Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the facts stipulated to by the parties, the following relevant facts are found: Petitioner Frank Robert Gentile was born in New York on August 14, 1942, and is a citizen of this country. He attended St. John's Preparatory School in New York from 1956 through 1960, and received his undergraduate degree from Seton Hall University in New Jersey in 1964. His medical degree was received from the University of Bolgona, Bolgona, Italy, in 1972. In 1973, petitioner's credentials were evaluated by the Educational Commission for Foreign Medical Graduates and he received a passing grade on the examination administered by that organization. Between July, 1972 and June, 1973, petitioner trained as a clinical clerk at Maimonides Medical Center and Wyckoff Heights Hospital in Brooklyn, New York. From July, 1973 through January, 1974, petitioner completed his medical externship at the Veteran's Administration Hospital in Brooklyn, New York. From January, 1974 through January, 1975, petitioner completed an approved internship at Jersey Shore Medical Center in Neptune, New Jersey. From July, 1975 through June, 1978, petitioner completed his residency at Methodist Hospital in Brooklyn, New York. Petitioner received a passing grade in the examination administered by the Federation of State Medical Boards of the United States, Inc. (FLEX) in September of 1977. From July, 1978 through June, 1979, petitioner trained as a Hematology Fellow I at Cabrini Medical Center, New York, New York. From July, 1979 through June, 1980, petitioner trained as a Hematology Fellow II at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. From July, 1980 through June, 1981, petitioner trained as a Medical Oncology Fellow at Downstate Medical Center-Kings County Hospital Center in Brooklyn, New York. Petitioner has been continuously and actively engaged in the practice of medicine, specializing in the fields of hematology and oncology, from June, 1981 to the present. Petitioner currently holds licenses to practice medicine in the states of New York and North Carolina. These licenses are in good standing, have never been revoked or suspended and petitioner is not under investigation in either state. From July, 1981 through January, 1982, petitioner was employed by Memorial Hospital of Alamance County, Burlington, North Carolina, as a hematologist and oncologist. He considered this employment to be temporary and so informed the Chief of Staff. While at Memorial Hospital, petitioner treated patients, did consultations and trained the oncology nurse. During the first part of his work there, his patients and charts were reviewed by a panel of doctors. He never received any complaints from his patients or from his fellow physicians concerning his medical skills. The Medical Staff Bylaws required a six-month review. In January, 1982, petitioner was informed by the Chief of Medicine that the review board had met, that petitioner's charts were not complete enough and that the board felt that petitioner should immediately resign from the Hospital. When petitioner inquired as to the problems the board found with respect to his charts, he was not given a specific answer. Petitioner received no prior warning and he considered his charts acceptable. Rather than contesting the charges against him, petitioner resigned from Memorial Hospital inasmuch as he had no intention of remaining there on a permanent basis. On March 17, 1982, petitioner applied to the Florida Board of Medical Examiners for licensure by endorsement pursuant to Section 458.313, Florida Statutes (1981). His application was complete in all respects and was accompanied by the required application fee. During the application process, petitioner was requested to furnish additional information as to what he was doing from June, 1981 to the present. He responded that he had finished his training near the end of June and then had been trying to find a place to start a private practice. He further explained that he took over a doctor's practice while that doctor was on vacation and that he had worked in the emergency rooms in the North Carolina area. No mention was made by respondent of his employment with the Memorial Hospital of Alamance County. Upon a standard inquiry to the North Carolina State Board of Medical Examiners, the respondent board learned of petitioner's affiliation with the Memorial Hospital of Alamance County. That Hospital was requested to complete a form regarding petitioner. The form was completed by "Susan Denault, Assistant Administrator," and was returned to the respondent and placed in petitioner's application file. To the question "Does he perform competently?" the answer "Questionable" appears on the form. To the question "Have any restrictions ever been placed on him beyond the original period of probation?" the following answer appears: On January 18, 1982, the Department of Medicine reviewed the work of Dr. Frank R. Gentile acting in accordance with the Medical Staff Bylaws, Rules and Regula- tions which require a six-months review. At that meeting the Department of Medicine decided the work of Dr. Frank R. Gentile had not been up to the standards expected by the department, and was not in accordance with that standard that should be appropriate for practice in the Memorial Hospital of Alamance County. Before further action could be taken, Dr. Frank R. Gentile voluntarily resigned his membership and clinical privileges to the Medical Staff of Memorial Hospital of Alamance County, Inc. Dorothy Faircloth, the Executive Director of the Florida Board of Medical Examiners, in response to petitioner's inquiry as to the status of his application, informed petitioner that the Board had received the form from the Memorial Hospital of Alamance County and related the contents to him. She advised petitioner that the normal procedure of her office was to request further information from an institution providing such information and also to request the applicant to provide a written response to such a report. However, petitioner indicated that he wished to personally address the Board on this matter at its upcoming Board meeting. Petitioner did appear at the Board meeting but felt that the Memorial Hospital matter was not fully addressed by the Board and that he was not given the opportunity to speak to the Board on that matter. By Order dated June 24, 1982, the Board of Medical Examiners denied petitioner's application for licensure by endorsement, finding that The Petitioner has not demonstrated to the Board that he is capable of safely engaging in the practice of medicine with reasonable skill and safety to his patients based upon his voluntary resignation of his membership and clinical privileges at Memorial Hospital of Alamance County, Inc., Burlington, North Carolina, just prior to disciplinary action taken by the hospital. Based on this finding, the Board concluded that petitioner had not demonstrated that he meets the statutory requirements of Sections 458.313 and 458.331(3), Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED. Respectfully submitted and entered this 17th day of January, 1983, in Tallahassee, Florida. DIANE D. TREMOR, 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 17th day of January, 1983. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire de la Parte & Gilbert 705 East Kennedy Boulevard Tampa, Florida 33602 Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs Suite 1602, Capitol Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS FRANK ROBERT GENTILE, M.D. Petitioner, vs. DOAH CASE NO. 82-1994 DEPARTMENT OF PROFESSIONAL REGULATION and BOARD OF MEDICAL EXAMINERS, Respondent. /
The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent, Isaac Nosovsky, M.D., committed a violation of Chapter 458, Florida Statutes (2005), as alleged in the Administrative Complaint filed by Petitioner, the Department of Health, on July 18, 2006, in DOH Case Number 2006-07801, as amended; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Isaac Nosovsky, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 29814. Dr. Nosovsky’s address of record is 1865 North Corporate Lakes Blvd., Suite 2, Weston, Florida 33326. The Indictment and Conviction. On or about March 23, 2006, Respondent was indicted in the United States District Court, Southern District of Florida, Case No. 06-20178 CR, United States of America v. Isaac Nosovsky and Faustina Adela Gonzalez, on seven counts (hereinafter referred to as the "Indictment"): In Count 1, Dr. Nosovsky is charged with Conspiracy to Defraud the United States and to Commit Health Care Fraud. In particular, it is alleged that Dr. Nosovsky committed conspiracy against the United States Department of Health and Human Services in its administration and oversight of Medicare and against Medicare in connection with the delivery of any payment for health care benefits, items, and services, in violation of Title 18, U.S.C. Section 371. In Counts 2 through 7, Dr. Nosovsky is charged with Health Care Fraud. In particular, it is alleged that he committed Health Care Fraud against a health care benefit program affecting commerce, that is, Medicare, in violation of Title 18 U.S.C. Sections 1347 and 2, in connection with the delivery and payment for health care benefits, cost of therapies, treatments, and related items and services allegedly performed by the Nosovsky Clinic. Generally, the Indictment was predicated upon the allegation that, in or around August 2004, Dr. Nosovsky and his co-conspirator formed a clinic, the Nosovsky Clinic, which it then used to unlawfully enrichment themselves by "(a) submitting and causing the submission of false and fraudulent claims to Medicare; (b) paying kickbacks and bribes to Medicare beneficiaries so that they would serve as patients at the Nosovsky clinic, thereby furthering the billing fraud scheme; and concealing the submission of false and fraudulent claims to Medicare, the receipt and transfer of fraud proceeds, and the payment of kickbacks and bribes." The Indictment alleges the following facts regarding the Nosovsky Clinic: The medical clinic of ISAAC NOSOVSKY (hereinafter the "Nosovsky clinic") was located at 2250 Southwest 3rd Avenue, Suite 150, in Miami, Florida, and was in business from in or around November 2004 through in or around April 2005, when it closed. The Nosovsky clinic claimed to specialize in the treatment of patients diagnosed with Human Immunodeficiency Virus ("HIV"). HIV is a viral infection that attacks the patient’s immune system. The Nosovsky clinic purposed to provide intravenous infusion treatments, i.e., the insertion of a needle into a patient's vein, in order to administer certain specialized medications. The Nosovsky clinic also purposed to provide injections, i.e., the insertion of a syringe into the patient's arm, in order to administer certain specialized medications. ISAAC NOSOVSKY was a medical doctor licensed to practice medicine in the State of Florida pursuant to license number ME29814. NOSOVSKY was employed by the Nosovsky clinic and purported to treat patients there from in or around November 2004 through in or around April 2005. FAUSTINA ADELA GONZALEZ was employed as a medical assistant licensed to in the State of Florida pursuant to license number CNA121032. GONZALEZ WAS EMPLOYED BY THE Nosovsky clinic as a medical assistant and purported to treat patients there from in or around November 2004 through in or around April 2005. The Indictment alleges the following facts concerning the Medicare Program: The Medicare Program (Medicare") was a federal program that provided free or below- cost health care benefits to certain individuals, primarily the elderly, blind and disabled. The benefits available under Medicare are prescribed by statute and by federal regulations under auspices of the United States Department of Health and Human Services, through its agency, the Centers for Medicare and Medicaid Services ("CMS"). Individuals who receive benefits are referred to as beneficiaries. Medicare was a "health care benefit program," as defined by Title 18, United States Code, Section 24(b). Medicare Part B paid for a portion of the cost of certain necessary medical services and medications that were provided and ordered by physicians, clinics, and other qualified health care providers. Medicare Part B was administered in Florida by First Coast Service Options ("FCSO"), a company that contracted with CMS to receive, adjudicate, process, and pay certain Part B claims. Physicians, clinics, and other healthcare providers that provided services to Medicare beneficiaries were able to apply for and obtain a “provider number.” A health care provider who had been issued a provider number was able to file claims with Medicare to obtain reimbursement for services provided to beneficiaries. A Medicare claim was required to set forth, among other things, the beneficiary's name and Medicare identification number, the services that had been performed for the beneficiary, the date the services were provided, the cost of the services, and the name and identification number of the physician or other health care provider who had ordered the services. For Medicare billing purposes, medical services and medications provided to beneficiaries were identified by a Current Procedural Terminology ("CPT") code. For services purportedly rendered from in or around November 2004 through in or around May 2005, the Nosovsky clinic billed Medicare under a provider number assigned to ISAAC NOSOVSKY, 96542O. The indictment alleges that, having formed the Nosovsky Clinic and obtaining a Medicare provider number, Dr. Nosovsky used the Medicare system in his clinic to defraud the United States and commit Health Care Fraud in the following manner: Co-conspirators established the Nosovksy [sic] clinic, with ISAAC NOSOVSKY agreeing to serve as its medical director. ISAAC NOSOVSKY pre-signed numerous, blank health care-related documents including, but not limited to, "Infusion Therapy" sheets, progress notes, and Medicare superbills. FAUSTINA ADELA GONZALEZ failed to provide Medicare beneficiaries with prescribed medications. In some cases, GONZALEZ bandaged patients' arms to give the appearance that a treatment or therapy had been administered. FAUSTINA ADELA GONZALEZ falsely stated on the pre-signed "Infusion Therapy" sheets that she had provided Medicare beneficiaries with infusion therapy or treatments with specific dosages of medications. FAUSTINA ADELA GONZALEZ, among other co-conspirators, fabricated therapy notes and related documents stating that Medicare beneficiaries had received specific treatments, therapies, and dosages of medications, when, in fact, the beneficiaries had actually not received the treatments, therapies, and medications indicated on the therapy notes and documents. To conceal the fact that the Medicare beneficiaries were not receiving the treatments, therapy, and medications that were described in various documents and that were being utilized to bill Medicare, various co-conspirators and FAUSTINA ADELA GONZALEZ obtained fraudulent and/or falsified documents, including the pre- signed documents from ISAAC NOSOVSKY, and placed them in the patient files of the beneficiaries. To promote and further the billing fraud scheme, co-conspirators paid kickbacks and bribes to Medicare beneficiaries so that they would serve as patients. Co-conspirators submitted and caused the submission of numerous false and fraudulent claims to Medicare on behalf of the Nosovsky clinic, seeking reimbursement for the cost of infusions, injections, medications, and other items and services that were not provided, not provided as claimed, or not medically necessary. As a result of the submission of these claims, Medicare paid in excess of $1,300,000 into a bank account in the name of ISAAC NOSOVSKY and a co-conspirator. The Indictment names six patients that were involved in Dr. Nosovsky’s conspiracy to defraud Medicare; E.P., M.P, T.R., J.D., A.C., and J.M. The indictment alleges that Dr. Nosovsky and his co-conspirators used the following means to perpetrate the fraud with regard to Medicare Beneficiary E.P. These alleged facts are, except for dates and the specifics as to medication prescribed, the same for all the other five patients. On or about November 1, 2004, ISAAC NOSOVSKY signed a progress note falsely indicating that he had examined Medicare beneficiary E.P. and that the patient required 80 units of the medication acthar gel . . . . On or about November 1, 2004, FAUSTINA ADELA GONZALEZ prepared an "Infusion Therapy" sheet falsely indicating that GONZALEZ had administered 80 units of acthar gel to Medicare beneficiary E.P. On or about November 1, 2004, ISAAC NOSOVSKY signed a superbill falsely indicating that Medicare beneficiary E.P. had received 70 units of acthar gel. On or about November 1, 2004, a co- conspirator paid a cash kickback to Medicare beneficiary E.P. On or about December 8, 2004, a co- conspirator caused the submission of a false claim to Medicare on behalf of the Nosovsky clinic, seeking reimbursement for a dosage of acthar gel that supposedly had been provided to Medicare beneficiary E.P. on or about November 1, 2004. On or about March 30, 2006, Dr. Nosovsky was arraigned in the United States District Court, Southern District of Florida, on the Indictment and entered a plea of not guilty. On or about May 31, 2006, Respondent was found guilty by jury verdict of all seven counts of the Indictment. On August 14, 2006, United States District Judge Paul Huck adjudicated Dr. Nosovsky guilty of the criminal offense charged in the Indictment. Judge Huck sentenced Dr. Nosovsky to 60 months’ incarceration on Count 1, 65 months’ incarceration on Counts 2-7, to run concurrently; participation in a drug/alcohol treatment program while incarcerated; three years’ supervised probation; 200 hours of community service; and, restitution in the amount of $1,305.066. The Relationship of Dr. Nosovsky's Convictions to the Practice of Medicine. In light of the jury conviction on all counts of the Indictment, it is concluded that Dr. Nosovsky engaged in the activities alleged in the Indictment for purposes of this proceeding. All of those activities related to the practice of medicine. But for Dr. Nosovsky's license to practice medicine in Florida, Dr. Nosovsky would not have been able to commit the crimes for which he was committed. It was his license to practice medicine that facilitated his ability to open the Nosovsky Clinic, to obtain a Medicare provider number, and to fully participate in the Medicare program. All of the activities he engaged in, such as signing necessary Medicare documents and medical backup, were carried out in his capacity as a licensed Florida physician. Based upon the Affidavit of John P. Mahoney, M.D., which is found credible, the crimes for which Dr. Nosovsky was committed evidenced a lack of honesty, integrity, trustworthiness, good judgment, and sound morale character, all attributes expected of physicians licensed in Florida. The scope and severity of Dr. Nosovsky's conduct evidences a lack of these qualities. Prior Disciplinary Action. Dr. Nosovsky was previously disciplined by the Board of Medicine in Department of Business and Professional Regulation v. Isaac Nosovsky, M.D., DBPR Case No. 92-00411. In particular, Dr. Nosovsky was found to have violated Section 458.311(1)(m), Florida Statutes (failure to maintain medical records justifying a course of treatment), and Section 458.311(1)(t), Florida Statutes (the standard of care expected of physicians).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Isaac Nosovsky, M.D., has violated Section 458.331(1)(c), Florida Statutes, as described in this Recommended Order; and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 23rd day of March, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 23rd day of March, 2007. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz, Dutko & Kroll, P.A. 600 South Andrews Avenue, Suite 500 Fort Lauderdale, Florida 33301-2802 April Dawn M. Skilling, Esquire Office of the General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Larry McPherson, Executive Director Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner is entitled to sit for the examination for licensure as a physician assistant.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: 1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization ... Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . Petitioner's application to sit for the examination for licensure as a physician assistant was denied by an Order entered by the Board of Medicine on March 12, 1992. The Order cited the following four grounds for the denial: The applicant (Petitioner) does not have a medical degree as required by Sections 458.347(b)1.b. and 458.311(1)(f)3.a., Florida Statutes. The applicant has been unable to provide adequate evidence that he was a resident in Florida on July 1, 1990. The applicant has failed to account for all time and activities on his application from July 1981 - May 1982. The applicant has failed to list all employment activities on his application when compared to the Resume of Qualifications he submitted. Petitioner attended medical school at the Universidad Central del Este (UCE) in the Dominican Republic from 1975 to 1981. Petitioner testified that he completed his assigned curriculum and that he participated in graduation exercises. Petitioner did not receive a diploma or a medical degree from UCE because he owed the university for tuition. In response to an inquiry from Respondent, the Dean of Medicine of UCE provided the following information: ... [W]hile it is true that [Petitioner] completed the curriculum of our School of Medicine, he has other requisites to be completed. Among these is an outstanding debt for registration fees at our University. Until this debt is satisfied he cannot be awarded the degree of Doctor of Medicine, nor can any documents be issued. Petitioner's application and the documentation he initially submitted in support thereof did not establish that Petitioner met the residency requirements of Section 458.347(7)(b)1.d., Florida Statutes. The evidence submitted at the formal hearing established that Petitioner was a resident of the State of Florida on July 1, 1990, and at all other times pertinent to this proceeding since that time. Petitioner, in his application for licensure, failed to set forth his activities between July 1981 and May 1982./1 Petitioner has subsequently provided that information to the Respondent. During that time, Petitioner was unemployed and studying for his medical examinations. Petitioner, in his application for licensure, failed to completely set forth his employment history, including his work as a medical health counselor and as a mental health supervisor. His employment history is required by the application form and should have been included as part of his application package. All information pertinent to his employment has now been provided by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application on the grounds that he is not a graduate of a medical school recognized by the World Health Organization. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the parties' factual stipulations: Petitioner's Pre-Immigration Activities In Nicaragua Petitioner is a native of Nicaragua. He obtained his medical education at the National University of Nicaragua (hereinafter referred to as the "University"). He graduated from the University in 1961 with a Doctor of Medicine and Surgery degree. Petitioner later received a Bachelor of Arts degree in psychology from Nicaragua's Central American University. Thereafter, he completed law school in Nicaragua; however, because he was an outspoken critic of the Sandinista government, he did not receive his law degree. Petitioner practiced medicine in Nicaragua for more than 26 years before immigrating to the United States for political reasons 3/ on March 10, 1988. His reputation as a physician in Nicaragua was excellent. Moreover, he provided at his "White Cross" (also referred to herein as "Cruz Blanca") clinic in the city of Managua, which he established in 1972, free medical services to those who were unable to pay for such services. He also volunteered his time and services to various organizations such as the Nicaraguan Professional Boxing Association, of which he was at one time the President, and the Nicaraguan national baseball team. Petitioner's Application For Licensure As A Physician Approximately 19 months after immigrating to the United States, Petitioner submitted to the Board an application for licensure as a physician pursuant to Section 458.311(10), Florida Statutes. On the application form, under the heading "Medical Education," Petitioner indicated that he had studied at the University's Leon, Nicaragua campus from April 1, 1952, to January 30, 1953, and at the University's Managua, Nicaragua campus from April 1, 1958, to January 30, 1959. He provided no other information under this heading. Under the heading "Practice/Employment," Petitioner indicated that from January 1, 1962, to October 30, 1972, he had seen "[p]rivate [p]atien[t]s" at his "[o]wn [c]linic" in Managua and that from November 1, 1972, to February 20, 1988, he had been the "Director of Internal and Famil[y] Medicine" of the "White Cross of Nicaragua" in Managua. He provided no other information under this heading. On December 1, 1989, the Board sent Petitioner written notification that his application was incomplete for the following reasons, among others: The World Directory of Medical Schools indicates duration of studies six years with one year being a rotating internship and one year social service before you are awarded the Doctor of Medicine and Surgery and registration with the Ministry of Public Health you may engage in private practice. In the form of a sworn affidavit please explain or answer the following questions regarding your application: It appears your studies only lasted 18 mos. (4-52 to 1-30-53) and (4-1-58 to 1-10-59). It is not apparent you completed the required 1 yr social service. Application indicates you were in medical school from 4-1-58 to 1-1-59 and in residency at General Hospital from 1-1-59 to 12-1-59. Please explain the apparent discrepancy. . . . 7. Account for the following time: 2-2-88 to the present. . . . Petitioner responded by writing the Board a letter. The Board received the letter, as well as the attachments Petitioner sent along with it, on January 6, 1990. Petitioner's letter provided in part as follows: Following your letter of December 1, 1989, here are my answers to the questions made to me in order to complete my Application No. 88, within the framework of the law No. 458.311, "Licensure by examination." SEE ENCLOSED ATTACH[MENT] ONE (1).- Studies: 4-1-52 to 12-31-58. I enclose evidence on intense medical practice; when I graduated there was not Social Service for graduated medicine students, however, in addition to the rotatory practice I have 2 internship years. See enclosed Attach[ments] two (2) and three (3) Residency General Hospital from 1-1-59 to 12-31-59. See Enclosed attach[ments] (1) and (3). . . . 7. Since 2-2-88 I live in Miami without practicing my profession; presently I am doing some research and writing two recently finished books. From Miami I am also managing the medical institution "CRUZ BLANCA," of which I am the Director - see enclosed Certificate-; the latter, together with other data-evidence confirms my medical professional practice since I graduated. -See Enclosed attach[ments] (4) and (3). . . . I hope I have completed all the information requested; I will be waiting to hear from you for any other point th[at] may arise regarding my request. Thanks. Attachment (1) referred to in Petitioner's letter was a written statement by Petitioner in which he stated the following: The Medical Education in Nicaragua was of seven years and one year of practice in the General Hospital. The Medical School had two locations respectively in Leon and Managua. My Medical Education was from April 1, 1952, to Dec. 31, 1958 = seven years. MEDICAL EDUCATION Name of Medical School: Medical School of the National University of Nicaragua: LEON- Nicaragua From: April 1, 1952 To: January 30, 1953 April 1, 1953 To: January 30, 1954 April 1, 1954 To: January 30, 1955 April 1, 1955 To: January 30, 1956 April 1, 1956 To: January 30, 1957 April 1, 1957 To: January 30, 1958 Managua- Nicaragua From: April 1, 1958 To: December 31, 1958 There are two months of vacations : February and March, every year. Leon and Managua Nicaragua are the same University in different localities. My INTERNSHIP: General Hospital of Managua from 1-1-59 to 12-31-59. On January 10, 1990, the Board sent Petitioner written notification that his application was still incomplete. In this written notification, the Board requested, among other things, that Petitioner have his letter, "retyped in the form of a sworn affidavit." Petitioner complied with this request and resubmitted the letter, in affidavit form, to the Board, along with other materials. Among the other materials he sent to the Board was a certificate from the Secretary of the Board of Directors of Cruz Blanca, which provided as follows: The undersigned Secretary of the Board of Directors of the Cruz Blanca Institution of Medical Social Service, established according to the laws of the Republic of Nicaragua, issues these presents to certify that Dr. Leon Cesar Delgadillo was our founder in the year nineteen hundred seventy-two and that he has acted as our Medical Director and Executive President of the Board of Directors since then, being also in charge of the responsibility of Internal Medicine. Dr. Leon Cesar Delgadillo is a well-known and experienced doctor in the Republic of Nicaragua. He attended seven years of academic studies at the National University of Nicaragua and one year as intern at the General Hospital of Managua which was destroyed by a devastating earthquake in nineteen hundred and seventy-two. He then became an intern at the Social Security Hospital for one more year followed by another year of residency at the Psychiatric Hospital of Managua, Nicaragua. At that time the Medical Social Service did not exist, but Dr. Delgadillo who has a great human sensibility has practiced Social Medicine at Cruz Blanca. His License to practice both private and institutionally as well as his diploma are legally registered at the Ministry of Health. Dr. Delgadillo is also author of "La Dieta Feliz" (The Happy Diet) a best seller in Nicaragua and Central America and presently he has finished writing two books which will soon be published "VIDA Y SALUD CON FISIODINAMIA" (LIFE AND HEALTH WITH PHYSIODYNAMICA) and an educational novel of intense drama about AIDS titled "INFIERNO EN LA TIERRA" (HELL ON EARTH). Due to political reasons, he has lived in the United States since February 2, 1988, but from there he directs our Institution and has been busy there, in the USA, with the abovementioned books of which he is the author. His degree of Medicine was signed by the President of the Republic because that was the law and practice at that time. On February 19, 1990, the Board, having determined that Petitioner had "substantially complied with the requirements set forth in Section 458.311(10)(a), Florida Statutes," and that it was "likely that [Petitioner would] be able to fully comply with all the requirements," issued an order granting "conditional certification of the application of [Petitioner] pursuant to Section 458.311(10)(a), Florida Statutes," thereby authorizing Petitioner to enroll in the University of Miami's Comprehensive Medical Review Program, which was designed to prepare foreign medical school graduates to take the FLEX licensure examination. Petitioner subsequently enrolled in and successfully completed the program. In response to a letter from the Board indicating what he needed to do to "fully comply with all of the requirements of Section 458.311(10)(a), Florida Statutes," Petitioner sent the Board a letter, dated March 26, 1990, in which he stated, among other things, the "corre[c]t date [he] left [his] country [was] 3- 10-88." On July 10, 1990, Petitioner sent another letter to the Board. In his letter, he stated, among other things, the following: My date and port of entry into E.U. is Miami, Mar. 10-86 and the same day arrived [in] San Francisco. I am newspaper reporter. (see page 3 Immigration Statement). Petitioner enclosed page 3 of the "Immigration Statement" to which he referred in his letter. On this page of the "Immigration Statement," Petitioner had indicated that he was a "travelling correspondent of the news radio 'El Momemto de Radio Mundial de Nicaragua.'" On July 26, 1990, the Board sent Petitioner a letter advising him that he had to submit the following material in order to complete his application file: In the form of a sworn affidavit please account for your activities from the date [you] entered the United States until the present[. Y]ou[r] application and other supporting documents contain discrepancies regarding the exact date, port of entry and your activities in the United [S]tates. INS verification indicates date of entry of 3/10/86. Your letter of July 10, 1990 is not acceptable. In response to this letter, Petitioner submitted to the Board a sworn affidavit, dated August 2, 1990, in which he stated the following: Since I entered [t]he United States [o]n 03-10-88, I have been working as a foreign journalist for a Nicaraguan news agency. On this date I entered into the United States by the International Airport in Miami, Florida. This information is in the Declaration signed by me on March 28th of 1988 and filed in your office. Petitioner applied to take the December 1990 FLEX examination. He submitted the completed application and a $500.00 examination fee to the Board. In a letter, dated October 19, 1990, accompanying the fee, Petitioner reiterated that he was working as a foreign journalist for a news agency. On November 7, 1990, the Board sent Petitioner a letter which contained the following advisement: Pursuant to the Final Order dated February 19, 1990 the following material is required to complete your application file. This material must be received in this office no later than November 14, 1990. The Office of Naturalization and Immigration verifies your date of entry as March 10, 1986; but you give your date of entry as March 10, 1988. Please have INS submit to this office a verification of your exact date of entry into the United States. Information requested above must be received in this office on or before 11/14/90 or you will not be allowed to take the December 1990 FLEX EXAM. Petitioner timely furnished the Board with documentation from the Immigration and Naturalization Service verifying that he entered the United States on March 10, 1988. On November 21, 1990, the Board, through its Executive Director, sent Petitioner the following letter: This is to advise you that your application to take the Course developed by the University of Miami as directed in Chapter 89-374, Laws of Florida, is now complete. Based on your demonstration of full compliance with the requirements of Section 458.311(10)(a), F.S., as amended by 89-541, Laws of Florida, your application will be presented to the Board of Medicine for full certification for the Course at a meeting of the Board November 30,- December 2, 1990. You will not be required to be in attendance at this meeting. Should you have any questions whatsoever, please do not hesitate to contact this office. Petitioner took and failed the December 1990 FLEX examination. He contested his failing grade in a letter received by the Board on March 20, 1991. In his letter, he stated that he was a "Medical Doctor, Ps[y]chologist and Lawyer of Nicaragua" and he accused the Board of discriminating against him and infringing upon his civil rights. Petitioner's examination challenge was referred by the Board to the Division of Administrative Hearings, but was subsequently returned to the Board with the recommendation that the Board dismiss Petitioner's challenge. Petitioner's Application For Certification As A Physician Assistant On or about June 21, 1991, Petitioner filled out an Examination Application for Certification as a Physician Assistant (hereinafter referred to as the "Application"). He thereafter submitted the Application, along with a $400.00 application fee, to the Board. The Board received the Application and fee on June 24, 1991. On the first page of the Application, Petitioner indicated, among other things, that he had received his Doctor of Medicine and Surgery degree from the University on August 11, 1961. On the second page of the Application, Petitioner indicated that on July 1, 1990, his place of residence was Miami, Florida. He further indicated that he wished to be issued a temporary certificate. In response to the question on page 2 of the Application, "Did you attend a college or university," Petitioner answered "no." In response to the question on page 2 of the Application, "Did you receive a degree other than an M.D., to include undergraduate degree," Petitioner also answered "no." On pages 2 and 10 of the Application, Petitioner listed "all places of residence (where lived) during all periods of medical school" as follows: Leon, Leon Nicaragua from April 1, 1952 to January 30, 1958 Managua, Managua, Nicaragua from April 1, 1958 to Dec. 31, 1958 Miam[i], Florida from Feb. 24, 1990 to Nov. 20, 1990. February 24, 1990, to November 1990, was the period that Petitioner attended the University of Miami's Comprehensive Medical Review Program. Petitioner further indicated on pages 2 and 10 of the Application that had attended "medical school" at the Leon campus of the University from April 1, 1952, to January 30, 1958, at the Managua campus of the University from April 1, 1958, to December 31, 1958, and at the University of Miami School of Medicine from February 24, 1990, to November 20, 1990. On pages 2 and 3 of the application form, applicants were asked to provide information regarding their "Postgraduate Training" and "Practice Employment." They were instructed as follows: Account for all time from date of graduation from medical school to present. Do not leave out any time. Under "Postgraduate Training" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all postgraduate training (Internship, Residency, Fellowship)." Petitioner indicated that he was in an internship program at the General Hospital of Managua from January 1, 1959, to December 31, 1959, a residency program at the Social Security Hospital of Managua from January 1, 1960, to December 31, 1960, and another residency program at the Mental Health Hospital in Managua from January 1, 1961, to December 31, 1961. Under "Practice Employment" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all practice experience and/or employment." Petitioner indicated that from November 1, 1972, to February 20, 1988, he was the "Director of Familiar Medicine" at the "White Cross of Nicaragua" in Managua. He listed no other "practice experience and/or employment." On page 8 of the application form, applicants were asked to list their "clerkship(s)" and "all places of residence (where lived) during clerkship(s)." Petitioner indicated that he lived in Managua from January 1, 1959, to December 31, 1959, while in a University-supervised internship program at the General Hospital of Managua, that he lived in Managua from January 1, 1960, to December 31, 1960, while in a University-supervised residency program at the Social Security Hospital of Managua, that he lived in Managua from January 1, 1961 to December 31, 1961, while in a University-supervised residency program at the Mental Health Hospital, and that he lived in Managua from November 1, 1972, to December 20, 1988, while he was the "Director of Medicine Familiar" at the "White Cro[s]s of Nicaragua." On August 2, 1991, the Board's Physician Assistant Section (hereinafter referred to as the "Section") sent Petitioner a letter advising him that his Application was incomplete because he failed to submit the following: An accounting of your activities for the following period(s) of time: clerkships from 12/61 to 11/72, 2/88 to 12/88, 12/88 to 2/90, page 3 application practice employment 2/88 to present. page 2 application did you attend a college or university you marked NO explain. page 4 application question 8 you marked NO correct and resubmit. Petitioner responded to this letter by submitting to the Section an affidavit dated August 7, 1991, in which he stated the following: Page 2 application; I attend at the Universidad Nacional Autonoma de Nicaragua, UNAN. [University].- Leon and Managua, Nicaragua April 1, 52 to December 31, 58. Also I attend 5 years Universidad Centro- Americana, UCA [Central American University] degree Psichologist. Clerkships: from 12/61 to 11/72 own private medicine. From 2/88, 12/88 to 2/90, 2/88 to present: In E.U.; don't work in medicine. Question 8, page 4 application question: since I live in E.U. from 2/88 to present don't work in Medicine for do not have license of M.D. On August 26, 1991, the Section sent Petitioner a letter advising him that his Application was still incomplete. The letter further provided as follows: In your affidavit of August 7, 1991 (copy attached) you indicated that you attended Universidad Centro-Americana, UCA for 5 years and obtained a degree in Psichologist. Please submit diploma and transcripts and translations of transcripts, notarized as stated above, dates of attendance and where the university is located. Please resubmit pages 8 and 9 (attached) listing only core clerkships while attending medical school at Universidad Nacional Autonoma de Nicaragua UNAN. Be specific with dates, location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. We need one additional acceptable source of documentation of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please account for your activities for the following periods of time, listing in chronological order from date of graduation to present date, including all practice experience and/or employment or unemployment: From February 20, 1988 to present. Petitioner responded by letter dated August 29, 1991. In his letter, Petitioner argued that it was not necessary for him to provide any additional information regarding his psychology degree because such information was "impertinent or irrelevant." He further contended that he had "sufficiently explained" the "other points [in the Section's August 26, 1991] letter (2,3,4)." In addition, he invited the Section, if it wanted more detailed information about his past, to examine the materials in his physician licensure application file (hereinafter referred to as "File No. 88"). The Section followed Petitioner's suggestion and reviewed his File No. 88. Not having received any response to his August 29, 1991, letter, Petitioner, on September 23, 1991, sent the Section another letter complaining about the "harassment and intimidation" to which, according to him, he was being subjected by the Section. The Section, on October 15, 1991, wrote to Petitioner and advised him that he needed to do the following to complete his Application: In your affidavit of August 7, 1991 and in your "declaration" notarized on March 26, 1990, you stated that you had completed a Bachelors degree in Psychology; and stated that you attended Jesuit University in Nicaragua where you "finished the school of law." Please substantiate these statements with the appropriate documentation and dates of attendance. You have submitted a certificate issued December 15, 1989 from the Nicaraguan Board of Pharmacy indicating your registration in their books. Please send a notarized copy of the license and/or certificate required to prescribe drugs in Nicaragua. In your declaration of March 26, 1990, you state that you are enclosing several documents, none of which were enclosed. Among those documents was a "medical file of U.C. Davis (University of California, Davis) Medical Center of Sacremento of March 19, 1988." Please provide all reports of treatment and/or evaluation from the Medical Center of Sacremento to include diagnosis and prognosis. We need one additional source of information of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please resubmit pages 8 and 9 (enclosed) listing only core clerkships and rotations while attending medical school at Universidad Autonoma de Nicaragua. Be specific with dates, location of hospital, institution or individual where the clerkships was performed or supervised. List affiliate University or College. You have failed to respond adequately to questions concerning your activities from the time of your graduation from medical school until the present time. On page 3 of the application form (enclosed) please complete the information under "practice experience" as instructed. List all practice experience and/or employment, including month, day and year of practice and/or employment. Do not leave out any period of time. Your application will not be considered complete until you have adequately explained your activities from graduation until the present. You have reported your date of entry into the United States as a Nicaraguan exile as: March 10, 1986; February 6, 1988; February 23, 1987; February 2, 1988 and March 10, 1988, in letters and affidavits prepared by you. Please explain these discrepancies. Also we have received two conflicting statements from the Immigration and Naturalization Service regarding your date of entry as an exile. It will be necessary for you to request an explanation from the Immigration and Naturalization Service to clarify their conflicting documents. Petitioner responded by letter dated October 23, 1991. In his letter, he stated the following: I see you have my file 88 of the Board of Medicine. I am attempting to reconcile your accustomed hostility and for this reason I send you letter Nov. 21/90 of "full compliance from Dorothy Faircloth, Executive Director, Florida Board of Medicine. Please, you think, think, think . . . and you don't contradict and the Board of Medicine and its Executive Director. For politeness I send you "personal documents" and I feel you are intimidateing to me or also You are inciteing to me at to lie. Documents: Letter Florida Board of Medicine 11/21/90 Original FPL's Bill Jul. Aug. -Ju Jul. -May. Jun., 90 Medical File of U.C. Davis . . . Sacramento . . . "PRIVATE" Two Verifications of Information from Migration . . . Below Signed for Richard B. Smith (on Yellow) District Director. - You don't have jurisdiction in this. (Abuse of authority). -Bachelors in Psychology and "finihes the school of law" degree is impertinent and irrelevant to Physician Assistant Section and all this in Nicaragua. -I have only certificate from the Nic. Board of Pharmacy. -Clerkship only General Hospital of Managua, Social Security Hospital, and Mental Health Hospital. After private medicine all time. You are harassing to me, intimidateing and abuseing of my civil rights and I will have to go at the Judge; You are having to me damage. 4/ On November 14, 1991, the Section sent Petitioner a letter advising him that his application was still incomplete and repeating the requests made in numbered paragraphs 1, 5, 6 and 7 of its October 15, 1991, letter to Petitioner. The letter, like the previous letters the Section had sent him, was unsigned. Petitioner responded by letter dated November 18, 1991, in which he stated the following: I have full my file by Physician Assistant and please, I don't want "nobody else" your anonymous letter, without signature and full of bureaucratic harassment. My rights I will debate it in the instance of Law that it concern. At the bottom of the letter, under Petitioner's signature, was a "Postscript," dated November 20, 1991, which read as follows: I send you fotocopy of Immigration and Naturalization service; "fast" you will have original from Immigration by mail. You don't have jurisdiction on matter of Immigration and your hostility is it "abuse of authority" and also is illegal. You infringe my civil rights. "We have to avoid the risorgimento of the Nazism and the Ku Klux Klan (KKK) in all the sectors," this involve: Racialism, Prepotency, irrationality, intolerance, perversion, terrorism, intimidation . . . etc. and it is crime of hate (Law by crime of hate F.S. 1989) The Section next communicated with Petitioner by letter dated December 17, 1991. The letter advised Petitioner that he needed to do the following to complete his application: Translation of medical school diploma, prepared as instructed: The translation of the diploma is a copy and is not notarized as stated above; the translation does not indicate that it was done by a certified translator. Translations must be done by a certified translator and bear his seal or statement of certification. Please provide the translator with a copy of criteria for translation (enclosed). Translations or transcripts, prepared as instructed: The notary did not affix the seal to the translation of the transcripts. The translation is a copy and as such must be notarized as is stated above. On page 2 of the application under Medical Education your dates of attendance at the University of Nicaragua do not agree with your previous application, (exile file #88). PA Application: Med School: 4/1/52-1/30/58 Exile File #88: " " 4/1/52-1/30/53 and 4/1/58-1/30/59 Please clarify these discrepancies in affidavit form. Please resubmit pages 8 and 9 of the application to indicate your core clinical clerkships only. List specific date(s), type of rotation, and name and location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. An accounting of your activities for the following period(s) of time: 12/31/61 to 11/1/72. List all practice experience and/or employment, do not leave out any period of time. The Aids certificate submitted does not indicate AMA approved category I. Please submit proof of AMA Category I approved training, or request in affidavit form a 6 month extension in order to obtain AMA approved Category I course. Petitioner responded by affidavit dated December 31, 1991, to which he appended various documents, including a revised version of pages 8 and 9 of his Application as requested in numbered paragraph 4 of the Section's December 17, 1991, letter. In the affidavit, Petitioner stated the following: Translation of medical school diploma, prepared as instructed: notarized, the translation was done by a certified translator and it has or bear his seal and statement of certification. There are in Exile file No. 88 and my file for Certification as a Physician Assistant in each one, respective translation of the diploma "full criteria of law for translation." Translations was prepared by a Certified translator of Professional Traslating Services, Inc.- Suite 540, Courthouse Tower Building.- 44 West Flaguer Street.- Miami, Florida 33130 Phone: (305) 371-7887 I ask for please, send to me fotocopy of each one, file No. 88 and PA application, in order to delimitate responsibility. Translations of transcripts, prepared as instructed: The notary affixed the seal to the translation of the transcripts and it was notarized. Please, send to me fotocopy of each one, file No. 88 and PA application to delimitate responsibility. The discrepancies of dates under Medical Education of attendance at the University of Nicaragua was clarified on letter notarized January 19, 1990 in reply letter of December 1, 1989 by William R. Flynn, Senior Clerk, Department of Professional Regulation Board of Medicine, paragraph No. 1 file No. 88 (attached fotocopy) and affidavit of the 7th day of August, 1991 in reply your letter of the august 2, 1991 paragraph No. 1, that have your OK on the left margin (to see attached fotocopy). Confirmation Date: Med. School, April 1, 1952 to December 31, 1958.- Application Physician Assistant Section. These discrepancies are result of mistake in the transcription and dates and numbers at the remote time and distance and it was in opportune moment clarified. But it is more important to appoint that the application for certification as a Physician Assistant of the 21 day of June, 1991 page 2 and 10 they are with its correct dates and that your letter 12/17/91 paragraph 3 are free Objections I am incorporating as pages 3 and 4 in this affidavit the corresponding pages 8 and 9 of the application to indicate my core clinical clerkships; really this question was formulate with confused and ambiguous terms. My application is concrete and certain, page "8" application for certification as Physician Assistant. From 12/31/61 to 11/1/72 own private medicine; See affidavit of the 7th day of August, 1991, attached fotocopy. The AIDS certificate of Miami Dade Community Dade, Medical Center Campus for Allied Health Professions. Attached program; You will receive direct information of the Miami-Dade Community College Med. Center Campus. Petitioner, after receiving the Section's December 17, 1991, letter, also sent a letter to Vytas Urba, an assistant general counsel with the Department of Professional Regulation. In his letter, he accused the Section of acting with "madness and hatred" and claimed that he was the victim of a "conspiracy" to violate his civil rights that had resulted in damages of $99,999.99. By affidavit dated January 14, 1992, Petitioner requested that the Section give him a "6 month extension in order to obtain an AMA, AIDS certificate approved Category I course." Among the documents appended to the affidavit was a translation of his "Medical School Diploma." On January 28, 1992, the Section sent Petitioner a letter, which indicated that "the following [was] necessary to complete [his] application:" While you have stated on several occasions that you have not practiced medicine since arriving in the United States, you have not responded to questions regarding your activity or employment. It is not enough to merely state that you are not practicing medicine, you must account for your activities from 3/10/88 until the present. You have previously stated that you are a correspondent for Nicaraguan newspaper and radio station but have not substantiated this employment with any information. This will be the THIRD REQUEST for you to account for your activities from 3/10/88 until the present. Please complete the enclosed page 3 of the application as instructed. You must identify, by address and location the names of all employers, or state in affidavit form that you have not been employed in any way since 3/10/88. You have previously stated that in the period from 12/61 to 11/72 that you had a private practice in Managua. You have not identified what type of practice this was. What specialty, or field of medicine did you practice during this time. Your affidavit of 7 August 1991 states that you attended for 5 years the Universidad Centro-Americana, and that you received a degree of "Psichologist" from this school. Please provide the location of this school and the dates of your attendance. Your previous response that this information is "irrelevant" is not acceptable. You have voluntarily submitted this affidavit, which conflicts with other statements that you have made regarding your activities and you must verify the location of the school and dates of attendance. The translation of your diploma recently submitted is returned; this document is obviously a copy. Any copy must be notarized as is stated above. Your previous application does not contain a copy of this translation that is notarized as required. Please resubmit a translation of your diploma that is either an original document or properly notarized. The translation of your transcripts was also a copy that was not notarized however there was an acceptable copy in your previous application. With regard to HIV/AIDS training your request for a six month extension is accepted. The instructions provided with the application clearly state that this training must be AMA Category I approved training. This information should be requested of the provider prior to taking any HIV/AIDS course. You may enquire of Miami Dade Community College as to whether they are authorized to provide AMA Category I training. If they can provide you with verification of this course being AMA Category I approved, the training will be accepted upon receipt of this verification. Petitioner responded by affidavit dated February 10, 1992, in which he stated the following: There are in file No. 88 letter January 19, 90 . . . . notarized DOCUMENTS with my activities from 3/10/88 until the present, question 1 and the period from 12/61 to 11/72 my private practice in Managua, question 2 (attached); also affidavit 22th day of August, 1990 and notarized letter January 19, 1990 (attached fotocopy) over-marked on green. Next page I ratify and complement question number 1 and I state that in the period from 12/61 to 11/72 I practiced Familiar Medicine, question number 2. I attended for 5 years at the Universidad Centro-Americana, - from 1969 to 1972, this University in Managua, Nicaragua, C.A. (Re: question number 3). - Psichology School. I resubmit (THIRD TIME) my diploma notarized as required; please send me two previous documents submitted. I requested at the Florida Board of Medicine, Physician Assistant Section through Cecilia Abrahansem (Director) . . . to eliminate the unlawful monopoly with HIV/AIDS AMA Category I course. I am foreign journalist for "El Momento" Nicaraguan news agency, Radioperiodico El Momento, RADIO MUNDIAL, Managua, Nicaragua. This activity until the present. (From 1/30/88 to present) Among the documents appended to the affidavit was a revised version of page 3 of Petitioner's Application, which reflected, in addition to his previously disclosed employment with the "White Cross" as its "Director of Familiar Medicine" from November 11, 1972, to February 20, 1998, his employment as a "Foreign Journalist" with "El Momemto Nicaraguan news agency" from "1/30/88 To: the present." By letter dated June 4, 1992, Petitioner was directed to appear before the Physician Assistant Committee of the Board (hereinafter referred to as the "Committee") at its June 12, 1992, meeting. Petitioner appeared before the Committee at its June 12, 1992, meeting as directed. Inasmuch as he has substantial difficulty understanding, and communicating effectively in, English, the Committee provided Petitioner with the services of an interpreter. Members of the Committee asked Petitioner various questions. The questions were asked in English and translated to Spanish, Petitioner's native language, by the interpreter. Petitioner responded in Spanish. The interpreter translated his responses to English for the benefit of the Committee. Asked when he had arrived in the United States, Petitioner responded, "March 10, 1988." He was then asked when he had last practiced medicine. His initial response was, "in Managua, Nicaragua." After the question was repeated, however, he answered, "before this time." In response to the question of whether he had had any exposure to the practice of medicine since his arrival in the United States, Petitioner stated, "never here in the States." Petitioner told the Committee, in response to their inquiry regarding the matter, that since his arrival in the United States he had been "a writer and a reporter." Petitioner responded in the affirmative when asked if his only exposure to medicine since he had been in the United States was the intensive review course he had taken at the University of Miami from February to November, 1990. Petitioner was asked whether he had gone to law school. After responding in the affirmative, he was asked when he had gone to law school. Petitioner answered that he was unable to give an "exact date," but it had been "about five years before he [had] left the country." He added that he had gone to law school at night. Asked whether he had received a law degree, Petitioner responded that he "couldn't" because it "wasn't possible . . . politically." At no time in responding to the Committee's questions or during any other phase of the application process did Petitioner knowingly provide false information or withhold pertinent information with the intent to mislead or deceive those evaluating his Application about his qualifications to be certified as a physician assistant. Any inaccuracies or omissions in the information he provided was the product of, not an intentional effort to defraud, but rather either inadvertence, carelessness, faulty or limited recall, misunderstanding, limited English language comprehension and communication skills, 5/ or a good faith belief that the information in question was not germane. After questioning Petitioner, the Committee voted to deny Petitioner's Application. On August 15, 1992, the Board issued a written order denying the Application on the following grounds: Your failure to submit a properly completed application. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you last worked in the field of medicine, and because of the length of time since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public. Petitioner's Other Activities Since His Arrival in the U.S. As he attempted to make clear during the application process, Petitioner has not engaged in the practice of medicine in the United States since his arrival in this country. He has studied medicine on his own, as well as performed medical- related research in connection with several books he has written, however. He has also done volunteer work for the Red Cross. Petitioner has continued to direct and administer from the United States the operations of the "White Cross" clinic. Recently, he has started to again visit the clinic on a fairly regular basis and treat patients. The first of these post-March 10, 1988, visits occurred sometime in 1992. Since 1988, Petitioner has not received any compensation for the work he has performed for the clinic. In addition to the foregoing activities, Petitioner has worked as a journalist since coming to the United States as he indicated on the revised version of page 3 of his Application. Petitioner has not lost the ability he demonstrated throughout his many years of practice in Nicaragua before immigrating to the United States to treat patients in a safe and effective manner. He is currently able to practice as a physician assistant with reasonable skill and safety to the public, notwithstanding that he may have had some difficulty in following the instructions he was given (in English) by the Section during the application process and providing the Section with the information he desired. 6/ Furthermore, Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order certifying that Petitioner is eligible to take the examination for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, and granting him temporary certification pursuant to Section 458.347(7)(b)2., Florida Statutes, pending the results of the examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1993. STUART M. LERNER 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 3rd day of June, 1993.
