Findings Of Fact Each of the Petitioners qualified and took the State of Florida examination in July 1987 for licensure as a podiatrist. Initially, there were nine Petitioners in these proceedings, but four were subsequently given a passing grade on review of their examinations, and these four Petitioners were dismissed. Each of the Petitioners successfully passed national board examinations for podiatrists prior to sitting for the July 1987 examination here at issue, and all failed to receive an average grade of 75% on the nine subjects on which they were examined. The questions included in the July 1987 examination were taken from a large group of questions assembled into each category or subject on which the applicant for licensure is tested. To compile these questions and put together an examination, a group of experts in the field of podiatry was assembled to determine the subjects to be included on the examination. These subjects were subsequently enacted in Rule 21T-11.002, Florida Administrative Code. These subjects were referred to "item writers", generally academicians in the field of podiatric medicine, each of whom prepared a minimum of 50 questions on each subject. Upon return of these questions to Respondent, these items were reviewed by five content specialists on the Board of Podiatry to insure the validity of the questions and then placed in the item bank from which a certain number from each subject is withdrawn for the examinations. Not all of the items submitted by the item writers are found valid in this review and added to the item bank. For the 1987 examination, no new items were entered, and all questions used were taken from the item bank. Accordingly, most of the questions had been used on earlier examinations. In selecting questions for the 1987 examination, certain questions used on the 1986 examination were used so the group being examined in 1987 can be compared to the group examined in 1986. Comparing the correct answers given by the 1986 group of examinees to these questions common to both examinations, with the correct answer given by the 1987 examinees, showed the earlier examinees performed better than the group in which these Petitioners were examinees. Projecting that percentage to the entire examination shows the 1986 examinees scored five to eight points higher than the 1987 group overall. When the 1987 examinations were scored initially, only some 31% of those taking the examination received a passing grade. These scores were obtained from a computer scoring of the answer sheet submitted. Following receipt of these results, those questions which were marked incorrectly by the highest number of examinees were reviewed and submitted to the Board for review. As a result of this review, some of those questions were credited as being correct if another choice than the correct choice were selected by the examinee or if the exam key was in error. The tests were regraded, and those scores were sent out to the candidates with a notice of their right to challenge questions and answers. Following the candidates being given an opportunity to review the questions and answers on their individual examination with DPR personnel, the Test Development Specialist at DPR, Mrs. Hall, who is in charge of preparing the podiatry examination, again reviewed the questions and answers and presented to the Board a list of questions (by number) for which a large number of examinees had submitted an incorrect answer, to have the Board reconsider to determine if these questions were too difficult and to give credit for any answers as correct. As a result, the Board gave additional credit to all examinees, and four of the original nine Petitioners received a passing grade. A total of 57 adjustments were made in these scorings involving miss-keys, ambiguous questions and too difficult questions. Petitioner presented two witnesses who purported to testify to the merits of this challenge. Dr. Black is a podiatrist at Bay Pines Veterans Administration Hospital near St. Petersburg who operates a residency program in which he has trained four residents each year for the past five years. Petitioner Ellison is the only resident in Dr. Black's program who failed the Florida Podiatry examination, and Dr. Black considers Ellison to be as fully qualified for licensure as the other residents who completed the program and passed the examination. Petitioners' other witness, who was also not a Petitioner, was James F. Pruchniewski. This witness was an original Petitioner who received a passing grade on a regrading of the examination and withdrew his petition for hearing. Dr. Pruchniewski opined that the July 1987 podiatry examination was "inferior". He had earlier been a science teacher in high school and had frequently checked examinations prepared by fellow teachers. He has never been involved in preparing professional examinations, but considers the initial 31% passing rate to be outrageously lopsided. In view of this witness' lack of experience or training in preparing or grading professional examinations, his opinions are given little weight.
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning the Administrative Complaints for LIFE CARE CENTER OF SARASOTA, CON 7904, LIFE CARE CENTER OF ORANGE PARK, CON 7737, LIFE CARE CENTER OF NEW PORT RICHEY, CON 8813, LIFE CARE CENTER OF PORT ST. LUCIE, CON 8975, LIFE CARE CENTER OF OCALA, CON 7923 AND LIFE CARE CENTER OF MELBOURNE, CON 3828 collectively known as Life Care Centers of America (hereinafter "Life Care") which the Agency filed the Administrative Complaints for Life Care's failure to comply with Medicaid conditions placed on the CONs. Composite Exhibit 1. The parties have since entered into a Settlement Agreement. Exhibit 2. It is ORDERED that: The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. The Settlement Agreement is attached hereto and made a part hereof. The parties are directed to comply with the terms of the Settlement Agreement upon payment of any fines. The Respondent shall pay the Agency a total of $5,780.00 within 30 days of the date of this Final Order. The total amount is divided among the cases as such: Case Number 2008013528 - $323.00 Case Number 2008013522 - $663.00 Case Number 2009000372 - $1,663.00 Case Number 2009000369 - $1,530.00 Case Number 2009000371 - $1,365.00 Case Number 2008013532 - $236.00 A check made payable to the "Agency for Health Care Administration" and containing the AHCA ten-digit case numbers should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 The above-styled cases are hereby closed. DONE AND ORDERED this Z--1 day of 011, in Tallahassee, Florida. Elizab Agen tion
Other Judicial Opinions A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE 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 PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this '/,:r: day of RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 COPIES FURNISHED TO: Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Attorney for Life Care Centers of America (U. S. Mail) James H. Harris, Esquire Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Richard Joseph Saliba, Esquire Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) MAR-17-2009 10:39 AGENCY HEALTH CARE ADMIN Mar 17 2009 10=25 850 921 0158 P.08 STATE OF PLORXDA
The Issue Whether the Petitioners have alleged facts sufficient to prove their standing to challenge the Respondent's proposed amendment to Rule 21-18.002, Florida Administrative Code?
Findings Of Fact The Florida Society of Opthalmology, Inc., Emanuel Newmark, M.D. and Waite S. Kirkconnell, M.D)., filed a Petition to Determine The Invalidity of a Rule (hereinaffter referred to as the "Petition"), with the Division of Administrative Hearing on May 29, 1990. In the Petition the Petitioners challenged the validity of a proposed amendment to Rule 21-18.002, Florida Administrative Code (hereinafter referred to as the "Rule Amendment"). The Rule Amendment was filed with the Secretary of State on March 3, 1990, with the Rule Amendment to take effect on May 7, 1990. The Rule Amendment allows licensed, certified optometrists to administer and prescribe certain Steroids and certain Steroid/Sulfonamide combinations. It is alleged in the Petition that the Petitioner, Florida Society of Ophthalmology, Inc. (hereinafter referred to as "FSO"), is: a Florida not-for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians, specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of Florida ophthalmologists, improve quality of health care administered to the public, and to educate the public to its needs for adequate health care. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. Pages 1 and 2 of the Petition. The following allegations concerning Dr. Newmark and Dr. Kirkconnell are included in the Petition: That Petitioner, DR. NEWMARK, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. NEWMARK maintains an office for the practice of medicine in Atlantis, Florida. Petitioner, DR KIRKCONNELL, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. KIRKCONNELL maintains an office for the practice of medicine in Tampa, Florida. Both physicians specialize in the field of ophthalmic medicine or ophthalmology. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. 3. That Petitioners DR. NEWMARK and DR. KIRKCONNELL file this Petition on behalf of themselves and all other persons similarly situated; i.e., licensed Florida physicians practicing ophthalmic medicine in the State of Florida. These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. Page 2 of the Petition. The Petition contains two Counts challenging the Rule Amendment. In support of the Petitioners' standing, the following allegations are contained in Count I: That the Rule Amendment purports to authorize the practice of medicine by persons who are not licensed to practice medicine by chapters 458 and 459, Florida Statutes, thereby adversely affecting Petitioners' property right to practice medicine. That Petitioners are concerned with protection of the public by ensuring that persons engaged in the various health care professions are qualified to do so, and Petitioners believe that the Rule Amendment with illegally authorize certified optometrists to adversely affect the public health through utilization of drugs which they are not qualified to prescribe, administer or monitor. Page 5 of the Petition. In Count II of the Petition, allegations almost identical to paragraph 17 of the Petition are made. On June 13, 1990, the Intervenors filed Intervenors' Motion to Dismiss. On June 27, 1990, the Petitioners filed Petitioners' Response to Respondent's [sic] Motion to Dismiss. On June 28, 1990, the Petitioners filed Amendment to Petitioners' Response to Respondents' [sic] Motion to Dismiss correcting the title of the Motion and correction of a citation to a court decision contained in the Motion. In the Petitioners' Response to Respondent's [sic] Motion to Dismiss the Petitioners state the following: The pleadings allege adequate facts in the following paragraphs from the petition: ".... improve quality of health care administered to the public, and to educate the public to its needs for adequate health care . . . .... Many of Petitioners' patients also visit optometrists for some of their vision care needs .... .... These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. The Petitioners also quoted paragraphs 17 and 26 of their Petition. Pursuant to written notice a motion hearing was held on July 3, 1990, to consider the Intervenors' Motion to Dismiss and other motions previously filed by the parties. Following oral argument of the parties, the parties were informed that the Intervenors' Motion to Dismiss would be granted. The FSO and the individual ophthalmologists in Board of Optometry v. Society of Ophthalmology, 538 So. 2d 878 (Fla. 1st DCA 1989), cert. denied, 545 So. 2d 1367 included the following allegations of fact concerning their standing in their Petition in that case: 1. Petitioner FSO is a Florida net- for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians (M.D.'s and D.O.'s) specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of the Florida ophthalmologists. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. In addition to the representation of its members, FSO is committed as an organization to protecting, maintaining and improving the quality of eye care which is available to the public. 3. Petitioners Broussar, Patrowicz, and Byerly are physicians licensed by the State of Florida pursuant to Chapter 458, Fla. Stat. Broussard maintains an office for the practice of medicine in Melbourne, Florida; patrowicz in Mount Dora, Florida; and Byerly in Tallahassee, Florida. Each physician specializes in the field of ophthalmic medicine opthalmology. Ophthalmology consists of the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery and corrective lens and prisms. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. . . The following allegations were included in the petition in Board of Optometry, concerning the substantial affect on the FSO and the individual opthalmologists: The physician Petitioners and a substantial number of the members of the association Petitioners are substantially affected by the Board's proposed certification of any optometrist as a certified optometrist in the following ways: Petitioners believe that the certification of optometrists, and the concomitant authorization of such certified optometrists to use and prescribe medications in their practice of optometry encroaches on the right of physicians licensed to practice medicine pursuant to Chapter 458, Fla. Stat. The right to practice medicine is a valuable property right in Florida, and subject to the protection of the due process clauses of the Florida and United States Constitutions. Petitioners have been denied due process in regard to the impending infringement on or diminution in value of their property rights. Petitioners also believe that the quality of eye care and health care available to the public will decline as optometrists are certified to use and prescribe medicine in the practice of optometry. Petitioners believe that allowing optometrists to administer and prescribe drugs presents a danger to the public, including but not limited to Petitioners' patients. Petitioners believe that the general public is uninformed as to the distinction between optometrists and ophthalmologists, when in fact significant differences exist in education, training, ability, experience, and scope of practice. The designation of some optometrists as "certified optometrists" further adds to the confusion and will result in the treatment by optometrists of patients who should be treated by Physicians. This not only will result in economic injury to physicians, including the. physician Petitioners and all other similarly situated, but also in injury to their practices, loss of public respect for their profession, and to the health and welfare of Petitioners' patients and the patients of other similarly situated physicians.
Findings Of Fact Petitioner Samuel Scardino is an optometrist who is currently licensed as such in the states of California, Illinois, Kentucky, and Michigan. He graduated from the Illinois College of Optometry in 1978, and successfully passed all parts of the National Board of Optometry examination in the same year. He has been a practicing optometrist in Battle Creek, Michigan, since 1978. (Testimony of Petitioner, Petitioner's Exhibit 4) By application dated May 10, 1983, Petitioner applied to take the Florida optometry examination. His application was received by Respondent on May 13, 1983. Petitioner's application was approved pursuant to Respondent's Rule 21QER83-1 which amended Rule 21Q-4.01, Florida Administrative Code, on May 19, 1983, to provide that an applicant must have obtained a qualifying score on the national examination within five years prior or two years subsequent to the date of passage of the state examination. It also provided that a passing score of 75 must be obtained on the pharmacology section of the national examination in 1983, or subsequent thereto, within five years prior or two years subsequent to passage of the state examination. By letter of May 18, 1983, Respondent acknowledged receipt of Petitioner's application and $250.00 fee, but indicated that the application was incomplete in that a final transcript must be sent by his school, and also that the National Board report of passing grades within the past five years and the pharmacology section in 1983 with a score of 75 or above were required. Petitioner complied with these requirements and received an admission card for the optometry examination to be held in July of 1983. Petitioner took the examination at that time and received notice in September 1983 that he had failed the pharmacology/pathology portion of Part II of the examination with a grade of 61. A review of Petitioner's objections to the grade resulted in a further letter from Respondent, dazed December 23, 1983, which advised Petitioner that the Board of Optometry review committee had reviewed the matter and changed his final grade for the pharmacology/pathology portion of the examination from 61 to 65, but that a final grade of 70 percent or better was required to achieve a passing status. He was thereupon advised of his right to a hearing under Section 120.57, Florida Statutes. (Testimony of Petitioner, Petitioner's Exhibit 1, 5-8, Respondent's Exhibit 1) On March 19, 1984, Petitioner filed an application for optometry reexamination with the Respondent, together with the $250.00 reexamination fee. The state application form for reexamination did not ask for any information concerning the National Board of Optometry examination, as did the original application form. Respondent's Rule 21Q-4.02, Florida Administrative Code, pertaining to reexamination, provided pertinently as follows: 21A-4.02 Reexamination.-- An applicant who fails either Part I or Part II of the state examination for licensure shall be required to retake only that part of the examination on which he failed to achieve a passing grade, provided that the applicant shall be limited to two retakes within a two year period from the date of original failure. If the applicant fails to achieve a passing grade as provided above, he shall be required to take the complete state examination for licensure in order to be entitled to be licensed as an optometrist. Reexamination shall be conditioned on payment of the reexamination fee. Respondent advised Petitioner by an undated letter which he received on April 7, 1984, that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application to take the 1984 examination. The letter further stated that 1983 was his last year of eligibility for examination under his 1978 National Board scores and that he had not been successful in his 1983 Florida examination. The letter enclosed an application for refund of his $250.00 fee for the 1984 examination. Petitioner thereafter spoke with the Executive Director of the Board of Optometry who indicated that the Board would be evaluating his and other questions of candidates at their May 4, 1984 meeting. (Testimony of Petitioner, Gardner, Petitioner's Exhibits 2, 9, 11) The minutes of a meeting of the Board of Optometry on May 3, 1984, contains the following item: Examination 1984 - After discussion with Board Counsel, the Board reiterated that Examination candidates must have passed all parts of the National Board within 5 years prior to application to take the Florida examination in order that all candidates who pass the Florida examination are immediately eligible to apply for licensure. Any candidate who applies to retake the Florida examination must also meet the requirements of passing the National Board within 5 years of applying to retake the Florida examination. All requirements of 21Q-4.01 apply to all candidates and no waiver of requirements shall be granted. Motion by Dr. Walker, seconded by Mrs. Chambers. Passed unanimously. The Board's Executive Director advised Petitioner of the action taken by the Board in a letter of May 14, 1984. He was also informed by this letter that if he completed the National Board requirements prior to the 1985 examination and applied for such examination, he would be required only to take the practical portion of Part II of the Florida examination, but that if he were not licensed in 1985, he would be required to take the entire Florida examination. After receiving the letter, Petitioner submitted his application for refund of the $250.00 reexamination fee which was approved on April 4, 1984 and thereafter paid to Petitioner. By Petition dated June 19, 1984, Petitioner requested an administrative hearing to contest the Respondent's denial of his application to retake the Florida optometry examination which was scheduled for August 1984. The instant rule challenge was subsequently filed in September 1984. (Testimony of Petitioner, Gardner, Petitioner's Exhibit 10) The policy statement announced by the Board at its May 3, 1984, meeting that applicants for reexamination must have passed the National Board examination within a period of five years prior to such application was first applied in 1984 and was uniformly applied to all applicants for reexamination who had not taken the National Board examination within the requisite period prior to application. (Testimony of Gardner)
Findings Of Fact Petitioner Professional Firefighters of Florida, Inc. represents various public employee organizations which act as bargaining agents for firefighters employed by governmental entities in the State of Florida. In 1977, there were approximately seventy local unions with about 6,000 members, some of whom performed emergency medical services and advanced life support incident to their employment as emergency medical technicians. Petitioner Dominick Barbera is a lieutenant employed by the Dade County Fire Department and assigned to the Emergency Medical Services Division. He performs advanced life support functions in the course of his employment, but has not applied for certification as a paramedic. He testified that the challenged rules affected him in that if he did not obtain state certification, he would be relieved of his current duties which would prevent him from utilizing his training in the paramedic field and also affect him monetarily. Petitioner Gary Rainey is employed as a lieutenant with the Dade County Fire Department and performs advance life support functions on a rescue vehicle. He has not applied for state certification as a paramedic. No evidence was presented at the hearing concerning Petitioner James B. Jackson. (Testimony of Naples, Hoffman, Barbera, Rainey) Prior to the passage of Chapter 77-347, 9, Laws of Florida, (Section 401.47, Florida Statutes) there was no statutory authority for the state certification of paramedics. However, a large number of state certified emergency medical technicians were performing advanced life support functions in connection with their employment with fire departments and hospitals. These individuals had obtained training in paramedic subjects such as defibrillation, administration of intravenous solutions, intubation, and the like. The 1977 Statute was enacted to provide for state certification of paramedics who met qualifications to be established by rules promulgated by Respondent. Section 8 of Chapter 77-347 required certification of providers of advanced life support services and required such providers utilizing paramedics to employ or contract with a licensed physician "medical director" to supervise and accept responsibility for the medical performance of EMT's and paramedics. (Testimony of Westmark) In 1946, Respondent began administering voluntary examinations to those emergency medical technicians who had received training as paramedics at various places around the state. These individuals were called Emergency Medical Technicians II. Individuals who successfully passed the examination were provided a certificate that they had "demonstrated ability as an Emergency Medical Technician II by successfully completing the Florida Emergency Medical Technician II Certification Examination." In March 1977, one of Respondent's officials told a State Legislative Committee that the examinations were only "pilot" examinations to gather information to be used if legislative authority was obtained to certify individuals in the paramedic field. As a result of this information, Professional Firefighters of Florida, Inc. advised its membership that the examinations were not legally authorized, and some members did not take the examination but others did. The rules promulgated by Respondent in Chapter 10D-66, Florida Administrative Code, to implement the 1977 paramedic statute provided that those who had taken the prior examination could be certified as paramedics if otherwise qualified without any further examination. Over 1,000 of those technicians who had taken the earlier examination have since been certified as paramedics by Respondent. The subject matter, degree of difficulty, and grading system of the new certification examinations are essentially the same as the prior examination. (Testimony of Hoffman, Westmark, Rainey, Petitioners1 Exhibit 2-3, 5) The new law concerning paramedics provided that Respondent, prior to Chapter 120 public hearings on its proposed rules, consult with employees performing advanced life support services and certified by a licensed physician or local medical society, and who represented no less than nine public employers. Although petitioners testified that the firefighters belonging to their organization were not consulted in this regard even after affirmatively offering to do so by letter to the secretary of Respondent department, Respondent, in fact, conducted workshops and other meetings at various places in the state where employees representing more than nine public employers were consulted on draft proposed rules of the department. (Testimony of Naples, Hoffman, Westmark, Petitioners' Exhibit 4, Respondent's Exhibits 1-2, 4) Respondent's intent in requiring recertification of paramedics annually as set forth in Rule 10D-66.39 is to treat such a procedure as a license renewal upon payment of an annual fee. Its requirement in Rule 10D-66.41(1) concerning staffing of patient compartments of transporting vehicles by at least two qualified personnel in emergency situations is designed to provide flexibility in staffing, dependent upon the advice of a supervising physician. The requirement in Rule 10D-66.39(1)(e) concerning required age of 18 for certification as a paramedic, but still requiring one year experience as an emergency technician who also must be 18 for certification, is designed to qualify a possible candidate from another state which permits certification as an EMT at an earlier age. (Testimony of Westmark) Petitioner Barbera performs duties in advanced life support under the supervision of a hospital emergency room physician. The medical director for the Dade County Fire Department is also the director for the City of Hialeah and Santa Rosa County. He establishes the procedures to be followed by emergency medical personnel and has given group training sessions to them in the past. However, he has never given personal instructions to Petitioner Barbera with respect to actual rescue actions. Both Petitioner Barbera and Petitioner Rainey are "certified" by the Dade County Fire Department to act as a paramedic based on training in advanced life support. Rainey also works under the instructions of a physician but has never been given specific instructions on a particular case by the director. Both Petitioners testified that advanced life support cannot be administered to a patient by only one qualified individual. About sixty percent of the rescue calls received by the fire department require advanced life support procedures to be undertaken. (Testimony of Barbera, Rainey)
Findings Of Fact On July 18, 1983, Petitioner, under its former corporate name, Deltona General Hospital, Inc., filed, pursuant to Rule 10-5.08, Florida Administrative Code, a letter advising DHRS of its intention to file an application for a certificate of need to construct and operate a 100-bed acute-care hospital in Volusia County. The letter identifies the nature and scope of the project, the project location and the date upon which the application is to be filed. On July 18, 1983, Petitioner advised the Health Planning Council of Northeast Florida of its intention to file an application for a certificate of need to construct and operate a 100-bed acute-care hospital in Volusia County. Oral notice was provided by Western Union Mailgram on July 18, 1983. Written confirmation of the mailgram was received by the Health Planning Council of Northeast Florida on July 20, 1983. On July 18, 1983, Halifax Hospital Medical Center filed a competing letter of intent to establish a 100-bed acute-care general hospital in Volusia County. On August 15, 1983, both Petitioner and Halifax Hospital Medical Center filed applications for a certificate of need to construct a 100-bed acute-care hospital in Volusia County. On or about September 9, 1983, Petitioner was advised in a letter from Thomas F. Porter, Supervisor, Medical Facility Consultants, DHRS, that its August 15 application would not be reviewed in the August 15 acute-care batching cycle. DHRS rejected the application due to Petitioner's failure to file a written letter of intent with the local health council on or before July 18, 1983, predicting its decision on Rule 10-5.08(1)(b), Florida Administrative Code. The application of Halifax Hospital Medical Center will be reviewed by DHRS in the August 15, 1983, batching cycle. Committee Substitute for House Bill 700, effective July 1, 1983, and codified into law at Chapter 83-244, Laws of Florida, amended Section 381.494(5), Florida Statutes, to require DHRS to "provide a mechanism by which providers may enter a batching cycle to compete with all letters of intent filed." DHRS has not, as of this date, developed a mechanism in compliance with this statutory amendment. In 1982, Rule 10-5.08, Florida Administrative Code, provided, in pertinent part: In order that applications per- taining to similar types of services, facilities, or equipment affecting the same health service area may be considered in relation to each other for purposes of competitive review, letters of intent and applications shall be submitted to the appropriate HSA in the Department pursuant to dates prescribed and application schedules (attachments 1-9) developed under the following conditions: * * * (e) In cases where a letter of intent was filed within five working days of the letter of intent deadline, a grace period of ten days from the deadline date for receipt of letters of intent shall be established to pro- vide an opportunity for a competing applicant to file a letter of intent. As amended on March 31, 1982, Rule 10-5.08(1)(b) provides, in pertinent part: At least 30 days prior to the filing of an application, a letter of intent respecting the development of a pro- posal must be actually received by the local health council and by the Department . . . because letters of intent give applicants a right of entry into the Certificate of Need process, failure to file a timely letter of intent and to have it actually received by the Department and by the local health council at least 30 days prior to the filing of an application will prevent the Department from accepting an applica- tion. Failure to timely file a letter of intent or to timely file an appli- cation will cause a delay in a Certifi- cate of Need project until the next available review cycle. Section 381.494(5), Florida Statutes, is cited in the Florida Administrative Code as the specific authority for Rule 10-5.08. In addition, Section 381.494(5), Florida Statutes, is cited as the law implemented by Rule 10-5.08. During the 1983 Legislative Session, a number of groups and individuals recommended that Section 381.494(5), Florida Statutes, be amended to include a grace period provision. Both DHRS and the Florida Hospital Association supported the requested legislative amendment. The 1983 Legislature in fact amended Section 381.494(5), Florida Statutes, to require the Department to provide a "mechanism" by which providers may enter a batching cycle to compete with all letters of intent filed. Chapter 83-244, Laws of Florida. The amended statute became effective July 1, 1983. DHRS has yet to initiate formal rule-making proceedings under Chapter 120, Florida Statutes, to amend the challenged rule. The amount of time required to develop and adopt an amended version of Rule 10-5.08, Florida Administrative Code, is uncertain. Section 381.494(5), as amended, does not specifically require that DHRS promulgate or amend the challenged rule. The statute directs DHRS to provide a "mechanism" by which providers may enter a batching cycle to compete with all letters of intent filed. The filing of a letter of intent with the local health councils serves an informational purpose. The letter of intent process gives notice to the community at large as to what particular applications may be submitted during the various batching cycles. The filing of a letter of intent does not trigger any review process at the local level. The local health council does not participate in project review during the certificate of need process. The purpose of the letter of intent is simply to put other institutions or interested individuals in the area on notice of the potential for filing of an application at a later date. The Halifax Hospital Medical Center certificate of need application is being reviewed in the August 15 batching cycle without reference to any other applications. If Petitioner's application is accepted, it will be reviewed competitively with the Halifax application.
Findings Of Fact Upon consideration of the oral and documented evidence adduced at the hearing, the following relevant facts are found: In General Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0016786. On February 27, 1984, Florida Medical license of the Respondent was suspended for a period of one year in Department of Professional Regulation vs. Teotimo D. Bonzon, M.D., Case Number 82-799. At all times material to this proceeding, Respondent was the primary care physician for Mary T. Upton, a patient with a history of bronchial asthma. Valium On January 11, 1985 the patient, Mary T. Upton, developed onset of acute respiratory distress and was seen by the Respondent, first in his office and then as an outpatient. On the second occasion, Respondent gave the patient valium, a Schedule IV Controlled Substance. On January 12, 1985, Upton was admitted to Methodist Hospital of Jacksonville, Florida, with a complaint of Acute Asthmatic Bronchitis. Bronchial Asthma is a condition that affects the respiratory drive. Valium relaxes the muscles and sedates the central nervous system and respiratory drive of a person and, as such, is not a drug to be administered in an outpatient setting under the circumstances that Respondent administered valium to Upton. Theo-Dur After admission and initial treatment, the patient continued to experience respiratory distress, and the Respondent was notified. Respondent ordered the drug Theo-Dur to be given orally. This was after Upton was given Theophylline, but before she was stabilized on Theophylline. Theo-Dur is a long sustained action form of Theophylline, which takes twelve hours to have an appreciable affect and, as such, is used primarily for maintenance and should not be used in acute situations such as Upton's until the patient is stabilized. Theophylline At the time Upton was admitted to the hospital on January 12, 1985 and Respondent started her on Aminophylline (also called Theophylline I.V.), Respondent was aware of Upton's previous use of medication containing Theophylline for her asthma condition and that she had a prescription to obtain such medication. Although Respondent was aware of Upton's previous use of medication containing Theophylline, Respondent did not inquire of Upton, or in any other manner determine, if she had ingested any form of Theophylline before administering the Aminophylline I.V. upon admission to the hospital on January 12, 1985. Upton had taken Theophylline before the Theophylline I.V. was administered. It is the recognized standard of care for a physician to obtain the level of Theophylline in the patient's body before administering Theophylline and, to periodically check the level of Theophylline to assure the best therapeutic level is achieved. Upton was on the hospital floor at approximately 11:20 a.m. on January 12, 1985 and the first time a physician ordered the Theophylline level checked was between 4:00 p.m. and 5:00 p.m. on January 12, 1985 after Respondent consulted with Dr. Libao. Before the Theophylline level was checked, Respondent had already administered Theo-Dur. Toxicity of Theophylline occurs when the content of the blood exceeds 20 milligrams per 100cc and any level over the 20 milligrams per 100cc may cause the patient to have gastrointestinal side affects such as nausea, vomiting and nervousness which may be life threatening. Respondent's failure to monitor the Theophylline level resulted in the patient receiving a toxic level of 24 milligrams per 100cc of Theophylline; however, there was no evidence that Upton suffered any side affects. D. Thoracostomy On January 17, 1985, routine chest x-rays confirmed a pneumothorax in Upton's left lung which was reported to the Respondent by the radiologist, Dr. Victor Saenz, by telephone between 10:00 a.m. and 11:00 a.m. on January 17, 1985. Without reviewing the x-rays, Respondent proceeded to treat the left pneumothorax with a chest tub (or Thoracostomy) in Upton's right lung. There was sufficient time to review the x-rays since the Thoracostomy was not performed until between 2:00 p.m. and 3:00 p.m. on January 17, 1985. Respondent did not order follow-up x-rays the day of the surgery to determine the effectiveness of the surgery. It is accepted medical practice for the physician, particularly a surgeon who performs an invasive procedure such as a thoracostomy, to order x- rays immediately following the surgery to make sure the procedure is working By placing the chest tub in the wrong side of the lung, Respondent created a situation wherein another pneumothorax might occur; however, by removing the chest tub from the right lung and placing it in the left lung alleviated this possibility. Respondent failed to realize that the chest tub had been placed in the wrong side of the lung (the right side) until the morning of January 18, 1985 when he was advised by the nurse that Upton had a pneumothorax on the left side rather than the right side where the chest tub had been placed by Respondent. Respondent's error was discovered as a result of routine x-rays performed by Dr. Walkett at 7:45 a.m. on January 18, 1985, the day following surgery. These follow-up x-rays also revealed Subcutaneous Emphysema throughout Upton's chest. Placing the chest tub in the right lung will not re-expand the left lung. Upon being informed of his error, Respondent proceeded to the hospital and removed the chest tub from Upton's right lung and placed it in her left lung. As a result of Respondent's error, Upton's heart beat increased around 3:00 a.m. on January 18, 1985 causing cardiac distress. Allergies At the time of the patient's admission it was noted that she was allergic to iodine. However, Respondent having treated Upton for some time prior to this admission, had knowledge that she was not allergic to iodine. Prior to the Thoracostomy and Tracheostomy, Respondent used Betadine scrub on Upton. Betadine contains iodine. Other solutions are readily available at Methodist Hospital that are not iodine-based. Tracheostomy On January 17, 1985 at or about the same time he performed the Thoracostomy, the Respondent performed a surgical procedure known as a Tracheostomy on Upton. Following the Tracheostomy, performed by the Respondent, the patient's condition did not improve and she continued to experience complications, including Subcutaneous Emphysema. Subcutaneous Emphysema occurs when air pockets form under the patient's fat tissue layer which cause swelling and can compromise the patient. On January 18, 1985, the Respondent's temporary admitting and consultation privileges at Methodist Hospital were suspended in a letter from Dr. Wallace Walkett, the president of the Medical and Dental Staff. The treatment of Upton was turned over to other physicians. Dr. Frederick Vontz, a Board Certified Cardiovascular and Thoracic Surgeon was called in by Dr. Walklett to repair the problems with Upton's trachea. When Dr. Vontz first saw Upton she was in moderate to severe distress and her body was swollen from the Subcutaneous Emphysema. On January 26, 1985, Dr. Vontz performed a Bronchoscopy on Upton that showed granulation tissue, which is scar tissue that may be an obstacle to breathing. The cause of this granulation tissue was the tracheostomy procedure performed by Respondent. Due to Upton's difficulty in breathing and the continuing Subcutaneous Emphysema, she was taken to the operating room on January 31, 1985. In the operating room, Dr. Vontz discovered a tear in the trachea that extended to six and one-half centimeters above the carina. Dr. Vontz also discovered that the air causing the Subcutaneous Emphysema was escaping from a false channel in the trachea. The damage to the posterior wall of the patient's trachea was caused by the improper tracheostomy procedure performed by Respondent on January 17, 1985. Upton died at 12:00 noon on March 6, 1985 and, although there is evidence that the tear in Upton's trachea may have contributed to Upton's death, there is insufficient evidence to show that it was clearly the sole cause of Upton's death. The record is clear that the level of care, skill and treatment provided Upton by the Respondent, fell below that which would be recognized as being acceptable under similar conditions and circumstances by a prudent similar physician.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses, and Rule 21M- 20.001(2), Florida Administrative Code, it is, therefore RECOMMENDED that the Board enter a Final Order suspending the Respondent, Teotimo D. Bonzon's license to practice medicine in the state of Florida for a period of two (2) years with condition for reinstatement determined by the Board as it deems appropriate. RESPECTFULLY SUBMITTED and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-3022 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner In General 1.-4. Adopted in Findings of Fact 1-4. Valium 1.-4. Adopted in Findings of Fact 5, 8, 7 and 6, respectively. Theo-Dur 1.-2. Adopted in Findings of Fact 9 and 10. Theophylline 1.-2. Adopted in Findings of Fact 11 and 13, respectively. 3.-4. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Findings of Fact 12 and 16. 7.-8. Adopted in Findings of Fact 12 and 17, respectively. Thoracostomy 1.-4. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 20. 7.-8. Adopted in Finding of Fact 19. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. Adopted in Finding of Fact 22. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 26. 15.-l6. Adopted in Finding of Fact 27. 17. Adopted in Finding of Fact 25. Allergies 1.-2. Adopted in Findings of Fact 28 and 29. 3. Rejected as not being material or relevant. Tracheostomy 1.-9. Adopted in Findings of Fact 31-39 Unnecessary in reaching a conclusion in this case. Adopted in Finding of Fact 40. 12.-13. Subordinate to facts actually found in the Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent A. General 1.-3. Adopted in Findings of Fact 2, 1 and 4, respectively. B. The Use of Betadine 1. Adopted in Finding of Fact 28, but clarified. Theophylline Adopted in Finding of Fact 9, but clarified. Adopted in Finding of Fact 13 that Respondent had ordered Theophylline intravenously before checking the Theophylline level in the patient. Theo-Dur Rejected as not supported by substantial competent evidence in the record. Valium Rejected as not supported by substantial competent evidence in the record. Thoracostomy Adopted in part in Findings of Fact 18-27, otherwise rejected. Tracheostomy Adopted in Finding of Fact 31, but modified. Adopted in Finding of Fact 34. Adopted in Findings of Fact 24, 32 and 33, but modified. Adopted in Finding of Fact 36. The first sentence and the first phrase of the second sentence are adopted in Findings of Fact 38 and 39. The balance is rejected as being a restatement of testimony rather than a finding of fact. However, even if the last sentence was stated as a finding of fact, it would be rejected as not being supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. COPIES FURNISHED: MARK A. SIERON, ESQUIRE POST OFFICE BOX 855 ORANGE PARK, FLORIDA 32067 JOHN R. WEED, ESQUIRE 605 SOUTH JEFFERSON STREET PERRY, FLORIDA 32347 STEPHANIE A. DANIEL, ESQUIRE CHIEF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 =================================================================
Findings Of Fact At all times material hereto, Dr. Esteban Valdes-Castillo, a Board- certified psychiatrist, was the Medical Director of Progressive Health Center, Inc. Blanche Lear, a psychiatric social worker, was an employee of the Center. Between 1978 and August, 1981, Petitioner paid Respondent $45,627.16 in Medicaid payments for counseling ser- vices rendered by Blanche Lear. A two-way mirror was located in the common wall between Lear's and Valdes-Castillo's offices. Of the Medicaid recipients counseled by Lear, Valdes-Castillo did not meet, interview, counsel or even observe all of the patients for whom payments were made to the Center by Petitioner. Further, Valdes-Castillo only observed Lear's coun- seling sessions approximately once a month over the time period involved and then only upon the specific request of Lear to observe a specific patient for a specific reason.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Petitioner directing Respondent Progressive Health Center, Inc., to reimburse to Petitioner the amount of $45,627.16. DONE and RECOMMENDED this 14th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 J. Michael Sara, Esquire 2153 Coral Way, Suite 400 Miami, Florida 33145 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes (2012).
Findings Of Fact Ashley Lamendola first presented to Gulf Coast OB/GYN on the morning of December 16, 2011, for a prenatal visit. This visit constituted the beginning of her professional relationship with the physicians who were part of the Gulf Coast OB/GYN group, which included Dr. Calderon and Dr. Shamas.1/ Violet Lamendola, Ms. Lamendola’s mother, accompanied Ms. Lamendola to that visit. When she arrived at Gulf Coast OB/GYN, Ms. Lamendola was given information and forms to fill out by the receptionist. According to both Ms. Lamendola and her mother, the materials included a NICA brochure in Spanish and an acknowledgment of receipt of the NICA form. While reviewing the materials, Ms. Lamendola, who does not speak Spanish, noted that the NICA brochure given to her was in Spanish. She asked her mother to take the brochure back to the receptionist. When Ms. Lamendola’s mother asked the receptionist about the Spanish brochure, the receptionist told her that the office had run out of NICA brochures printed in English, but that she would obtain one from another office and give it to Ms. Lamendola at the end of her appointment. Ms. Lamendola was instructed to sign and did sign the acknowledgment form so that she could see the physician. The acknowledgment form advised that all physicians in the Gulf Coast OB/GYN, P.A., were participating physicians in the NICA program. Ms. Lamendola received a black-and-white facsimile copy of the NICA brochure on her way out of the office along with other materials relating to prenatal and infant care. The brochure, received by Ms. Lamendola from Gulf Coast OB/GYN, bears a facsimile transmission header dated December 16, 2011, at 9:47 a.m. The brochure prepared by NICA is a color brochure which contains the following text in white letters on a light-to-medium green background on the back of the brochure: Section 766.301-766.316, Florida Statutes, (“NICA Law”) provides rights and remedies for certain birth-related neurological injuries and is an exclusive remedy. This brochure is prepared in accordance with the mandate of Section 766.316, Florida Statutes. A copy of the complete statute is available free of charge to completely inform patients of their rights and limitations under the application provision of Florida law. Since 1989, numerous court cases have interpreted the NICA law, clarifying legislative intent. The above-quoted language is absent from the facsimile copy of the brochure that Ms. Lamendola received from Gulf Coast OB/GYN. Apparently because the letters in the original brochure were white, the letters did not transmit. It is noted that on the front of the brochure, white lettering that appears on the green background of the color brochure did not transmit on the copy that Ms. Lamendola received. The majority of the information contained in Ms. Lamendola’s facsimile copy of the brochure is contained in the color copy of the brochure. The facsimile copy informed Ms. Lamendola that the statutes provide an exclusive remedy and a copy of the statutes may be obtained from NICA. The facsimile outlined the rights and limitations provided in the statutes. The only things that are not contained in the original brochure are that a copy of the statutes is available free of charge, the preparation of the brochure was mandated by section 766.316, and court cases have interpreted the statutes. St. Petersburg General Hospital offers a tour of its obstetrical department to expectant mothers and their families. Ms. Lamendola’s mother called St. Petersburg General Hospital to register for a tour. The hospital employee who was scheduling the tour asked to speak to Ms. Lamendola to obtain pertinent biographical information. Ms. Lamendola provided the information to the hospital employee. The tour is an informational tour and attendance at the tour does not constitute pre-registration at St. Petersburg General Hospital for the delivery of a baby. Ms. Lamendola and her mother, along with 12 other couples, attended the tour on March 22, 2012. During the tour, Ms. Lamendola received a tour packet, which contained a document titled Preadmission and Financial Information. This document instructed Ms. Lamendola to fill out the pre-admission form and return it to the hospital. Ms. Lamendola filled out the pre- admission form, but did not return it to St. Petersburg General Hospital. Ms. Lamendola did not pre-register for admission to the hospital. On April 3, 2012, Ms. Lamendola presented to St. Petersburg General Hospital with complaints of vaginal bleeding. Ms. Lamendola was told by a hospital employee that she was already in the system and that additional information would not be necessary. Ms. Lamendola signed a “Consent to Treat” form and was treated in the labor and delivery unit of the hospital. A short time later, she was given informational materials relating to prenatal and infant care and released. She was not given a NICA brochure during the visit on April 3, 2012. It was the hospital’s policy to give a NICA brochure to a patient only when the patient was being admitted as an inpatient for delivery of her baby. Ms. Lamendola’s professional relationship with St. Petersburg General Hospital relating to her pregnancy began with her visit on April 3, 2012. At 20:19 on June 26, 2012, Ms. Lamendola presented to St. Petersburg General Hospital. She had been experiencing contractions for six hours prior to her arrival at the hospital. She had been placed on bed rest for gestational hypertension five days prior to coming to the hospital. When she arrived at the hospital, she had hypertension. Normally when a patient is 37 to 39 weeks gestation, her physician will bring the prenatal records to the hospital or the physician’s office will send the records to the hospital by facsimile transmission. When Ms. Lamendola arrived at St. Petersburg General Hospital, her prenatal records from her physicians’ office were not on file. Megan Muse, R.N., was on duty when Ms. Lamendola presented at St. Petersburg General Hospital. Because Ms. Lamendola’s records were not on file, Ms. Muse requested that Bayfront Hospital send Ms. Lamendola’s records to St. Petersburg General Hospital. The evidence did not establish how Ms. Muse knew that the prenatal records were at Bayfront Hospital. Ms. Lamendola’s prenatal records, consisting of 11 pages, were sent by facsimile transmission to St. Petersburg General Hospital beginning at 21:35 on June 26, 2012. Ms. Muse recorded in her notes that Ms. Lamendola’s prenatal records were received from Bayfront Hospital at 21:45 on June 26, 2012. Although Ms. Lamendola’s prenatal records may have been sent to Bayfront Hospital, it was never Ms. Lamendola’s intention to deliver her baby at Bayfront Hospital. She took the informational tour offered by St. Petersburg General Hospital and went to St. Petersburg General Hospital in April 2012 when she had a problem related to her pregnancy. At 20:33, Dr. Javate admitted Ms. Lamendola to St. Petersburg General Hospital for the delivery of her infant. Ms. Lamendola was examined by Emanuel Javate, M.D., at approximately 21:35. At 22:02, Ms. Lamendola signed the hospital’s Condition of Admission form. At 22:10 the hospital gave Ms. Lamendola the brochure prepared by NICA, and Ms. Lamendola signed the acknowledgment form, acknowledging that she had received the brochure. Ms. Lamendola gave birth to Hunter Lamendola (Hunter) on June 27, 2012, at St. Petersburg General Hospital, which is a licensed Florida Hospital. At birth, Hunter weighed in excess of 2,500 grams and was a single gestation. Ashley Lamendola received obstetrical care from Guillermo Calderon, M.D. Dr. Calderon was a “participating physician” as defined in section 766.302(7). Christina Shamas, M.D., provided obstetrical services in the course of labor, delivery, and resuscitation in the immediate post-delivery period. Dr. Shamas was a “participating physician” as defined in section 766.302(7).
