATTACHMENT A Date Drug Prescribed 5/14/88 Dalmane 6/02/88 Valium 7/15/88 Percodan 7/20/88 Percodan 7/27/88 Xanax 7/27/88 Percodan 8/12/88 Percodan 9/06/88 Percodan 9/13/88 Zantac 9/23/88 Percodan 10/7/88 Darvocet N-100 10/29/88 Xanax 11/18/88 Percodan 01/6/89 Xanax 1 mg 01/09/89 Xanax 1 mg 01/10/89 Percodan 01/11/89 Xanax 01/16/89 Xanax 01/18/89 Xanax 01/21/89 Xanax 01/20/89 Tylenol 3 01/24/89 Tylenol 3 01/25/89 Tylenol 3 01/26/89 Xanax 01/31/89 Xanax 02/02/89 Percodan 02/04/89 Xanax 1mg 02/04/89 Percodan 02/04/89 Xanax 1mg 02/09/89 Percodan 02/10/89 Xanax 02/10/89 Percodan 03/03/89 Xanax 03/03/89 Percodan 03/13/89 Percodan 03/14/89 Xanax 1mg 03/17/89 Percodan 03/20/89 Xanax 03/24/89 Xanax 03/24/89 Percodan 03/27/89 Percodan 03/27/89 Xanax 03/29/89 Percodan 03/31/89 Percodan 04/07/89 Xanax 1mg 04/10/89 Percocet 5mg 04/11/89 Percodan 04/21/89 Percodan 04/24/89 Percodan 04/25/89 Percodan 04/25/89 Xanax 04/26/89 Percodan 04/28/89 Percodan 04/28/89 Xanax 04/29/89 Percodan 05/01/89 Xanax 05/02/89 Percodan 05/04/89 Percodan 05/05/89 Percodan 05/09/89 Xanax 05/11/89 Xanax 05/14/89 Xanax 1 mg 05/18/89 Xanax 1 mg 05/20/89 Xanax 1 mg 06/06/89 Xanax 1 mg 06/08/89 Percodan 06/09/89 Xanax 1 mg 06/09/89 Percodan 06/14/89 Xanax 1 mg 06/14/89 Percodan 06/16/89 Xanax 1 mg 06/23/89 Xanax 1mg 06/24/89 Percodan 06/26/89 Percodan 07/01/89 Xanax 07/07/89 Xanax 1 mg 07/07/89 Percodan 07/10/89 Percodan 07/15/89 Percodan 07/17/89 Percodan 07/20/89 Percodan 07/21/89 Valium 10 mg 07/21/89 Percodan 07/28/89 Percodan 07/30/89 Valium 07/31/89 Percodan 08/02/89 Percodan 08/04/89 Percodan 08/05/89 Valium 10 mg 08/07/89 Valium 10 mg 08/07/89 Percodan 08/09/89 Percodan 08/20/89 Valium 10 mg 09/01/89 Percodan 09/04/89 Valium 09/06/89 Percodan 09/19/89 Percodan 09/22/89 Valium 09/22/89 Percodan 09/28/89 Percodan 10/01/89 Percodan 10/02/89 Percodan 10/02/89 Valium 10 mg 10/04/89 Valium 10 mg 10/04/89 Percodan 10/05/89 Xanax 1 mg 10/06/89 Percodan 10/13/89 Darvocet-N. 100 10/13/89 Valium 10/13/89 Tylenol #2 10/17/89 Tylenol #2 10/19/89 Valium 5 mg 10/20/89 Tylenol #3 10/24/89 Tylenol #3 10/24/89 Valium 5 mg 10/25/89 Tylenol #3 10/26/89 Percocet 10/30/89 Percocet 10/30/89 Tylenol #4 10/30/89 Valium 10 mg 11/03/89 Percodan 11/17/89 Percodan 11/17/89 Valium 10 mg 11/24/89 Valium 10 mg 11/24/89 Percocet 11/27/89 Percocet 11/29/89 Percocet 01/02/90 Valium 10 mg 01/02/90 Percodan 01/12/90 Tylenol #3 01/12/90 Valium 10 mg 01/13/90 Xanax 1 mg 01/17/90 Tylenol #3 02/04/90 Xanax 1 mg 02/17/90 Percodan 02/20/90 Percodan 02/28/90 Percodan 03/10/90 Percodan 03/16/90 Percodan 03/17/90 Percodan COPIES FURNISHED: Bruce D. Lamb Chief Trial Attorney Department of Professional Regulation 730 Sterling Street, Ste. 201 Tampa, Florida 33609 Grover C. Freeman FREEMAN, LOPEZ & KELLY, P.A. 4600 West Cypress, Ste. 500 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether respondent acted fraudulently, arbitrarily, illegally, or dishonestly in initially awarding the contract for Bid No. 92-JEFFERSON-5720 to intervenor and then proposing to reject all bids.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The operative facts giving rise to this dispute are not in dispute. On September 4, 1992, respondent, Department of Corrections (DOC), issued Invitation to Bid No. 92-JEFFERSON-5720 (ITB) inviting various vendors to submit proposals for implementing a drug treatment center program at Jefferson Correctional Institution in Jefferson County, Florida. The ITB called for the sealed bids to be filed no later than September 22, 1992, and to be evaluated by a committee composed of various DOC employees. Thereafter, the committee would make a recommendation to a DOC assistant secretary who would then make a recommendation to the secretary. The ITB called for the contract to be awarded to the vendor receiving the highest numerical score. In response to the ITB, proposals were timely submitted by petitioner, Disc Village, Inc., intervenor, A Life Recovery Center, Inc., and three other vendors. After the proposals were evaluated by the committee, petitioner was assigned a score of 84.93 points while intervenor received a score of 82.50 points. Accordingly, the committee prepared a report recommending that the contract be awarded to petitioner. This report was forwarded to a DOC assistant secretary who recommended that the committee's recommendation be rejected and that the contract be awarded to intervenor. This recommendation was approved by the DOC secretary and on November 12, 1992, petitioner received notice that DOC intended to award the contract to intervenor. That prompted petitioner to file a protest. In its protest, petitioner raised the single ground that DOC had materially deviated from the ITB by refusing to award the contract to the bidder with the highest score and thus acted fraudulently, arbitrarily, illegally, or dishonestly. The Requirements Under the ITB The ITB called for "proposals to implement a Drug Treatment Center program at Jefferson Correctional Institution." The center would be designed to treat up to seventy-two female inmates who are assessed to be in need of substance abuse treatment. When the ITB was issued, DOC had not prepared an estimated price for the range of services being solicited nor had it established a price ceiling beyond which it could not or would not fund the contract. Section 4.6 of the ITB provided that "the vendor with the highest score will be awarded the contract." This assumes, of course, that the bidder with the highest score was responsive. According to section 4.7 of the ITB, points would be awarded using the following evaluation criteria and corresponding point values: experience and qualifications of bidder - 25 points general substance abuse treatment - 25 points price - 50 points Criteria other than price were included to insure that the provider would be experienced and qualified. Therefore, under the express terms of the ITB, the contract would be awarded to a vendor based upon its technical skills, experience, quality of service and cost rather than on price alone. After the proposals were filed, a committee composed of DOC employees and appointed by the DOC secretary would evaluate the proposals and assign scores to each vendor. Finally, section 4.8 of the ITB provided in relevant part as follows: The Department reserves the right to reject all bids received in response to this request when to do so is in the Department's best interest. Unless it is in the "best interest" of DOC to do otherwise, the agency has consistently awarded contracts using the above evaluation criteria. The Evaluation Process Both petitioner and intervenor filed responsive bids and are qualified to perform the services required under the contract. Indeed, in their requests for hearing, neither party contended that the other's bid was nonresponsive. Moreover, prior to final hearing, the agency did not contend that nonresponsiveness was an issue in this proceeding. That is to say, to the extent there may have been irregularities in either bid, the agency found them to be minor and they were waived. Therefore, any claims raised during the hearing that the bids were nonresponsive are deemed to be untimely and irrelevant. After the sealed bids were opened, a committee evaluated them and assigned scores of 84.93 and 82.50 to petitioner and intervenor, respectively. The other three vendors filing responses received lower scores. The manner in which the proposals were evaluated was not raised as an issue by the parties and is not in dispute. In accordance with section 4.6 of the ITB, the committee drafted a written recommendation to a DOC assistant secretary recommending that the contract be awarded to petitioner, the vendor with the highest score. After receiving the committee recommendation, the assistant secretary prepared an intraoffice memorandum to the DOC deputy secretary on October 29, 1992, in which he acknowledged that petitioner had the highest score. However, he noted that intervenor's price over the three year contract period was $103,000 less than the price proposed by petitioner. He also noted that by awarding the contract to intervenor, DOC would have the opportunity to use a new provider. Thus, he recommended that the award for drug treatment be given to A Life Recovery System as this vendor is lower in cost and will provide the department the opportunity to gain experience with additional drug treatment providers. By gaining experience with additional providers we can improve the quality of our program and obtain more competitive pricing for future contracts. This recommendation was later accepted by the DOC deputy secretary (acting on behalf of the secretary) and a letter advising the parties that the contract would be awarded to intervenor was mailed on November 12, 1992. Thereafter, petitioner's protest was filed and the matter was transmitted to the Division of Administrative Hearings (DOAH) by letter dated December 4, 1992. On December 11, 1992, or after DOAH obtained jurisdiction in this cause, DOC advised the parties by letter that: it has decided to withdraw the bid award to A Life Recovery Center, Inc. and reject all bids submitted. No reason for this action was given in the letter. However, deposition testimony of the DOC deputy secretary indicates that DOC realized it made a mistake in deviating from the terms of section 4.6 and that an award of the contract to intervenor could not be justified. Ostensibly for the purpose of correcting the mistake, but also to avoid awarding the contract to petitioner, DOC then proposed to reject all bids. At the same time, DOC filed a motion with DOAH seeking to dismiss petitioner's protest as being moot given the content of its December 11 letter. As will be discussed in the conclusions of law portion of this Recommended Order, the motion was denied but DOC was allowed to present evidence at final hearing in support of its newly adopted change in position. Petitioner's Alleged Involvement in Drafting the ITB On January 13, 1993, or the day before the final hearing, DOC (and intervenor) raised for the first time the contention that petitioner was ineligible to receive the contract pursuant to the terms of Subsection 287.057(16), Florida Statutes. Basically, DOC contended that petitioner "has been involved in the drafting of the evaluation criteria used to award the contract in this case" and thus had no standing to file a protest. As the facts unfolded at hearing, and although not a prior concern in the bid process, DOC contended for the first time that the Florida Alcohol and Drug Abuse Association (FADAA or Association), of which petitioner is a member, influenced, either directly or indirectly, the drafting of portions of the ITB and therefore petitioner was disqualifed under subsection 287.057(16) from filing a bid and receiving a contract. The Association is a non-profit organization comprised of at least ninety drug treatment providers throughout the state. The record indicates that there may be several hundred other providers, including intervenor, who are not members of the organization. For the last twelve years, FADAA has maintained a continuing dialogue with DOC concerning drug abuse treatment for offenders in the correctional system. Most of the discussions with DOC were by FADAA's Criminal Justice Committee, a committee that works on issues dealing with adult criminal justice clients, or its Board of Directors. Petitioner's executive director is or has been a member of both the committee and the board of directors and also serves as the current president of FADAA. The nature of the discussions with DOC were very general in nature and nonspecific. They included such recommendations as DOC using specific instead of general criteria in its invitations to bid so that proposals could be scored in a competitive process, requiring bidders to be licensed by the Department of Health and Rehabilitative Services, and DOC giving preference to "community- based providers". The Association's assistant executive director was the individual who led most of the discussions and meetings with DOC personnel, all of which were open to the general public. At hearing, DOC could not point to a single provision within the ITB that was specifically influenced by discussions with FADAA. Indeed, there was no evidence that FADAA, rather than DOC personnel, was responsible for any specific language in the ITB. Rather, DOC's concern was with the number of meetings FADAA had with DOC staff, the ardor with which FADAA advocated its position, and a belief, albeit erroneous, that the ITB may have been drafted in favor of FADAA members. Therefore, it is found that petitioner did not participate in the drafting of any portion of the ITB nor did it influence any DOC employee who had that responsibility. Thus, it is eligible to file a proposal in response to the ITB. Was the Process Arbitrary? The initial decision to award the contract to intervenor, the vendor with the second highest score, and to ignore the provisions of section 4.6, was based largely on monetary considerations. That is, intervenor's proposal would result in $103,000 in savings over a three year period when compared to petitioner's bid. DOC also believed that intervenor could adequately deliver the required services within the financial perameters outlined in its proposal. At the same time, and even though it was not a specific criterion in the ITB, DOC concluded that by allowing a new provider such as intervenor into the arena, it would promote more competition on future contracts. This consideration was grounded on the fact that petitioner has been in business for over twenty years and currently provides services to some thirteen or fourteen DOC facilities under other contracts. Conversely, intervenor is a firm established only two years ago and has no prior experience with DOC. After the initial decision was made, DOC recognized that it erred in awarding the contract to the vendor with the second highest score. In an attempt to correct that mistake, and to avoid awarding the contract to petitioner, who was entitled to receive the contract under the ITB, DOC took the position that all bids should be rejected. In taking this action, DOC relied on the same reasons that it used in rejecting the evaluation committee's recommendation. However, DOC contended that while these considerations could not be used to award the contract to intervenor, they could be used to trigger section 4.8 of the ITB, which allows it to reject all bids when to do so is in DOC's "best interest." According to DOC, this provision gives it the prerogative to override all other provisions in the ITB, including section 4.6, which mandates that the contract be awarded to the vendor with the highest score. DOC concedes that cost savings and increased competition are not identified as criteria in the ITB and could not justify an award of the contract to intervenor. Even so, DOC considers these factors to be relevant in the context of section 4.8 and an adequate basis for rejecting all bids. But by taking the position that lower rated providers with no prior DOC experience should be used in order to promote competition, DOC was giving a competitive advantage to that class of vendors. While DOC may consider this preferential treatment to be in its "best interest", it is nonetheless an arbitrary reason and subverts the bidding process. Similarly, DOC's contention that petitioner's bid was too high must be viewed in the context of its earlier actions. More specifically, DOC did not prepare a pre-bid estimate of the cost of services or establish a price ceiling beyond which it would not award a contract. At the same time, there was no evidence that DOC could not fund the contract at the level proposed by petitioner, or that due to budget shortfalls DOC has no monies to fund the contract and no longer intends to establish a center. To the contrary, the evidence shows that after all bids are rejected, DOC still intends to award a contract for the center. In addition, there is insufficient evidence to support a finding that by rejecting all bids, and using a "negotiation" process in lieu of the bidding process, DOC could reasonably expect to achieve any material price savings. Therefore, by deviating from the clear terms of the ITB, and relying on arbitrary considerations as a reason for rejecting all bids, DOC subverted the bidding process.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the contract for Bid No. 92-JEFFERSON-5720 to petitioner. DONE AND ORDERED this 26th day of February, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 26th day of February, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7321BID Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 4. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 2. 7-9. Partially accepted in finding of fact 6. 10-11. Partially accepted in finding of fact 7. 12. Partially accepted in finding of fact 13. 13. Partially accepted in finding of fact 6. 14. Partially accepted in findings of fact 14 and 15. 15. Partially accepted in finding of fact 8. 16. Partially accepted in finding of fact 6. 17-18. Partially accepted in findings of fact 14 and 15. 19. Rejected as being unnecessary. 20. Partially accepted in findings of fact 14 and 15. 21. Partially accepted in finding of fact 5. 22. Rejected as being unnecessary. 23. Partially accepted in finding of fact 5. 24-26. Partially accepted in finding of fact 4. 27. Rejected as being unnecessary. 28. Rejected as being irrelevant. 29-30. Partially accepted in finding of fact 9. Rejected as being contrary to the evidence. Partially accepted in finding of fact 9. Partially accepted in finding of fact 13. Partially accepted in finding of fact 3. Rejected as being unnecessary. 36-46. Partially accepted in findings of fact 10-12. Partially accepted in finding of fact 10. Partially accepted in finding of fact 6. Respondent: 1-4. Partially accepted in finding of fact 1. 5-6. Partially accepted in finding of fact 2. 7-9. Partially accepted in finding of fact 7. 10-14. Partially accepted in finding of fact 6. 15. Partially accepted in finding of fact 4. 16. Partially accepted in finding of fact 5. 17-18. Partially accepted in finding of fact 6. 19-21. Partially accepted in finding of fact 7. 22. Partially accepted in finding of fact 8. 23. Partially accepted in finding of fact 2. 24. Rejected as being unnecessary. 25. Partially accepted in finding of fact 9. 26. Covered in preliminary statement. 27. Partially accepted in finding of fact 2. 28. Covered in preliminary statement. 29. Rejected as being unnecessary. 30. Partially accepted in finding of fact 5. 31-32. Partially accepted in finding of fact 4. 33. Partially accepted in finding of fact 5. 34-35. Rejected as being unnecessary. 36. Covered in preliminary statement. 37-40. Rejected as being unnecessary. 41-52. Partially accepted in findings of fact 14 and 15. Partially accepted in finding of fact 10. Rejected as being contrary to the evidence. Rejected as being unnecessary. 56-82. Rejected as being irrelevant and unnecessary. Partially accepted in finding of fact 2. Rejected as being unnecessary. 85-98. Rejected as being irrelevant and unnecessary. Partially accepted in findings of fact 14 and 15. Partially accepted in finding of fact 9. Partially accepted in finding of fact 6. 102-103. Partially accepted in finding of fact 9. 104-106. Rejected as being unnecessary. Partially accepted in findings of fact 14 and 15. Partially accepted in finding of fact 9. 109-110. Rejected as being unnecessary. Rejected as being irrelevant. Partially accepted in finding of fact 6. Partially accepted in finding of fact 12. Rejected as being contrary to the evidence. Partially accepted in finding of fact 7. 116-117. Rejected as being unnecessary. Partially accepted in finding of fact 13. Partially accepted in findings of fact 14 and 15. 120-146. Rejected to the extent they conflict with findings of fact 10-12. Intervenor: Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. 3-4. Partially accepted in finding of fact 6. Partially accepted in finding of fact 4. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. 8-9. Partially accepted in finding of fact 8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 13. Rejected as being unnecessary. Partially accepted in findings of fact 14 and 15. 14-23. Rejected as being irrelevant and unnecessary. 24-25. Partially accepted in findings of fact 14 and 15. Partially accepted in finding of fact 8. Partially accepted in findings of fact 14 and 15. Partially accepted in finding of fact 9. 29-47. Rejected to the extent they conflict with findings of fact 10-12. Note - Where proposed findings have been partially accepted, the remainder have been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Ronald W. Brooks, Esquire 863 East Park Avenue Tallahassee, FL 32301 Rex D. Ware, Esquire Vikki R. Shirley, Esquire Post Office Box 1794 Tallahassee, FL 32302 Steven S. Ferst, Esquire 2601 Blairstone Road Tallahassee, FL 32399-2500
Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $3,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed March 26, 2015 11:09 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 2U day of Maca , 2015, aw, Elizdyeth’Dudgk{ Secretary y for H€ Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order, was served on the below-named persons by the method designated on this Debit Aer Cc ZL. , 2015. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Finance & Accounting (Electronic Mail) Revenue Management Unit (Electronic Mail) David Selby, Assistant General Counsel Louis F. Gerrard, President Office of the General Counsel Grace Manor at Lake Morton, LLC Agency for Health Care Administration c/o Mainstay Financial Services (Electronic Mail) 5578 Commercial Blvd. NW Winter Haven, FL 33880 (U.S. Mail) J. Davis Connor, Esq. Peterson & Myers, P.A. 225 East Lemon Street Lakeland, FL 33802-4628 (U.S. Mail) STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION Petitioner, . . CASE NO. 2013013450 vw a 2014002084 GRACE MANOR AT LAKE MORTON, LLC, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint : against the Respondent, Grace Manor at Lake Morton, LLC (“Respondent”), pursuant to Sections 120,569 and 120.87, Fla. Stat. (2013), and alleges: ‘This is an action against an assisted living facility (“ALF”) to impose a $2,000 fine for one State Class Il violation (Count 1) and a $ 1,000 fine for an uncorrected State Class TI violation (Count I). SS “JURISDICTIONAND VENUE ss— 1. The Agency has jurisdiction pursuant to Sections 20.42, 120.60, and Chapters 408, Part II, and 429, Part I, Fla. Stat. (2013). 2, Venue lies pursuant to Florida Administrative Code (“F.A.C.”) Rule 28-106.207. 1 EXHIBIT - 1 a oemec eae rena nipnpintetineccpinat: tty uinepiman menttinie manent pasa pammemnat ety arr sec nmmpematest ean neem at tt CT BE PARTIES 3. The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of all applicable State statutes and rules governing ALFs pursuant to Chapters 408, Part IL, and 429, Part ], Fla, Stat., and Chapter 58A-5, F.A.C., respectively. 4,, Respondent operates a 50 bed ALF at 610 East Lime St, Lakeland, FL 33801, Standard license #5217. 5, Respondent was at all times material hereto.a licensed facility under the licensing authority of the Agency and was required to comply with all applicable rules and statutes, COUNT I - $2,000 CLASS I FINE (Case No. 2013013450; State Tag A0030: Resident Care - Rights & Facility Procedures) 6 The Agency re-alleges and incorporates paragraphs 1-5 asif fully set forth herein. 7. The Agency’s surveyor conducted an unannounced complaint investigation (CCR 2013008974) on 8 October, 2013, 8. The surveyor learned this information during the survey: _-a,-Based_on interviews and-a-record-reviews, the facility failed-to ensure that Resident #1,-an-85-—— Sanne year old man, with received appropriate medical care in a timely manner which led to delayed medical care and extreme continual pain. b. Phone interview with Staff ‘A’, a former med tech/caregiver, on 10/9/13 at about 4:40 pm. She stated that the last night that Resident #1 was sent to the hospital, Staff “B’ (another - ‘categiver) and she were working, They did their final rounds. Resident #1 came.out about 10:30 - i 11:30 pm and complained about a burning, like a hot rod was in his eye. She called the resident care coordinator (RCC) and told her what was going on. She asked the RCC if she could give him a i brand name medication for Acetaminophen that he had scheduled for later in the moming. The RCC said Staff “A? wasn't supposed to but she could just this one time. Staff ‘A stated Resident #1 was hurting. She could tell he was in pain by his demeanor, About 11:30 to 12:30 am he started vomiting when he was in the recliner. He. was in the recliner so they could keep an eye on him. She called the RCC again and she said just keep an eye on him and she would deal with him in the morning. The RCC told Staff ‘A’ that she knew the family would be upset if they sent him out because he had done this thing before. At 12:30 to 1:30 am it got worse and his breathing got worse, He was breathing funny. His vitals were going crazy. His blood pressure was 200 and something over 100 and something. His pulse was fast and oxygen saturation was low. His breathing was irregular. She called the RCC again and she said to call the home health company. The guy she spoke to at home health asked why did he need to come and she explained the situation and the vitals. He stated based on Resident #1's vitals he should be sent out to the hospital. She called the RCC again and told her what home health said and the RCC said "no " , to not send him out and she would deal with him in the morning. At 1:30 to 2:30 am he was panic screaming (like yelling). He said now I know what it feels like to die alone. He already had problems:with his left eye and it was white and lie could not see out of it but he.could see out of his tight eye. However, then he complained that he could not see ~ ~ them and they were Fight in front of him. She called the RCC again and she responded again that she - would deal with him in the moming. At 3:30 am he was puking but she could hear it gurgling back in his hings. He was.aspirating. She called the RCC and told her that she was sending this man out even if she had to be written up. He was throwing up and now he‘is aspirating. She stated OK do started to move him onto the stretcher. He couldn't stand. He had a stroke. Emergency medical services (EMS) and the emergency room doctor asked her why the resident was not sent to the hospital earlier, A friend who worked at the facility told her the next day that Resident #1 died at 6:45 am. c Phone interview with Staff ‘B’,a med tech/caregiver, on 10/9/13 at approximately 5:40 “am. She reported that on the night of the incident at 11:00 pm, Resident #1 complained that his eye hurt and he had a bad headache, Staff ‘A’ called the RCC and she said to go ahead and give the brand name medication for Acetaminophen he had scheduled at.some point during the next morning, In an hour he stated it was getting worse. Staff ‘A’ called the RCC and she stated he did this before and to keep an eye on him, They sat with Resident #1 throughout the night in the living room in front. Resident #1 would freak out if he could not see them. He stated he could not see them and they were right in front of his face. He said to please not leave him because he did not want to die alone. Staff ‘A’ called again and finally got permission to call 911 from the RCC about 2:00 to 3:00 am. Paramedics asked if leaning to the side was normal for him and they told them it was not normal. They asked if his face drooping was:normal and they said, "no." They did a stress test and he was weaker on one side. He fell to the'side when they stood him up and stated they thought he had a stroke when they took him out:on a stretcher. Staff ‘B’ stated she felt like Resident #1 should have went out to the hospital the first time Staff ‘“ called the RCC. Resident #1 stated he felt like a hot rod was stabbing through his eye. It was not normal for him to come out of his room and complain d. Interview with the RCC about Resident #1 on 10/8/13 at about 2:15 pm. She stated that Staff ‘A’ called her orice for Resident #1's headache and she asked Staff ‘A’ if he had anything she could give him for pain and Staff ‘A’ said a brand name medication for Acetaminophen. The RCC said, " well give him that." Staff‘A’ called back later and stated he was throwing up and she told Staff‘ A” to send him to the hospital. It started about 1:00 am and she did not know how long in between before Staff ‘A’ called the second time. She stated she did not remember exact times “because it happened almost a year ago. 7 San et ecngioeeanygmeninepe bier see mane nt egress nemsmmn enue on Sibuset einer arsine ' i t ; @. Review of the EMS report dated 4/30/13. It indicated that the stroke alert was called at 3:28 am and Resident #1 arrived at the hospital at 3:43 am. ) f. Review of the hospital Emergency Department Note - Phiysician final report dated 4/30/13. It noted that the physician spoke directly to the staff at the facility and was told that at 11:00 pm or so Resident #1 had severe pain behind his right eye. He walked out to the nursing — station to request help. Resident #1 sat down in a chair near the nutsing station and stayed there for the next few hours. Somewhere between 3:00 and 3:15 am Resident #1 became less responsive and vomited and developed slurred speech. Facility staff did not notice left sided weakness. At the hospital Resident #1 was diagnosed with intracerebral hemorrhage (a type of stroke where an artery bursts in the brain and causes bleeding in the brain). g. Death. The hospital death record indicated that the resident died at 7:25 am on 4/30/13. h. Interview with the RCC on 10/8/13 at about 2:40 pm. Stafflet them know if residents-are sick and then they contact the nurse (a home health nurse because the facility has no nursés) and she comes to evaluate. If the nutse states they need-to go out to hospital then they send them. If it's night time staff call her (the RCC) and then the nurse is called and the nurse still comes to assess. They and the nurse might say to go ahead and send out. i. Interview with the executive director (ED). The ED revealed that Resident #1 's family was adamant about not sending him out to the hospital (not specifically talking about this event, but Previous ones). ; . _ j. Review of the hospital Emergency Department Note ~ Nursing final report dated 4/30/13. It revealed that EMS reported that the family was not thrilled with the idea of the resident being transported to the hospital. cde esate aspen era ety tatoo so tenn tnsennnenntammpanma aea i i 1 i i i i | | | k. Review of the facility's medical emergencies policy. It was located on page 93 and 94 of its Assisted Living Policy and Procedure Manual. Section 1 indicated that the administrator should be. contacted immediately and section 2 indicated that the administrator makes the determination of the severity of the situation. Section 3 indicated that the community summons emergency medical services by calling 911 when the resident exhibits signs and symptoms of distress and /or emergency : condition, One example included was sudden onset of severe pain. Resident #1 had indicated to staff that he felt like a hot rod was stabbing through his eye but medical care was still delayed for hours. 9. Florida’s law regatding residents having the right to a safe and decent living environment free from abuse and neglect is stated as follows: B r : ; i 429.28 Resident bill of rights.— . (1) No resident of a facility shall be deprived of any civil or legal rights, | ‘ benefits, or privileges. guaranteed by law, the Constitution of the State of Florida, or the Constitution of the United States.as a resident of a facility. Every resident of a facility shall have the right to: (a) Live ina safe and decent living environment, free from abuse and neglect. Section 429.28, Fla. Stat. (2013) 10. In sum, the facility failed to ensure that Resident #1 was free from neglect, to wit, he did not __ receive timely and appropriate medical care which led to extreme continual pain because he first alerted staff between the 10:30 to 11:30 pm time frame on.4/29/13 that he was in extreme pain but, despite his, e. g., repeated complaints of extreme pain, panic yelling, expressing his fear of dying alone, vomiting, lack of vision, crazy vitals, aspirating, leaning to the side and drooping face, 911 was not notified until about 3:30 atv the next iiditiing, an inappropriate delay of several hours. 11. Respondent was cited fora Class Il violation, defined as follows: 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be _ Classified according to the nature of the violation and the gravity of its probable effect on clients. .» Violations shall be classified:on the written notice as follows: (b) Class “II” violations are those conditions or‘oceurrences related to the operation and maintenance of a provider or to the care of clients which the agency _ determines directly threaten the physical or emotional health, safety, or security of the clients, other than class I violations. The agency shall impose an administrative fine as provided by law for a cited class II violation. A’fine shall be levied notwithstanding the correction of the violation. Section 408.813, Fla, Stat. (2013) 12. Florida-law states as follows as regards the fine for an ALF for a Class II violation: 429.19 Violations; imposition of administrative fines; grounds.— (1) In addition to the requirements of part II of chapter 408, the agency shall impose an administrative fine in the manner provided in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility, for the actions of any person subject to level 2 background screening under s. 408.809, for the actions of any facility employee, or for an intentional or negligent act seriously affecting the health, safety, or welfare of a resident of the facility. (2) Each violation of this part and adopted rules shall be classified ‘according to the nature of the violation and the gravity of its probable efféct on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: {b) Class “II” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class II violation i inan n amount not less than $1,000 and een HOE ENCE $5,000 Lor CAC Via data (3) For purposes of this section, in determining if a penalty is.to be imposed and in fixing the amount of the fine, the agency shall consider the following factors: (a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated. (b) Actions taken by the owner or administrator to correct violations. “~(e) ~~ Any previous violations: d)- The financial benefit to the facility of committing or continuing the violation, (e) The licensed capacity of the facility. Section 429.19, Fla. Stat, (2013) smear mre erin nites teins ingest cnn ee ne ene WHEREFORE, the Agency intends to-impose a $2,000 fine agninst Respondent pursuant to Sections 408.813 and 429, 19, Fla, Stat. (2013). COUNT Il - $1,000 UNCORRECTED CLASS III FINE (Case No. 2014002084; State Tag A0010 — Admissions —-Continued Residency) 13. The Agency re-alleges and incorporates paragraphs | - 5 as if fully set forth herein. fa survey - 11/21/13 (paras 14 —19) 14. A complaint investigation (CCR#2013012071) was conducted on 21 November, 2013. 15. Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for Resident #1, an 89 year old female receiving hospice care and services. A 11/21/13 review of her records showed that although she was retained at the facility on | hospice care it failed to develop and implement an interdisciplinary care plan developed by hospice. in coordination with her and/or another responsible party in order to meet her needs. 16. Florida law provides as follows as regards an ALF resident receiving hospice services: 58A-5.0181 Admission Procedures, “Appropriateness “of Placement and Continued Residency Criteria. (4) CONTINUED RESIDENCY. Except as follows in paragtaphs (a) through (e) of this subsection, criteria for continued residency in any licensed facility shall be the same as the criteria for admission. As part of the continued residency criteria, a resident must have a face-to-face medical examination by a licensed health. care provider at least every 3 years after the initial assessment, or after a significant change, whichever comes first. A significant change is defined in Rule 58A-5.0131, F.A.C. The results of the examination must be recorded on AHCA Form 1823, which is incorporated by reference in paragraph (2)(b) of this rule. The form must be completed in accordance with that paragraph. After the effective date of this rule, providers shall have up to 12 months to comply with this requirement. ©) A terminally ill resident who no longer meets the criteria for continued residency may continue to reside in the facility if the following conditions are met: 1. The resident qualifies for, is admitted to, and consents to the services of.a licensed 8 hospice which coordinates and ensures the provision of any additional care and . services that may be needed; 2. Continued residency is agreeable to the resident and the facility; 3, An interdisciplinary care plan is developed and implemented by a licensed hospice in consultation with the facility. Facility staff may provide any nursing service permitted under the facility’s license and total help with the activities of daily living; and : 4. Documentation of the requirements of this paragraph is maintained in the resident's file. Rule 58A-5.0181, F.A.C, | 17. Insum, the facility failed to develop and implement Resident #1’s interdisciplinary plan for hospice care and services. | 18. Petitioner cited Respondent for a Class III violation, defined as follows:. 408.813 Administrative fines; violations.—As a penalty for any violation of this part, authorizing statutes, or applicable rules, the agency may impose an administrative fine. (2) Violations of this part, authorizing statutes, or applicable rules shall be classified according to the nature of the violation and the gravity of its probable effect on clients, ~ .,. Violations shall be classified on the written notice as follows: (c) Class “IIT” violations are those conditions or occurrences related to the operation and maintenance of a provider or to the care of clients which emotional health, safety, or security of clients, other than class J or class II violations. The agency shall impose an administrative fine as provided in this section for a cited class III violation, A citation for a class TII violation must specify the time within which the violation is required tobe corrected, If a class III violation is corrected within the time specified, a fine may not be imposed, Section 408.813, Fla. Stat. (2013) 19. By letter dated 9 December, 2013, Respondent was notified of a mandatory correction date of 30 days from the letter’s 9 December date, to wit, on or about 9 January, 2014. 2% Survey - 1/31/14 (paras 20 - 25) 20. A revisit survey was conducted on 31 January, 2014, to check on the deficiencies cited during 9 the first survey on 21 November, 2013. 21, a, Based upon record review the facility failed to ensure that an interdisciplinary care plan was developed and implemented for resident #1, an 89 year old female receiving hospice care and services, . b. An 11/21/13 review of Resident #1’s records showed that although she was retained at the facility on hospice care it failed to develop and implement an interdisciplinary care plan with, hospice in coordination with her and/or another responsible party to meet her needs. c. During the revisit survey an interdisciplinary care plan was still not available for her. The facility had a hospice ‘Interdisciplinary Care Plans’ form which was a blank form with the words "Interdiciplinary Care Plans" hand written at the top of the page labeled as a "HHA Plan of Care and Note", The rest of the page corisisted of a check list to indicate the information for all areas pertaining to pain level, mental status, bathing, grooming, dressing, nutrition, activity tolerance and transfer. In sum, the form was empty in content and did not meet the intent of the requirement. d. During a staff interview the surveyor determined that they did not have a good discussion that they were going to develop their own form for this purpose. 22. Insum, the facility failed to correct the prior deficiency by still not having developed and implemented the required interdisciplinary care plan for Resident #1 who was still receiving hospice care and services. 23. Florida law regarding an ALF resident receiving hospice services is cited in paragraph 16. 24. Petitioner cited Respondent for a Class III violation, defined in paragraph 18. 10 25. The'same constitutes an uncorrected Class III violation with the fine determined as follows: WHEREFORE, the Agency intends to impose a $1,000 fine against Respondent, an ALF 429,19 - Violations; imposition of adminisirative fines; grounds.— (1) Inaddition to the requirements of part II of chapter 408, the agency “shall impose an administrative fine in the manner provided:in chapter 120 for the violation of any provision of this part, part II of chapter 408, and applicable rules by an assisted living facility ... - (2) Each violation of this part:and adopted rules shall be classified - according to the nature of the violation and the gravity ofits probable: effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows: (c) Class “III” violations are defined in s. 408.813. The agency shall impose an administrative fine for a cited class III violation in an amount not less than $500 and not exceeding $1,000 for each violation. Section 429.19, Fla. Stat. (2012) in the State of Florida, pursuant to § 429,19 (2) (c), Fla. Stat. (2013). +k Submitted this @ day of April, 2014. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION 525 Mirror Lake Dr. N., Ste 330 Ph: (727) 552-1942 Fax: -1440 david.selby@ahca.myflorida.com _ By: z Q Edwin D. Selby Assistant General Counsel Fla. Bar No, 262587 41 | | i | 4 Le i j H 4 / L i : i L i f i f St Petersburg, FL 33701 5 i t i * : i i | i
The Issue The issue in this case is whether the allegations of the Amended Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of medicine in the State of Florida. At all times material to this case, the Respondent has been a licensed physician in the State of Florida, license #ME 0035994. In August, 1987, the Respondent met with a married couple for treatment of the wife's (patient) recurrent ovarian cysts and pain. The couple were referred to the Respondent for the consultation by another physician. The patient was hospitalized at the time of the consultation. As part of the initial examination of the couple, the Respondent conducted a routine infertility physical and history, including questions related to sexual history and practices. During the examination, the Respondent learned that the couple's sexual activity was infrequent and that the marriage was troubled. The Respondent determined that the cause of the medical problem was related to a fertility medication prescribed by another physician. At that time, and on subsequent occasions, the Respondent advised the couple to obtain marital and sexual counseling. The Respondent did not provide marital or sexual counseling to the couple. After the patient recovered from the ovarian cysts, she consulted with the Respondent in regards to her ongoing fertility and ovulatory problems. The Respondent began administering fertility medication to induce ovulation. The medical treatment was eventually successful and the patient became pregnant. The child was born in 1989. At some point during the fertility treatment, the patient complained to the Respondent of experiencing migraine headaches. The Respondent referred the patient to a neurologist who prescribed narcotic pain relievers. After the birth of the first child, the patient returned to the Respondent for further fertility treatment (apparently in late 1989 or early 1990) in order to conceive a second child. Again, the treatment was successful and the patient became pregnant. The Respondent referred the pregnant patient back to her obstetrician by letter dated April 23, 1990. Beginning in mid-1990, the patient and her husband began to engage in social activities with the Respondent. On occasion, the three had dinner, went swimming with their children, and went to view a fireworks show. The patient had been employed as a pharmaceutical representative, but was interested in changing careers. She expressed an interest to the Respondent in establishing a medical transcription business. The Respondent provided typing work to the patient. By April 23, 1990, the patient was typing letters for the Respondent. The letter from the Respondent to the obstetrician closes, "[p]lease forgive the typographical errors, as I am sure [patient] will be typing this letter." The patient gave birth to the second child on October 26, 1990. After the birth of the second child, the Respondent employed the patient as a medical transcriptionist. She also worked for her obstetrician as a transcriptionist. Based on the suggestion in 1990 by the patient, the Respondent began to employ the patient's husband as a certified public accountant. Throughout the remainder of 1990, the Respondent continued to socialize with the couple. The Respondent was aware that the couple's marriage was troubled. The continuing marital problems of the couple eventually resulted in separation when the patient's husband moved from their home into an apartment. The evidence fails to conclusively establish the date of the separation, but it apparently occurred prior to April, 1991. By April 1991, the patient and the Respondent continued to meet on a social basis. The Respondent was divorced. The patient and her husband remained separated. At times, the Respondent and the patient discussed their marital experiences. During this period, the Respondent and the patient expressed romantic feelings for each other. They began to "date," and the Respondent paid to take the patient to dinners and movies. In April or May of 1991, and continuing thereafter for a period of approximately three and a half years, the patient and the Respondent engaged in consensual sexual activity. It is critical for an obstetrician-gynecologist, as well as for a specialist in reproductive endocrinology, to understand and respect the sexual boundaries between physician and patient. The sexual boundary between a patient and a reproductive endocrinologist must be absolute. In order to receive appropriate medical treatment, the patient is requested to reveal intimate details of her sexual activities and the emotional nature of a marriage. The patient must be able to completely trust the physician. The information is and must remain confidential. From the time of the Respondent's initial examination and history of the patient, through the initiation of the sexual relationship, the Respondent was aware of the marital and sexual problems of the patient and her husband. The Respondent asserts that by the time the sexual relationship began, the physician-patient relationship had been terminated by the letter of April 23, 1990. Based on credited expert testimony, the evidence establishes that the physician-patient relationship continued to exist at the time the sexual activity began. The evidence establishes that the referral of a pregnant patient back to an obstetrician does not terminate the relationship with a fertility specialist, who may again be called upon to render assistance in treatment of continuing fertility problems. The evidence also establishes that prescribing of narcotics necessarily establishes a physician-patient relationship. Subsequent to the letter of April 23, 1990, the Respondent wrote prescriptions to refill narcotic pain medications which the patient had obtained from her neurologist. Although documentary evidence regarding the actual prescriptions is deemed to lack reliability, both the Respondent and the patient acknowledged that the prescriptions were written. The Respondent wrote the refills after the patient, with continuing migraine headaches, complained that she would have to see the prescribing physician and pay for an office visit to get them refilled. Although the Respondent claims to have reviewed an early report done by the neurologist to whom he had referred the patient, there is no evidence that the Respondent did a physical examination at the time he wrote the refill prescription. The evidence establishes that, because a physician can prescribe narcotics, there is potential for abuse by a physician who may attempt to trade drug prescriptions for sexual activity. It is unethical for a physician to induce a patient into sexual activity. Allowing an emotional relationship to begin and develop within the physician-patient relationship constitutes an inducement of the patient into sexual activity. The Respondent failed to maintain sexual boundaries with his patient. He allowed and encouraged an emotional and sexual relationship to develop, and as such, used the physician-patient relationship to engage and induce the patient into sexual activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order determining that Stephen Ward Weldon has violated Sections 458.329 and 458.331(1)(x), Florida Statutes, reprimanding the Respondent and placing the Respondent on probation for a period of two years. DONE and RECOMMENDED this 28th day of September, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6032 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 6. Rejected, unnecessary. 19-20. Rejected, not established by clear and convincing evidence. 22. Rejected, cumulative. 29. Rejected, cumulative. Respondent The Respondent's proposed findings of fact frequently refer to an alleged termination of the physician-patient relationship. Such references are rejected as contrary to the greater weight of credible and persuasive evidence. Otherwise, the proposed findings are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected. The prehearing stipulation filed by the parties does not address certification. 9. Rejected as to patient's desire for her marriage to continue, and as to the assertion that her marital difficulty was "unrelated" to the eventual development of her relationship with the Respondent, irrelevant. Rejected, irrelevant. Rejected, recitation of testimony is not a finding of fact. 16-17. Rejected, recitation of testimony is not a finding of fact. 18-20. Rejected, irrelevant. DOAH CASE NO 94-6032 COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303-4131 Joseph S. Garwood, Esquire Agency for Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Grover Freeman, Esquire 201 East Kennedy, Suite 500 Tampa, Florida 33602-5829
The Issue The following are the issues presented: Whether the Division of Administrative Hearings (“DOAH”) has jurisdiction to determine the claim of Petitioners Wal-Mart, Inc. (“Wal-Mart”) and Sedgwick CMS (“Sedgwick”) to relief under section 440.13(8) and (11), Florida Statutes; If DOAH has jurisdiction, whether Petitioners have standing to raise the issue of medical overutilization; If DOAH has jurisdiction and the Petitioners have standing, whether Petitioners are estopped from seeking reimbursement of any monies paid to Intervenors Florida Institute for Neurologic Rehabilitation (“FINR”) and Fruitville Holdings - Oppidan, Inc. (“Oppidan”); If DOAH has jurisdiction and Petitioners have standing and are not estopped, whether Intervenors engaged in overutilization of medical care in their care and treatment of the injured worker, D.F.; Whether Respondent, Department of Financial Services, Division of Workers’ Compensation (the “Department), has the authority to order Intervenors to reimburse Petitioners for payments related to overutilization by Intervenors in the medical care of D.F.; and If the Department has such authority, how much money should Intervenors be ordered to reimburse Petitioners.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for administering the Workers’ Compensation Law, chapter 440, Florida Statutes. Section 440.13 governs the Department’s responsibilities and procedures for overseeing the provision by employers to their employees of “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment as provided for in this chapter ” § 440.13(2)(a), Fla. Stat. Petitioner Wal-Mart is an “employer” as that term is defined in section 440.02(16). Petitioner Sedgwick acts as a workers' compensation servicing agent or “third party administrator” (“TPA”) for Wal-Mart and is a workers’ compensation “carrier” as defined in section 440.13(1)(c). D.F. is an “employee” as that term is defined in section 440.02(15). In 2003, during the course of his employment with Wal- Mart in Sarasota, D.F. fell approximately six feet from a ladder to the ground, landing on his left side and striking his head. D.F. was diagnosed with a traumatic brain injury. Through Sedgwick, Wal-Mart accepted the compensability of D.F.'s injuries under the law and began furnishing “medically necessary treatment, care and attendance” to D.F. as required by section 440.13(2). In the immediate aftermath of the accident, D.F. was treated at Sarasota Memorial Hospital, where he was diagnosed with cephalgia (headache), left flank contusion, and cervical strain. He was later seen at First Care in Sarasota with complaints of headache, and by a Dr. Barnea (no first name in the record) with complaints of headaches, dizziness, backaches, trouble with memory, and an inability to taste food. D.F. was also seen by Dr. Hal Pineless, a neurologist at the Neurocare Institute of Central Florida, who diagnosed D.F. with a cerebral concussion with post-concussive syndrome, post-concussive headaches, depression, and anosmia (loss of the sense of smell). In January 2005, D.F. took a handful of pills in what was at least a suicidal gesture, if not a serious attempt to kill himself. He was admitted to the Halifax Medical Center, and a Baker Act2/ proceeding was initiated against him. Although D.F. was found not to meet the criteria for involuntary hospitalization at that point, three months later he was referred by James Hutchens, his attorney, to Dr. Howard Goldman, a psychiatrist, because of the attorney's fear that D.F. would again attempt to harm himself. In February 2007, D.F. was evaluated at FINR, an inpatient neurologic rehabilitation facility in Wauchula. FINR recommended inpatient treatment for D.F. at their facility for an initial period of 30 to 60 days. The cost of the treatment was set at $950 a day. Susan Smith was the Sedgwick claims adjuster assigned to D.F.’s claim. Relying on the expertise of the physicians at FINR, Ms. Smith agreed to the admission and the price. Ms. Smith testified that when she took over the case, there were five physicians treating D.F., including a neurologist, a psychotherapist, a psychiatrist, and a physiatrist. The physicians were all requesting different courses of treatment and were prescribing medications that were in some instances contraindicated with each other. The physicians were not communicating with each other. D.F.’s case was “just a mess.” Ms. Smith stated that FINR seemed to present an opportunity for D.F. to receive all of his treatments in one place, with one physician in charge, in a coordinated fashion. D.F. was admitted to FINR in March 2007. Dr. Jorge J. Villalba, the medical director of FINR, diagnosed D.F.'s medical conditions as post-traumatic headaches, anxiety, and depression. FINR provided monthly reports of D.F.'s progress to Sedgwick. D.F.’s treatment was administered by a team of physicians at FINR and consisted of medical monitoring, occupational therapy, physical therapy, and speech therapy. D.F. was provided vocational rehabilitation in FINR’s computer lab and in the wood shop, where he worked on sanding, staining, and building wood products. In August 2007, D.F. was transferred to Oppidan, an assisted living facility, as a “step down” in treatment from the inpatient FINR facility. Oppidan is affiliated with FINR, which does all of the billing for both entities. Again relying on the expertise of the physicians, Ms. Smith agreed to the transfer and to the $850 per day cost of care at Oppidan. Oppidan provided monthly reports to Sedgwick similar to those provided by FINR. These reports, later characterized as "boilerplate" by the Department’s expert medical advisor, Dr. Matthew Imfeld, showed that D.F. was receiving treatment similar to that which he had received at FINR, i.e., medical monitoring, occupational therapy, physical therapy, speech therapy, and vocational therapy. D.F. remained at Oppidan from August 2007 until August 2011, more than four years after his initial admission to FINR. Ms. Smith testified that she was in constant contact with the treatment facility and persistently inquired as to when D.F. would be ready for release from the facility. Ms. Smith noted a pattern in which D.F. would seem to improve to the point of discharge and then suffer some form of relapse or new symptom that would preclude his discharge. Increased symptoms included complaints of personality changes, anxiety, syncopal episodes accompanied by frequent falls, medication adjustments, emotional withdrawal, suspected Parkinson's syndrome, ringworm, shoulder problems, ringing in the ears, and anhedonia.3/ Petitioners worked with Oppidan’s medical staff to determine conditions for D.F.’s discharge from Oppidan. On January 9, 2009, Petitioner’s then-counsel, Brian Bartley, discussed the situation with Dr. Villalba and Dr. Jeffrey Walden, D.F.’s neuropsychologist. They agreed that D.F.’s needs could potentially be met within an outpatient day program. At Mr. Bartley’s suggestion, Dr. Villalba and Dr. Walden investigated the Adult Daycare program at Manatee Glens, a behavioral health hospital with an outpatient component. Though they rejected Manatee Glens as an appropriate placement, Drs. Villalba and Walden sent Mr. Bartley a letter, dated January 15, 2009, that outlined the components they felt necessary for an acceptable outpatient program: [D.F.] requires comprehensive case management services to oversee his program, assist with making and following-up on appointments, assist in managing his benefits, and coordinate his care. [D.F.] will require oversight of his medications. We feel that a home health nurse or, alternately, a nurse on site at a potential discharge site, would be necessary to provide for this need by packing his medication box with him, assessing him for possible side effects, overseeing a schedule of routine labs, etc. His wife can assist with prompting him at his medication times as necessary during non-program hours, but we do not recommend that she have primary responsibility for managing his medications or medical status. [D.F.] will require reliable transportation to and from his program and ancillary appointments. His wife will not be able to be his sole source of transportation. First, the only licensed and tagged vehicle they own is an old van that has had multiple reliability issues. Second, his wife has her own ongoing medical concerns that may interfere with her capacity to provide reliable transportation even with a working vehicle. [D.F.] requires activities that challenge him to be in the community and addressing his anxiety and panic symptoms. As such, a club-house model day program will be inadequate. He requires a vocational program where he is in a workplace, managing interpersonal relationships, and working on specified tasks. He has thus far been able to manage such assignments only with the assistance of a one-to-one job coach on the site with him and working at his side. As such, job coaching services will be required for all vocational hours. [D.F.] requires community recreational activities to further challenge his capacity to cope and master anxiety-producing situations with less structure than a workplace. His present program addressed this need through one-to-one lunch outings, fishing trips, etc. During these activities, he is encouraged to use the coping strategies developed in his psychotherapy sessions to manage and persevere despite his debilitating anxiety. [D.F.] requires a quiet place to which he can temporarily retreat and regroup between community-based activities. He can become overwhelmed in busy and chaotic environments such as a room with loud music or television playing, a busy game room, or an activity center. He has coping strategies he utilizes when he must be in such environments, but the availability of a place where he can escape such over- stimulation is required to facilitate his participation in his activities. [D.F.] requires continued participation in weekly cognitive-behavioral psychotherapy. He also requires regular contact with a neurologist and a neuropsychiatrist. His current program includes massage therapy as well to address his shoulder and to assist with relaxation skills. He also receives assistance with the management of his personal budget, including development of computer-based budgeting program, planning of future expenses and anticipated income, and development of financial priorities. He will require continued assistance in this area as well. We hope this adequately describes the services we feel will be required to address [D.F.’s] needs in an outpatient environment. Please feel free to contact us with any comments or questions you may have. We will gladly review any proposed discharge site and offer our thoughts regarding the acceptability of such a site to meet his needs. The record indicates that Mr. Bartley suggested at least one more potential discharge site to the medical staff at Oppidan. In a letter dated March 27, 2009, Drs. Villalba and Walden stopped short of rejecting this option outright but did set forth a list of concerns and requests for further information regarding the details of the proposed treatment. The record does not indicate whether Mr. Bartley followed up on these concerns and requests, or whether Petitioners proposed another outpatient program for D.F. By the time of D.F.’s discharge, FINR and Oppidan’s billed charges for his treatment totaled $1,451,301.27. Wal- Mart, through Sedgwick, paid these bills in full without disallowance, adjustment, or reduction. At all times relevant, Ms. Smith relied upon the expertise of the medical staff at FINR and Oppidan’s facilities confirming that the treatment being provided was medically necessary. Ms. Smith also understood that D.F. had been "Baker Acted" and feared that he might harm himself if Oppidan discharged him upon her disallowance of the charges for his treatment. Though they continued paying the charges during D.F.’s stay at Oppidan, Petitioners noted the mounting costs and apparently endless course of treatment. Petitioners referred D.F. to Glenn J. Larrabee, Ph.D., a diplomate in clinical neuropsychology, who examined D.F. on September 28 through 30 and October 5, 2009, and reviewed all of his available medical records. Dr. Larrabee produced a 41-page report, dated November 9, 2009. The report concluded that D.F.’s medical records “suggest that at worst, he suffered a mild traumatic brain injury of an uncomplicated nature, given normal CT Scan the day of injury and multiple subsequent normal CT Scans of the brain.” Dr. Larrabee noted that recovery from such an uncomplicated injury is usually three months at most and that D.F. had no cognitive or emotional complaints in follow-up visits shortly after the injury. It was only a few weeks later that he displayed the symptoms of anosmia. Dr. Larrabee’s examination of D.F. showed “deliberate feigning of odor identification in the left nostril, with significantly worse- than-chance performance, strongly supporting the feigning of anosmia.” Dr. Larrabee further noted evidence of normal neuropsychological test performance in D.F.’s initial neuropsychological evaluation with a Dr. Frank in early 2004, in a second neurological evaluation conducted by a Dr. Bosco in 2007, and in Dr. Larrabee’s own current examination. These results “strongly contradict the presence of any persistent deficit from his original mild traumatic brain injury.” In each of these tests, Dr. Larrabee also noted “evidence of invalid test performance with failure of symptom validity tests and measures of response bias,” a further indication that D.F. was deliberately feigning responses. Dr. Larrabee wrote that “[o]ther health care professionals have noted a motivational basis or non-neurologic basis to symptomatic complaint.” Dr. Salter in 2005 included “factitious disorder” as one of his diagnoses, and Dr. Tatum noted that D.F. displayed seizures without any indication of actual epilepsy. Dr. Larrabee concluded that, while there was “compelling evidence of malingering” on the neuropsychological examinations, other professionals have noted “significant personality disorder features” that could lead one to be dependent on the inpatient hospitalization setting. Dr. Larrabee found that there could be “a mix of intentional (i.e., malingering) and unintentional (psychiatric) factors” in the case of D.F. He recommended a one-month stay in a psychiatric facility for evaluation and treatment. Without such hospitalization, it could not be determined whether D.F. had a legitimate psychiatric disorder or whether such disorder was a consequence of his workplace injury. At about the same time as the referral to Dr. Larrabee, Petitioners began to explore legal channels to procure D.F.’s discharge from Oppidan. Petitioners sent the case file to an attorney, Edward Louis Stern, who testified at the final hearing. Mr. Stern testified that he met with D.F.'s attorney for the purpose of obtaining his cooperation in having D.F. discharged. Mr. Stern provided D.F.'s attorney with a copy of Dr. Larrabee’s report. Mr. Stern stated that D.F.'s attorney agreed in principle to the discharge of D.F. but wanted to identify the parameters that would be allowed by FINR/Oppidan for his safe release. To this end, a meeting was set up for June 3, 2010, that included the program director at FINR, the treating neuropsychologist, a vocational consultant, D.F., D.F.'s spouse, and D.F.'s attorney. Mr. Stern reported that no one at the meeting was willing to definitively identify the parameters of D.F.'s discharge. Mr. Stern left the meeting with the definite impression that D.F.’s attorney would not agree to D.F.’s discharge. He also believed that no one at the facility would be willing to identify parameters for discharge. Therefore, Mr. Stern and his clients decided to initiate formal overutilization proceedings based on peer review, pursuant to section 440.13(6). Mr. Stern noted that peer review requires two or more "physicians" to make an evaluation of the care in question. Petitioners had in hand only the opinion of Dr. Larrabee, a neuropsychologist whose non-physician opinion would not be admissible before a Judge of Compensation Claims. After some negotiation, D.F.’s attorney agreed to an examination by a psychiatrist. On September 3, 2010, Dr. R.J. Mignone, a board- certified psychiatrist practicing in Sarasota, evaluated D.F. at Petitioners' request. Dr. Mignone’s 35-page report included a detailed narrative of D.F.’s treatment history, Dr. Mignone’s examination, and his impressions and recommendations. In brief answers to a series of questions propounded by Petitioners, Dr. Mignone concluded that D.F.'s industrial accident was not "the major contributing cause" for the psychiatric care he had been receiving at FINR/Oppidan. Dr. Mignone found no DSM-IV Axis I psychiatric injury to D.F. and concluded that D.F.’s treatment at FINR/Oppidan was actually "psychiatrically contraindicated." Dr. Mignone concluded that it would be appropriate to discharge D.F. from Oppidan with the understanding that some regression should be expected once his “Axis II characteropathy” ceased to be reinforced by the inpatient setting. Dr. Mignone believed that D.F.'s medical professionals had been guilty of "walking on eggshells" in their treatment of him and that D.F.'s "acting out" behavior had been a major factor in FINR/Oppidan's program design. Dr. Mignone concluded that because D.F.’s condition was unrelated to his work injury, all of the treatment he had received at FINR and Oppidan constituted overutilization. After a great deal more legal jockeying, a second peer review was performed by Dr. Thomas Goldschmidt on January 7, 2011. Dr. Goldschmidt is a specialist in neurology and psychiatry, and was specifically recommended by Dr. Mignone to perform an examination of D.F. However, because D.F.’s attorney declined to allow the examination, Dr. Goldschmidt’s opinion was based on his review of the medical record and Dr. Mignone’s evaluation. He summarized his findings as follows: The claimant experienced MTBI [mild traumatic brain injury] on May 9, 2003. He reported loss of consciousness for seconds and was able to drive himself home afterwards. Serial evaluations over time have chronicled multiple normal CT brain scans, normal forty-eight hour EEG monitoring suggesting PNES [psychogenic nonepileptic seizures, i.e., seizures with a psychological cause], symptom exaggeration/malingering on neuropsychological testing, pertinacious somatic preoccupation with trait characterological disturbance consistent with passive-dependent underpinnings, and counter-therapeutic institutionalization at OPPIDAN. As such, the claimant’s clinical course has iatrogenically served to enhance his misguided perception of being “brain injured” in pursuit of satisfying his formidable but chronically frustrated dependency needs. Furthermore, his clinical course is atypical for MTBI and cannot be objectivity [sic] reconciled with the neuropsychological or clinical data provided for my review. From a non-organic perspective, the claimant has parlayed his seven year old MTBI into a state of invalidism largely facilitated by OPPIDAN. In effect, his illness-behavior has been iatrogenically perpetuated by reinforcing the notion of “brain injury” and treatment of psychogenic-mediated symptomatology unrelated to his 2003 work injury. Negotiations continued and a private mediation resulted in a negotiated settlement between Petitioners and D.F. The parties agreed that Petitioners would no longer be responsible for workers’ compensation benefits as of the date the agreement was signed, though D.F. would continue to receive payments for lost wages and supplemental benefits. It was agreed that Petitioners would cease making payments to FINR/Oppidan on August 30, 2011, the date that D.F.’s residency would discontinue. In light of Petitioners’ suspicions regarding D.F.’s possible malingering, it is reasonable to ask why they never disallowed or adjusted any of the bills generated by FINR/Oppidan’s treatment of D.F. Mr. Stern testified that Petitioners did not unilaterally disallow payment out of fear that FINR/Oppidan might retaliate against D.F. by immediately discharging him, thereby risking another suicide attempt and possible tort liability for Petitioners.4/ Petitioners also feared that unilateral disallowance of payments could negatively affect their ongoing negotiations with D.F.’s counsel regarding voluntary discharge from Oppidan. On January 28, 2011, Petitioners filed the Reimbursement Petition with the Department, naming FINR and Oppidan as respondents and expressly disclaiming any direct reimbursement dispute with D.F. The Reimbursement Petition recited the history of D.F.’s treatment. It did not name a specific instance of overutilization; rather, it stated that all of D.F.’s treatment by FINR and Oppidan constituted overutilization. The Reimbursement Petition requested that the Department, “in accordance with Section 440.13(6), Florida Statutes . . . disallow the payment of services previously paid by the Petitioner[s] and reimburse Petitioners all sums paid.” The Reimbursement Petition also requested the return of payments made by Petitioners in accordance with section 440.13(11)(a).5/ Attached to the Reimbursement Petition was a copy of DFS Form 3160-0023, entitled “Petition for Resolution of Reimbursement Dispute,” executed by Wal-Mart and Sedgwick. Just below the title of DFS Form 3160-0023 is the following statement: “A Petition for Resolution of Reimbursement Dispute must be served on the Agency within 30 days after the Petitioner’s receipt of a notice of disallowance or adjustment of payment, pursuant to 69L-31.008, Florida Administrative Code.” Section 440.13(7)(a) likewise provides, in relevant part: Any health care provider, carrier, or employer who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 30 days after receipt of notice of disallowance or adjustment of payment, petition the department to resolve the dispute. The petitioner must serve a copy of the petition on the carrier and on all affected parties by certified mail. The petition must be accompanied by all documents and records that support the allegations contained in the petition. Failure of a petitioner to submit such documentation to the department results in dismissal of the petition. FINR and Oppidan filed a Motion to Dismiss the Reimbursement Petition arguing that jurisdiction for a reimbursement review can be invoked only where a medical bill has been disallowed or adjusted for payment. They further argued that Petitioners could not invoke the Department’s jurisdiction to conduct a mandatory utilization review under section 440.13(6) because of that subsection’s provision that if a carrier finds that overutilization of medical services has occurred, the carrier “must disallow or adjust payment for such services.” FINR/Oppidan argued that the dispute mechanism afforded a carrier under section 440.13 is limited to disallowing or adjusting a payment, which triggers the filing of a petition by the health care provider and a response from the carrier. Given that the Sedgwick did not disallow or adjust any payments, the Reimbursement Petition should be dismissed. As a result of the Reimbursement Petition, the Department initiated an investigation of FINR/Oppidan and of Dr. Villalba individually as medical director of FINR/Oppidan pursuant to section 440.13(11). Eric Lloyd, who at the time was program administrator of the office of medical services in the Division of Workers’ Compensation, testified that the Department did not then have a formalized method for reporting provider violations and that the language of 440.13(7) makes it clear that only a health care provider may pursue a petition for resolution of a reimbursement dispute. Mr. Lloyd stated that the Department therefore treated the Reimbursement Petition as a report of provider violation and converted the matter into a review under section 440.13(11). Delays in the resolution of the audit were caused by the need to advertise for and contract the services of an Expert Medical Advisor (“EMA”) pursuant to section 440.13(9). The Department’s initial contracting efforts were futile. Two contracted EMAs disqualified themselves for conflicts of interest. The Department finally engaged the services of a certified EMA, Dr. Imfeld, a specialist in the field of physical medicine and rehabilitation. Dr. Imfeld reviewed D.F.'s medical records from FINR/Oppidan, as well as the reports from the various doctors that were provided to the Department by the parties. Petitioners provided documents pursuant to a “Health Care Provider Violation Referral Document Request” issued by the Department on March 31, 2011, and a “Health Care Provider Violation Referral Document Request Addendum” issued by the Department on April 4, 2011. Both documents required the carrier to submit various forms of documentation. The Department’s initial document request states that the Reimbursement Petition alleged “that services rendered by Dr. Jorge Villalba, M.D. (hereinafter “Provider”), for the treatment rendered to the above referenced injured employee while an inpatient at FINR/OPPIDAN was in excess of established practice parameters and protocols of treatment established in Chapter 440, Florida Statutes.” In fact, the Reimbursement Petition made its allegations against FINR and Oppidan as institutions. Dr. Villalba was not mentioned by name in the Reimbursement Petition. The only reference to him was a statement that “[b]oth entities seemingly have the same medical director or attending physician.” Pamela Macon, bureau chief of the bureau of monitoring and audit in the Division of Workers’ Compensation, conceded at the hearing that it was her office that decided to include Dr. Villalba in the investigation because he was the medical director of the facilities. The language of the document requests plainly reflects an attempt to impute to Petitioners the Department’s own decision at the outset of the investigation to focus on Dr. Villalba individually. The end result of the investigation was that charges were brought against Dr. Villalba, but not against FINR or Oppidan as institutions. As explained more fully below, the case against Dr. Villalba was settled. No case was ever brought against the institutions. The following colloquy at the hearing is between Ms. Macon and counsel for Petitioners: Q. And as I understand it, you added Dr. Villalba to the case because he would have been, as the medical director, responsible for any medical care that was provided within the facility and he then should be responsible? A. Yes. Q. That’s why you added him? A. Correct. Q. But then you changed your mind and determined that he wasn’t involved with it at all, so you weren’t going to give – you weren’t going to penalize him? A. Right, that he didn’t render the direct care. Q. Okay. Did you ever make a determination who did the direct care? A. Not to my knowledge, no. Mr. Lloyd testified as to a policy dispute within the agency as to whether a “health care provider” violation may be brought only against individual health care providers or whether a facility can also be found in violation and sanctioned. He acknowledged that the statutory term “health care provider” explicitly includes health care facilities, but cited the difficulty involved in disciplining a facility such as FINR, which treats multiple injured workers. If the Department bars an entire facility, it would affect not just the individual injured worker whose treatment is in question but any others the facility is treating now or in the future.6/ In his report, dated August 12, 2013, Dr. Imfeld concluded that while D.F.'s 2003 accident resulted in a mild traumatic brain injury, it did not cause a seizure disorder or Parkinson's disease. He further concluded that all of the inpatient treatment from FINR/Oppidan was excessive and not medically necessary. On September 23, 2013, the Department entered its “Report of Health Care Provider Investigation and Notice of Intent to Impose Penalties Pursuant to §440.13, F.S.”7/ The Notice of Intent was directed to Dr. Villalba individually and stated as follows, in relevant part: The record in this matter, corroborated by the EMA opinion, evidences certain care that was neither medically necessary nor clinically appropriate for D.F.'s compensable condition. Accordingly, the Department finds that because of your role at FINR and OPPIDAN, you have directly or indirectly engaged in a pattern or practice of overutilization or a violation of Chapter 440, Florida Statutes, in the treatment rendered to D.F. Dr. Villalba filed a Petition for Formal Administrative Hearing on October 7, 2013, in response to the Notice of Intent. The Department and Dr. Villalba agreed to hold the case in abeyance rather than forward it to DOAH. The case was ultimately settled, the parties entering into a Settlement Stipulation for Consent Order on May 13, 2014. The settlement provided that the Department would withdraw and dismiss its Notice of Intent and that Dr. Villalba would withdraw and dismiss his petition for an administrative hearing with prejudice. Mr. Lloyd testified that after the Notice of Intent was filed against Dr. Villalba, the Department received a Recommended Order from an Administrative Law Judge in another DOAH case in which the Department had issued a Notice of Intent against an individual physician for overutilization. The Recommended Order was “pretty critical of the Department and the process that was involved,” and the Department felt obliged to enter a settlement for attorney’s fees. Mr. Lloyd testified that the Department believed Dr. Villalba’s case had “the same shortcomings” as that earlier case. Mr. Lloyd stated that this belief played a large role in the decision to settle with Dr. Villalba in lieu of trying to prove a difficult case of overutilization in a formal proceeding. Wal-Mart and Sedgwick were given no notice of the settlement negotiations or the entry of the Settlement Stipulation for Consent Order between the Department and Dr. Villalba. Mr. Lloyd testified that there is no statutory obligation for the Department to apprise the complainant of the status of the Department’s investigations. On March 23, 2015, the Department issued an order titled “Workers’ Compensation Medical Services Reimbursement Dispute Dismissal” that purported to dispose of the Reimbursement Petition filed by Wal-Mart and Sedgwick on January 28, 2011. The order provided as follows, in relevant part: There is no information to suggest that Wal- Mart, Inc. or Sedgwick CMS discontinued authorization for treatment and care for [D.F.] by the Respondent herein during the specified dates of service. * * * The issues raised by Wal-Mart, Inc. and Sedgwick CMS are utilization review issues, not appropriate for resolution in reimbursement dispute resolution proceedings under section 440.13(7), Florida Statutes. The utilization issues were resolved by the Department in its MSS Case No. ROV00039 and Department Case No. 143376 [i.e., the case against Dr. Villalba that was dismissed via Consent Order]. Therefore, this Petition for Resolution of Reimbursement Dispute in MMS Case No. 20110531-001 is hereby DISMISSED.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order dismissing the Petition for Formal Administrative Hearing. DONE AND ENTERED this 19th day of February, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 19th day of February, 2016.
The Issue The issues in this case, as set forth in the Prehearing Stipulation, are as follows: Whether Respondent was terminated from the State Medicaid Program; [Case No. 14-2488, Count I] Whether Respondent failed to update his practitioner profile within fifteen days of the filing of the order terminating him from the State Medicaid Program; [Case No. 14-2488, Count II] Whether Respondent exercised influence within the patient-physician relationship with T.J.[1/] for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with T.J.; [Case No. 14-1342, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with M.B. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with M.B.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with C.J. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with C.J.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with D.K. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with D.K.; [Case No. 14-1343, Counts I & II] Whether Respondent exercised influence within the patient-physician relationship with A.H. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with A.H.; [Case No. 14-1343, Counts I & II] and Whether Respondent exercised influence within the patient-physician relationship with S.D. for the purposes of engaging in sexual activity and/or whether Respondent engaged in sexual conduct with S.D. [Case No. 14-1343, Counts I & II]
Findings Of Fact Petitioner, Department of Health, Board of Medicine (the “Department”) is the State agency responsible for licensing and monitoring physicians in the State of Florida. The Department regulates the practice of medicine in accordance with section 20.43 and chapters 456 and 458, Florida Statutes. Unless specifically stated otherwise herein, all references to Florida Statutes will be to the 2014 codification. Respondent is a licensed Florida physician, certified in the area of pain management, holding license number ME 97134. At all times relevant hereto, Respondent was practicing medicine at one of two locations: the Back Authority for Contemporary Knowledge, (a pain management clinic known as the “Back Center” located in Melbourne, Florida); and Advantacare (in its Altamonte Springs and Daytona Beach offices). Respondent was employed at the Back Center from January 2008 through September 2011, and at Advantacare from March 2012 through April 2013. Respondent provided pain management services for numerous patients during his tenure at each of the clinics. While at the Back Center, he saw 50 to 60 patients per day in an 8-hour workday, doing about 15 medication injections per day. At Advantacare he was seeing about 30 patients per day. By all accounts, Respondent is a skilled and proficient pain management physician. At Advantacare, Respondent would see patients for regular office visits at the Altamonte Springs office on Monday, Tuesday, Thursday, and Friday; Wednesday would be set aside for administering injections under a fluoroscope, described as sort of a C-shaped X-ray machine, performed at the Daytona Beach office. None of the sexual behavior alleged in the Administrative Complaints occurred during injections performed under fluoroscope. A general policy existed at the Back Center that required physicians to have another facility employee (medical technician, nurse, other) present in an examination room when a physician was providing care to a patient not of the same gender as the doctor. This “chaperone” policy is standard in the health care industry. There is no credible evidence that Respondent was ever shown the Back Center’s policy in writing, although it is probable the policy was accessible on the website of the entity (Osler Corporation) that owned the Back Center for a period of time. As a practicing physician, Respondent was also presumed to be aware of and to follow the chaperone policy and he admitted knowing about the policy in general. Respondent was, however, verbally apprised of the policy by his supervisor, Dr. Hynes, by the clinic operations manager, Mr. Pachkoski, and by the chief administrative officer, Cathy Bird. Respondent acknowledged that it was best to have another person in the examination room if he was providing treatment to a female patient. If no chaperone was available, it was his stated practice to keep the door open. Respondent did not feel like assistants were always available to chaperone, but neither his supervisor (Dr. Hynes) nor a co-physician (Dr. Zaidi) remembers Respondent complaining that staff was not available at the Back Center. The testimony of all six complainants in this case contradicts Respondent’s contention; each of them said they were treated by Respondent (alone) in a room with the door closed. When asked directly whether he ever treated female patients at the Back Center in a room with the door closed, Respondent admitted that it happened on occasion. The best and most persuasive evidence in this case is that a chaperone policy did exist and that Respondent did not follow the policy. Between September 2008 and January 2013, Respondent treated six female patients who are the subjects of the Department’s Administrative Complaint. Each of the patients is identified only by their initials in an attempt to maintain their confidentiality and privacy. The six patients will be addressed in chronological order based on the dates of their alleged mistreatment by Respondent. Patient S.D. Patient S.D. was a patient of Respondent between September and December 2008. S.D.’s status as a patient was stipulated to by the parties.2/ While she was Respondent’s patient, S.D. was also an employee of the Back Center. During the period of time Respondent was treating S.D., they engaged in a series of emails which could be construed as very sexual in nature. For example, on September 23, 2008, Respondent and S.D. had the following email exchange: S.D. – “You buying Dinner….Or am I your [f***ing] dinner????”Respondent – “What do you think? I want u as breakfast, lunch and dinner. My precious love.” S.D. – Ok so what am I going to eat LOL??? Let me guess a protein shake”Respondent – “If I shake it hard enough yes.” Then, on September 25, the two had this email exchange:Respondent – “NO I WANT U TO FEED ME!!! AND NO YOU R NOT GOING THERE!!! ABSOLUTELY NOT!!! I’M UR MAN AND I SAY NO.”S.D. – “Then act like it and stop flirting with the [f***ing] skank!”Respondent – “WHY? GETTING JEALOUS SWEETHEART?”S.D. - “No I guess I have no reason to be.” Respondent – “EXACTLY, YOU HAD ME AT LUNCH AND LEFT TO GO TO WORK. SO YOU CAN’T SAY ANYTHING, PRECIOUS.” Respondent denies that the exchange of emails with S.D. suggests anything of a sexual nature. He said, e.g., that in his Iranian culture, talking about eating someone was tantamount to saying you cared deeply for them. Respondent’s denial of the sexual nature of the emails is not persuasive. S.D. did not testify at final hearing nor was her testimony preserved by way of a deposition transcript. The Department offered into evidence an exhibit comprised of various emails between S.D. and Respondent, two of which were discussed above. At least one co-worker, Lizamar Korfhage (a physician’s assistant at the Back Center), heard S.D. yell loudly in the office--as S.D. was being terminated from employment--that she (S.D.) and Respondent were having sexual relations. Cathy Bird, former chief administrative officer at the Back Center, had discussed the alleged affair with S.D. during several conversations before S.D.'s employment with the Back Center ended. Bird also talked with Respondent about the situation after S.D. was fired from the Back Center. Respondent was concerned that S.D. would tell Respondent’s wife about the affair and sought Bird’s guidance in the matter. Based upon the entirety of the clear and convincing evidence presented, Respondent was involved in a sexual relationship with S.D. at some point in time when S.D. was also a patient of the Back Center. Patient T.J. Patient T.J. was a 37-year-old patient when she saw Respondent at the Back Center on October 29, 2010. T.J. had seen Respondent professionally some 16 or so times previously. No inappropriate conduct had occurred on any of those visits. On the October 29 visit, T.J. was escorted into an examination room by a nurse as usual. Respondent came in and, after examining her, suggested that trigger point injections might help alleviate her pain, which she described as being a “2” on a scale of 1 to 10.3/ She agreed to the plan of treatment. Respondent had T.J. sit on an armless stool and lean her arms and head onto a desk. Respondent stood on her left side and began administering injections into her neck. As he leaned against her body, T.J. felt what she described as Respondent’s erect penis rubbing on her upper arm or shoulder. She felt like Respondent was intentionally rubbing her in what she later concluded to be a sexual manner. When he finished the injections, Respondent did not act any differently than usual. T.J. felt like something “weird” had just happened, but decided not to report it because she was not completely sure about her perceptions. Respondent, in contradiction to T.J.’s testimony, said he generally stayed four to five inches away from his patient when administering the injections, but would sometimes come into contact with them. T.J. returned for a follow up visit on November 24, 2010, receiving another injection by Respondent. She reported no misconduct by Respondent on that date. On December 23, 2010, T.J. returned to the Back Center for additional treatment. This time, her pain was radiating all the way down to her buttocks area and was described as a “3” out of 10. She was again escorted to an examination room to wait for Respondent. Respondent came in and closed the door, as was his usual practice during T.J.’s visits. After examining her, Respondent suggested injections for sacroiliac joint pain. T.J. was told to lie on the examination table on her left side. Respondent had T.J. lower her jeans to just below her knees. She had her left leg out straight and her right leg bent at the knee and across her left leg. Respondent then began to press his fingers on different parts of her inner thigh searching for the source of her pain. The pain was centered between her knee and buttocks area, and Respondent made an injection in that area. Respondent then had T.J. roll over to her right side as he pulled the table slightly away from the wall and placed himself between the wall and the table. Respondent began pushing on her inner thigh again, starting at her knee and moving upward toward her buttocks. As he did that, his tone of voice changed and he began panting. He continued to touch and probe her thighs as his hands went higher until he ultimately touched her vagina. T.J. immediately said, “That’s it” and quickly got off the examination table and pulled up her jeans. Respondent appeared sweaty and red-faced, looking to T.J. like a person who had just engaged in sex. T.J. then began to consider whether Respondent’s behavior during the October 29, 2010, visit had indeed been sexual in nature as well. She concluded that it was, and decided not to see Respondent for treatment in the future. She did not, however, report either of the incidents to the Back Center immediately. She ultimately did so, telling physician's assistant Korfhage about the incident some 10 months later. After seeing a report on television in 2013 that Respondent had been accused by another patient of sexual misconduct, she decided to make a report to the police about her own experiences with Respondent. When the police did not prosecute, she contacted an attorney in order to file a civil action against Respondent. T.J. appeared to be honest and forthright during her appearance at final hearing. Her testimony about her version of the events was credible, clear, and convincing. In his testimony at final hearing, Respondent did not specifically refute T.J.’s testimony so much as he explained how his normal process would not allow for the kind of touching T.J. alleged to have occurred. Respondent did not specifically or directly deny touching patient T.J.’s vagina, saying only that there would be no reason to do so. Patient D.K. (also known as D.W.) D.K. was a regular patient of Respondent and the Back Center. She had an appointment on January 13, 2011, to see Respondent for pain she was experiencing in her lower back and sides. On previous visits to the Back Center, Respondent had done localized injections to help D.K. deal with the pain. On those visits, she had simply rolled her pants down below her waist and leaned against the examination table in order for Respondent to do the injections. On the January 13 visit, she was told to lie on the table and pull her jeans down to her knees while Respondent went to prepare the medications. Respondent returned, closing the door as he came into the room. Respondent began injecting medications into her back and both sides. He then moved lower and administered injections into her thighs although she had not complained about any pain in that area. Respondent then moved her jeans down to her ankles and began administering injections into her calves. While he was injecting her, she felt him rubbing his erect penis against her thighs and heard his breathing get heavier. She could also feel Respondent lean closer to her and felt his breath on her thighs as he injected her calves. After the injections were complete, D.K. said Respondent was sweating, flushed, and “looked like my husband after we’ve had intercourse.” D.K. left the office and returned to her car. She immediately began to mentally process what had occurred to her, but did not immediately tell anyone at the Back Center. She was shocked and upset by the event but waited a few days before telling her husband what had happened. She then reported the events to someone at the Back Center. The Back Center asked her to come in so she could discuss the situation with Dr. Hynes, medical director of the Back Center. Later, D.K. made a complaint to local law enforcement about the incident. D.K. has also contacted an attorney to look into filing a civil lawsuit against Respondent. In response to the complaint by D.K., Dr. Hynes mandated that Respondent have a medical assistant with him during any contact with female patients. Despite the prohibition, Respondent continued to see female patients in an examination room without others present. He was confronted several times by the site operations manager about this violation, but Respondent did not change his behavior. D.K. was a credible witness. She provided a clear and unequivocal description of what transpired during her visit to the Back Center on January 13, 2011. Patient C.J. Patient C.J. presented to the Back Center experiencing pain as a result of shrapnel wounds received while she was serving in the U.S. Army in Afghanistan. C.J. did not testify at final hearing so her physical demeanor could not be assessed. Her deposition transcript was admitted into evidence over objection. In May 2011, C.J. was referred to the Back Center by her treating physician at Patrick Air Force Base. She took the referral, called the Back Center, and was assigned to Respondent for pain management services. C.J. went to the Back Center on May 4, 2011. She was experiencing significant pain and was physically uncomfortable. C.J. was processed in by a receptionist and then led to an examination room by a female employee. The employee took C.J.’s blood pressure, gathered some personal information, and left the room. On that date, C.J. was wearing jeans, a blouse, and open- toed shoes. She had on “full underwear” that day. Respondent came into the room and examined C.J. as she sat on the examining table. He advised C.J. that an injection might benefit her. As C.J. remembered it, the injection was to be in the side of her neck, and then in her back or hip. Respondent left the room to obtain the medications as C.J. waited. Upon his return to the room, Respondent injected Depo- Medrol 40 mg, Toradol 30 mg, Lidocaine 2% 0.5 mL, and Marcaine 0.5 mL into the left side of her neck. After the initial injection, Respondent left the room while the medication took effect. C.J. began to feel very relaxed and sleepy. Respondent recollects that C.J. complained of feeling light-headed, but does not believe any medication he injected would have caused that to happen. Respondent later returned to the room and prepared to give C.J. another injection into her hip area. She sat up on the table as Respondent pulled one end of the table slightly away from the wall.4/ After moving the table, Respondent had C.J. lie down on her side, lift her blouse, and unbuckle her jeans. She then slid her jeans and underwear down past her hips as directed. At that point, Respondent began injecting a solution into C.J.’s hip. As the injection was proceeding, she felt Respondent slide his hand over her hip and “in my groin area.” While doing that, Respondent’s crotch was pressed against C.J.’s buttocks. C.J. felt what she believed to be Respondent’s erect penis pushing against her buttocks as he administered the injection. After the injection was completed, Respondent came around from behind the table and told C.J. she would need to come see him again in a few weeks. C.J. got up from the table and began to realize that “something was not right” about the treatment she had just received. When C.J. went to the front desk to check out, she asked a nurse to identify the medications which had been injected but was unable to get that information. C.J. then left the Back Center and immediately called her nurse case manager at Patrick Air Force Base to report what had occurred. Her nurse advised C.J. to call 911 to report the incident; C.J. did so as she walked out to her car in the parking lot. A policeman arrived some 20 minutes later and took her statement. The officer then went inside to talk to Respondent. He said Respondent appeared to be surprised and shocked by C.J.’s allegation. The police decided not to file any charges against Respondent based on C.J.’s complaint. The reporting police officer (Middendorf) seemed to question C.J.’s veracity or truthfulness on the day of the incident. He said C.J. was upset and seemed lethargic, except when she was talking on the telephone to “one of her superiors.” According to Middendorf, C.J. acted consistent with someone who may be under the influence of drugs. He did acknowledge that C.J. had just come out of a pain management clinic. Middendorf also felt C.J. was either confused or not telling the truth concerning where Respondent had allegedly touched her. C.J., who was obviously distraught at the time, indicated both her pubic area and her outer thigh when she told Middendorf that Respondent had touched her “groin.” Middendorf challenged her about that and C.J. became defensive and argumentative. He did not provide any credible testimony as to why he believed she might be lying to him. His statement that C.J.’s voice changed when she was talking to her office on the phone is not conclusive evidence that she was not telling him the truth. C.J. never returned to the Back Center. She obtained pain management treatment elsewhere. Inasmuch as C.J.’s demeanor could not be judged because she did not appear in person, her testimony must be considered using other factors. In this case, the testimony was very similar to the facts described by other patients of Respondent concerning their treatment by him. The events as described by C.J. were believable and convincing, especially when compared to the allegations by other alleged victims. Neither C.J. nor any of the other alleged victims/complainants has talked to other alleged victims about their experiences, so there does not appear to be any collusion between the victims. Patient M.B. Patient M.B. was already a regular patient at the Back Center when she first saw Respondent on July 7, 2011. Respondent’s notes in M.B.’s chart indicate the patient was presenting for “initial evaluation” that day, but that was not correct; she had already been seen several times by other physicians at the Back Center. M.B. had chronic lumbalgia (low back pain) and lower extremity dysesthesia (a burning sensation) which was increasing progressively. Respondent examined M.B., discussed his findings, and scheduled a follow-up appointment for August 2, 2011, at which time he gave her an injection of 1% Xylocaine with approximately 30 ml of Lidocaine 1% on both of her side hips. He also injected a block with a solution containing 2 ml of Marcaine 0.5%, 2 ml of Lidocaine 2%, and 2 ml of Depo- Medrol 80 mg into M.B.’s joints. M.B. reported no suspicious or untoward behavior by Respondent during the July 7 and August 2 appointments. On August 29, 2011, M.B. returned to see Respondent. She presented with pain in her hips and left side. Nurse Bobbi McDonald escorted M.B. to the examination room and took her vital signs before leaving. Respondent came into the room, alone, and closed the door. At that visit, M.B. was wearing khaki mid-thigh cargo shorts, a blouse that tied around her neck, and bikini underwear. Respondent asked about her pain, touched points on her body to identify the exact pain locations, and adjusted her back manually. He then suggested injection of a steroid as a stop-gap measure prior to scheduling her for a fluoroscope injection later. M.B. agreed to the plan. Respondent left the examination room to get the medication. When he returned, he was alone and again he closed the door. Respondent told M.B. to pull her shorts down below her waist and to cover herself with a paper gown. She pulled her shorts and underwear down about halfway across her buttocks, which was lower than she would normally pull them for fluoroscope injections. Respondent began to clean the area for the injection and asked M.B. to pull her garments down further, below her buttocks. Respondent then pulled the table out from the wall and he went between the table and the wall. He injected M.B.’s hip about five times with a solution containing Depo Medrol 80, Toradol 60, Lidocaine, and Marcaine 1 ml. As he injected her, M.B. could feel Respondent’s groin touching her hip. She could feel what she believed to be Respondent’s erect penis rubbing against her in a back and forth motion. By this time, her paper gown had fallen off, exposing her buttocks and vaginal area. After the last injection, M.B. felt Respondent’s fingers touching her vagina. As she pushed upward to get off the table, M.B. felt Respondent touch her vagina again. She got off the table, pulled up her pants, and sat down as the doctor began talking to her. M.B. did not say anything to Respondent. She immediately believed that she had been sexually assaulted, but was too confused and shocked to say anything to anyone. M.B. did not initially report Respondent’s behavior to the Back Center. She later reported her allegations to the Melbourne Police Department and also filed a civil lawsuit against Respondent and the Back Center. (M.B. would continue to return to the Back Center, but did not see Respondent again for any of her treatments.) M.B.’s testimony was not as immediately believable as that of some of the other witnesses. Based on her personality, fear of the process, or some other factor, she seemed to be fairly emotionless in describing the incident. However, inasmuch as her testimony was corroborated by what other patients had experienced, her clearly enunciated statements are convincing. Further, M.B. exhibited extreme visual cues as to her intense dislike for Respondent at the final hearing. The testimony of M.B. alone would not be clear and convincing evidence of any wrongdoing by Respondent. However, her testimony is corroboration of and support for the testimony of other victims. Respondent's employment at the Back Center was terminated shortly after M.B.'s appointment with him. There is no evidence as to Respondent's employment from September 2011 until he went to Advantacare in March 2012. Patient A.H. Patient A.H. presented to Advantacare (Daytona Beach office) on January 9, 2013, in an effort to address pain she was suffering as a result of an automobile accident that occurred in October 2012. She wanted to reduce her pain while also reducing the amount of medications she was taking. A.H. had a job which required driving, so she needed to be as drug-free as possible. A.H. was escorted to the examination room. She remembers that Respondent came in, closed the door, and propped it shut. Respondent remembers the door to that room being open, that it would open by itself unless something was placed against it. The medical technician assigned to Respondent said the door did not have any problems, but it would always be half open. There is no corroborated evidence as to whether the door to the room was open, closed, or ajar when A.H. was being examined. Respondent examined A.H. and began to show her some exercises and stretches that he thought might alleviate some of her pain. As she was sitting in a chair being shown how to stretch, A.H. felt Respondent’s erect penis pushing against her back. She quickly told Respondent “I’ve got it” in order to stop his actions. She got up quickly and moved to another chair in the office. A.H. clearly described what she had felt and had no confusion or doubt about what happened. Her testimony about the incident was credible. Respondent then told A.H. to lie on the table on her side with her arms stretched out in front of her. Despite what had just happened, A.H. complied with his directions.5/ When she got into position, Respondent had A.H. move her body over to the very edge of the table and began to manipulate her back. As his hands continued down her back, she felt his hands go down inside her panties. As this happened, she could feel Respondent “humping” her, grinding his groin area against her backside. Respondent then told A.H. to change positions on the table, moving her feet to the opposite end. Amazingly, she again complied with his instructions. Respondent began touching her upper thigh near her vagina and “did the same thing he had done before.” At that, A.H. quickly moved off the table and onto a chair, where she sat rigid and refused to move. Respondent seemed calm and relaxed, showing no sign of having acted inappropriately. A.H. did not tell anyone at Advantacare about the incident on that day because she could not fully grasp what had happened. As she began to understand the situation better, she was worried about reporting the incident because it would be her word against the doctor’s. A.H. did tell another doctor (Dr. Jacobson) about the incident when she saw him the next day for a regularly scheduled appointment. Dr. Jacobson had been an employee with Advantacare and presumably relayed A.H.’s allegations to the center. A.H. also reported the incident to the Board of Health and to law enforcement. She later contacted an attorney about filing a civil lawsuit against Respondent. A.H. did not return to Advantacare for treatment after this event because of the traumatic impact of the incident. Respondent has no independent recollection of A.H. as a patient, but said he did not touch her inappropriately. A.H.’s testimony was believable. She was a credible witness and articulated her testimony clearly. It is strange that A.H. would continue to obey Respondent even after he had touched her inappropriately, but she was obviously a compliant person, especially as it relates to physicians. Respondent’s defenses to allegations by patients Respondent claims he never saw a written chaperone policy at the Back Center but that he knew that it existed. According to him, there was insufficient staff available to make it possible to comply with the policy. Respondent’s testimony in this regard is rejected as being contrary to better, more persuasive evidence. Respondent said he was on several medications for “five or six years” prior to the final hearing, including Zoloft for mild depression, Lisinopril for hypertension, and Toprol for hypertension. One of the possible side effects of those medications is impotence or erectile dysfunction. However, during the time he was taking these drugs, Respondent fathered his two children. There is no competent evidence that Respondent suffered from impotence or erectile dysfunction during the time of any of the allegations about sexual misconduct. Respondent usually wore a lab coat when treating patients. The coat is long and had large pockets in the front, at about groin level. Respondent would keep empty syringes in his coat pocket. He suggests that female patients who said they felt his erect penis were actually feeling the syringes. His suggestion is not very plausible or persuasive. Respondent demonstrated at final hearing the normal physical stance he took when doing an injection of a patient in an examination room setting. He suggested that his body would be turned at a 45-degree angle from the patient rather than facing them directly, thus eliminating the possibility of full frontal contact with the patient. He also said that he generally stood four or five inches away from the patient, but might come into contact with the patient occasionally. Neither the statements nor his demonstration were persuasive. Respondent’s contention is that each and every one of the patients who alleged sexual misconduct was lying. He suggests that patient D.K. was overweight and thus would not have sexually aroused him. Also, he maintains that her description of the injections being performed while Respondent was rubbing against her would have necessarily resulted in horrible pain at best or a broken needle at worst. He claims that since patient M.B. was married to a policeman, she would have necessarily taken photographs of her numerous injections to preserve a record and she would have complained immediately. Her failure to do so, he suggests, impugns her testimony. Respondent contends that patient T.J.’s tardiness in reporting her allegations suggests the allegations were false. Respondent refutes A.H.’s allegations on the basis that there was a disagreement as to the physical layout of the medical office. Respondent contends there is no evidence that patient S.D. (his alleged lover) was his patient, even though there is a stipulation to that effect. Despite these speculative defenses, the evidence presented by the alleged victims is credible and accepted as fact. Failure to update practitioner profile A letter dated March 27, 2013, advising Respondent of his termination from participation in the Medicaid Program, was mailed to Respondent at two separate addresses: 2222 South Harbor City Boulevard, Suite 610, Melbourne, Florida 32901, i.e., the address of the Back Center, and 930 South Harbor City Boulevard, Melbourne, Florida 32901, the address for Osler (the company with whom the Back Center merged at some point in time). The letter to 2222 South Harbor City Boulevard was received on April 1, 2013, and an acknowledgement was signed by Chandra Carrender, a Back Center employee. Respondent’s employment with the Back Center had been terminated some 16 months previously, i.e., in August 2011. The letter mailed to 930 Harbor City Boulevard was returned as undeliverable. The termination letter provided Respondent notice of his right to contest the decision. He was given 21 days from receipt of the letter to file a Petition if he wanted to challenge the termination. Respondent did not file a challenge, so on or about June 21, 2013, a Termination Final Order was filed by the Agency for Health Care Administration (AHCA), setting forth Respondent’s termination from participation in the Florida Medicaid Program. The termination was issued pursuant to section 409.913, Florida Statutes. By law, Respondent was required to update his Florida practitioner profile within 15 days of receipt of the Termination Final Order. The Termination Final Order was mailed to Respondent, return receipt requested, at two different addresses: The 930 South Harbor City Boulevard address and the 2222 South Harbor City Boulevard address. Respondent denies having received the letter or TFO until just prior to the formal administrative hearing in this matter. Licensed physicians in the State of Florida are required to maintain a current address of record with the Agency for Health Care Administration (AHCA) and the Department of Health. Neither Respondent nor the Department provided evidence as to what Respondent’s official address of record was at the time the TFO and the letter were sent to Respondent at the two Harbor City Boulevard addresses. According to the deposition testimony of Michael West of the AHCA Medicaid Program Integrity office, the notices were sent to Respondent’s “address of record” per section 409.913(6), Florida Statutes. West’s testimony, however, did not specify what address that was. It might be logically presumed that one or both of the Harbor City Boulevard addresses were the “address of record,” because that is where the notices were mailed. However, there is no clear and convincing evidence as to Respondent’s official address of record at the time the Termination Final Order was mailed. The statutory section referred to by West states: Any notice required to be given to a provider under this section is presumed to be sufficient notice if sent to the address last shown on the provider enrollment file. It is the responsibility of the provider to furnish and keep the agency informed of the provider’s current address. United States Postal Service proof of mailing or certified or registered mailing of such notice to the provider at the address shown on the provider enrollment file constitutes sufficient proof of notice. Any notice required to be given to the agency by this section must be sent to the agency at an address designated by rule. Respondent did not update his Florida practitioner profile because he claims never to have received a copy of the TFO or the letter. Neither Respondent nor the Department provided direct evidence of Respondent’s “address last shown on the provider enrollment file” as of March 27, 2013.6/ Other factual considerations Respondent was terminated from employment at the Back Center in September 2011. The termination occurred as follows: T.J. reported the alleged October 29, 2010 incident in April 2011. Dr. Hynes was already aware of another incident (from D.K. in January 2011). Dr. Hynes met with Respondent to discuss his alleged behavior. Respondent denied the allegations, saying that people just seem to like him and take advantage of him. He said the patients were lying about the incidents. Dr. Hynes mandated at that time that Respondent have a chaperone in the examining room with every female patient. Rather than being allowed to exercise “medical judgment” like other doctors in the clinic, Respondent was ordered to always use a chaperone with all female patients. After patient C.J.’s allegations came to light in May 2011, Dr. Hynes told Respondent that three times was enough; something had to be done. The Back Center commenced preparation of a termination letter. The letter was to tell Respondent that, pursuant to his Employment Agreement, the Back Center was providing him the 180-day notice of termination of employment “without cause.” The purpose of that letter was to allow Respondent time to find a job and not have a blemish on his record. One of the bases for the termination letter was that Respondent had been referred to the Physicians Recovery Network (PRN) for counseling to address his behavior. Dr. Hynes presumed Respondent was obtaining that counseling. However, when C.J. reported the incident on May 4, 2011, Dr. Hynes found out that Respondent had not been going to PRN as he had previously indicated. At about the time the 180-day letter was being drafted, another incident (by patient M.B.) was reported to the Back Center. Upon hearing of that allegation, Dr. Hynes verbally fired Respondent, effective immediately, with cause. The 180-day letter was not actually delivered to Respondent until after the verbal termination, so the letter was moot when it arrived. Respondent did not tell his next employer, Advantacare, that he had been terminated from employment by the Back Center. He also did not advise Advantacare about the sexual allegations made by patients at the Back Center. In summary, Respondent engaged in activities of a sexual nature with patients at the Back Center in December 2010, January 2011, May 2011, and August 2011 (in addition to his relations with S.D. in 2008–2010). He engaged in sexually related touching of a patient at Advantacare in January 2013. His employment with the Back Center was terminated in September 2011; his employment with Advantacare was terminated in April 2013. Former patients of Respondent expressed dismay that he was being charged with the violations set forth in the Administrative Complaint. They found Respondent to be a caring and professional doctor. It is clear Respondent did not treat all his patients the same way he treated the victims identified herein. Some of his co-workers said they did not see Respondent engage in any of the alleged actions. They did not receive any complaints from other patients. Respondent obviously has a stellar reputation with some of his patients and co-workers. That status, however, does not excuse his behavior with the victims in the present cases. It is also alleged that Bobbi McDonald was a rumor-mongerer and a liar. She appeared credible at final hearing and there is no competent, substantial evidence to support the dispersions cast by others. It should be noted that several witnesses identified by Respondent were displeased with the manner in which they were questioned by Department personnel prior to the final hearing. The witnesses expressed extreme discomfort when Department employees (attorneys) suggested that Respondent was “an addict” or a sociopath. While a state agency is bound to pursue all claims against individuals which it is responsible for licensing and monitoring, it is improper to harangue or disparage such persons in order to sway potential witnesses’ testimony. Upon full review of the evidence in this case, the potential witnesses who complained about the Department’s aggressive nature did not provide substantive testimony on the issues of this case. Thus, any harm which may have resulted from the Department’s statements would not affect the final decision herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health revoking Respondent, Albert Esmailzadeh, M.D.’s license to practice medicine in the State of Florida. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case, and that payment of such costs be assessed against Respondent, Albert Esmailzadeh, M.D. DONE AND ENTERED this 19th day of November, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 19th day of November, 2014.
