The Issue Whether Petitioner's medical license should be reinstated.
Findings Of Fact Stipulated Facts By Final Order issued in Case No. 92-011898, filed February 16, 1995, Respondent adopted a consent agreement. The Administrative Complaint in the case charged Petitioner with violations of Subsections 458.331(m)(q) and (t), Florida Statutes. The Final Order placed Petitioner on probation for a period of 3 years under the indirect supervision of another licensed physician, and imposed reporting requirements and review of medical records. The Final Order also required Petitioner to pay a fine of $5,000, to be paid in installments; complete five hours of continuing medical education in risk management and 10 hours of continuing medical education (hereinafter "CME") in pain management prior to February 16, 1996; complete a medical records course offered by the Florida Medical Association (hereinafter "FMA course") and a course on prescription drugs offered by the University of South Florida (hereinafter "USF course") during the first year of probation. Finally, Petitioner was restricted concerning the prescription of Schedule II controlled substances. By correspondence dated February 17, 1995, Petitioner was notified that his first appearance before Respondent's Probation Committee (the Committee) was scheduled for March 16, 1995. Petitioner was reminded that he could not practice medicine until his supervising physician (hereinafter "monitor") was approved. By separate correspondence dated February 17, 1995, Petitioner was provided with brochures for the USF and FMA courses. Petitioner was advised that the USF course fills up quickly. On March 10, 1995, Pauline Gray, M.D., notified the Agency for Health Care Administration (AHCA) that she would serve as Petitioner's monitor. On March 16, 1995, the Committee met. Petitioner advised the Committee that Dr. Gray was ill and unable to attend the meeting, although her appearance was a condition of the Final Order. Petitioner acknowledged that he had been practicing medicine, although his monitor had not been approved; Petitioner further acknowledged receipt of the February 17, 1995 correspondence advising him he could not practice without an approved monitor. Petitioner was advised by the Committee to cease practicing until a monitor was approved. On March 29, 1995, Dr. Gray advised the Department that while she had been ill, she had not stopped practicing, and continued to be willing to serve as Petitioner's monitor. On March 31, 1995, the Department advised Petitioner that his first installment payment on his fine was delinquent. On April 3, 1995, Petitioner advised an AHCA investigator that he did not recall being told to cease practicing, and acknowledged that he had continued to practice after the Committee meeting. Petitioner suggested that his need for a hearing aid could cause confusion. On April 6, 1995, the Department acknowledged receipt of Petitioner's sample prescription form for Schedule II controlled substances, and was again reminded that he could not practice medicine until his monitor was approved. On April 10, 1995, the Department by correspondence again advised Petitioner to cease practice until his monitor was approved; at the request of Respondent, Petitioner was asked to submit an explanatory letter from Dr. Gray concerning her illness and her ability to monitor Petitioner. At the May 18, 1995 meeting of the Committee, Dr. Jeffrey Brooks was approved as Petitioner's monitor. On May 30, 1995, the Board issued its order clarifying the terms of Petitioner's probation, advising that monitor reports were to be made on a quarterly basis. On March 14, 1996, Petitioner was granted an extension of time to complete his CME requirements. On March 20, 1996, Petitioner was provided with sources for the required CME. On March 22 and April 1, 1996, the Department requested immediate submission of three delinquent reports from Petitioner. On April 16, 1996, a Final Order in Case No. 95-13102 was entered. The Administrative Complaint charged that Petitioner practiced medicine without a monitor in violation of the previous Final Order. In this Final Order, Petitioner was placed on six months' suspension, with the suspension stay conditioned on his compliance with the Final Order issued in Case No 92-01898. The Final Order also imposed an additional fine of $1,000.00, due on June 16, 1996, and required Petitioner to successfully complete a laws and rules examination by October 16, 1996. On April 24, 1996, Respondent issued an Order granting Petitioner's request for modification of the terms of the Final Order in Case No. 92-10898. Petitioner was granted an extension of time until October 23, 1996, to complete the risk management and pain management CMEs required, and an extension until December 1, 1996, to complete the USF course. By correspondence dated April 29, 1996, the Department confirmed for Petitioner the new due dates for the CME and USF drug course. On May 10, 1996, the Department requested delinquent reports from Petitioner. On May 16, 1996, Petitioner submitted probationer reports due November 15, 1995, February 15, 1996 and May 15, 1996. Petitioner completed the laws and rules examination on September 19, 1996. As of October 9, 1996, Petitioner had not yet made arrangements to complete the CME and the FMA and USF courses, due October 23, 1996 and December 1, 1996, respectively. In February 1997, Petitioner was notified his November 15, 1996 probationer report was delinquent, and he explained he forgot the report. On March 20, 1997, Petitioner appeared before the Committee and was granted an extension of one year to complete his delinquent CME and the FMA and USF courses. On April 29, 1997, Petitioner was provided brochures for the FMA records and USF drug courses and advised to register immediately. On September 18, 1997, the committee temporarily approved Dr. Stephen Spore to act as Petitioner's new monitor. He was approved on November 13, 1997. On December 6, 1997, Petitioner completed the FMA course. On April 7, 1998, the Department filed a Uniform Complaint with AHCA regarding Petitioner's failure to pay his fine and failure to complete CME. On May 27, 1999, Petitioner completed six hours of CME in risk management. On October 20, 2000, Respondent entered an Order lifting the stay of the suspension imposed in Case No. 95-13102. Petitioner completed the required CME in pain management on October 26, 2000 (1 hour), October 28-29 (9 hours), and November 9-10, 2000 (2 hours). On December 9, 2000, a risk management survey of Petitioner's practice was conducted. On December 19, 2000, Respondent entered a Final Order adopting a consent agreement in Case No. 98-11086.1 Petitioner's license was suspended until the CME in Respondent's prior orders was completed and the risk management review was completed. In addition, Respondent imposed a fine of $2,000.00 and costs in the amount of $696.00, due December 19, 2001. At the time of the March 30 through April 1, 2001 meeting of the Respondent, Petitioner had met all of the requirements for reinstatement specified in the previous Final Orders. Findings of Fact Based on the Evidence of the Record Crystal Griffin was the compliance officer for the Board of Medicine during the period 1992-1998. As compliance officer, Ms. Griffin was responsible for monitoring compliance with disciplinary orders issued by the Board. Ms. Griffin was the compliance officer for Petitioner's probation from the entry of the first Final Order until she resigned in 1998. Upon receiving a disciplinary order, Ms. Griffin sent to the physician an information package which included the due date of every requirement of the Final Order and information explaining how to comply with each requirement. The information package also included brochures for the USF prescribing drug course and the FMA medical records-keeping course. The USF course is given once a year. The FMA course takes four months to complete. Thomas Sweat is a medical malpractice investigator for the Agency for Health Care Administration. In his position, he acts as a probation officer when a medical professional is placed on probation. Mr. Sweat acted in that capacity with regard to Petitioner's probation. Acting as probation officer, Mr. Sweat periodically would interview Petitioner, Petitioner's monitor, and the compliance officer, Ms. Griffin. Mr. Sweat interviewed Petitioner on numerous occasions during which he counseled Petitioner regarding his problems in complying with the terms of his probation. On May 9, 1996, Mr. Sweat interviewed Petitioner at his office. Mr. Sweat advised Petitioner of delinquent probationer reports. Although he had been on probation for over a year, Petitioner stated he was confused about what to include in his reports. Mr. Sweat advised Petitioner to contact Ms. Griffin in that regard. During the May 9, 1996 interview Petitioner admitted he had not made arrangements to complete his required CME and the USF and FMA courses. Even though Ms. Griffin had provided Petitioner the necessary information, he stated that he did not know where to arrange for the courses. On February 4, 1997, Mr. Sweat attempted to interview Petitioner at his office. Upon arrival he found the office closed and vacant with no signs advertising Petitioner's new location. When Petitioner was located, he was admonished that he had violated his terms of probation by relocating his office without notifying the Board. Petitioner had moved his office the previous August. Petitioner stated to Mr. Sweat that it never occurred to him to notify anyone. It is apparent from the testimony presented at hearing that Petitioner either did not understand or did not recall his obligations under various orders issued by the Board. Because of the problems Petitioner had with understanding his obligations of the previous orders of the Board, concerns were raised at the March 30 through April 1, 2001, Board meeting about Petitioner's cognitive thinking and ability to practice medicine safely. The Board voted to deny Petitioner's request for reinstatement and to require him to undergo an evaluation by the CARES program at the University of Florida (UFCARES). The May 3, 2001 Order entered by the Board denying Petitioner's petition for reinstatement and requiring an evaluation by the UFCARES program prior to reinstatement was based on the ground that the Board had concerns regarding Petitioner's ability to safely practice medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Health, Board of Medicine, enter a Final Order denying Petitioner's application for reinstatement until such time that he undergoes the UFCARES program. DONE AND ENTERED this 8th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 8th day of October, 2001.
Findings Of Fact Briccio Dizon Valdez, M.D., (Petitioner) is an applicant for licensure as a medical doctor by examination. The Department of Professional and Business Regulation, Board of Medicine, (Board) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. In 1977, the Petitioner became licensed to practice medicine by the State of Florida. On or about September 25, 1984, the Petitioner entered a plea of nolo contendere to a charge of witness tampering in medical malpractice litigation in which the Petitioner was a party. Adjudication was withheld. The Petitioner was placed on two years probation, fined $1,000 and ordered to perform 250 hours of community service. By Final Order filed June 25, 1985, the Petitioner's Florida license to practice medicine was suspended for a period of three years for sexual misconduct with a patient under his care. By Final Order filed February 27, 1987, the Petitioner's Florida license to practice medicine was suspended for a period of 44 days to run concurrently with the existing suspension. The additional suspension was based on the fact that the Petitioner continued to practice during the appeal of the sexual misconduct suspension, incorrectly believing that his appeal stayed the suspension. On or about August 27, 1987, the Petitioner entered a plea of guilty to a charge of engaging in the sale of encyclopedias without an occupational license. Adjudication was withheld. The Petitioner was placed on probation for a period of one year. By Final Order filed October 24, 1988, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. The case was based on an account by an investigator posing as a patient who allegedly received psychiatric services from the Petitioner during his period of suspension. By Final Order filed November 9, 1989, the Petitioner's Georgia license to practice medicine was revoked based on the revocation of his Florida license. In February 1990, the Petitioner submitted a Florida application for medical licensure. By Final Order filed February 8, 1991, the application was denied by the Board. In October 1991, the Petitioner again submitted a Florida application for medical licensure. In May 1992, the Board Credential's Committee reviewed the licensure application of the Petitioner. The Petitioner appeared before the committee, as did Dr. Ernest Miller, who had performed a psychiatric evaluation of the Petitioner. On June 6, 1992, the Board of Medicine reviewed and denied the Petitioner's application. This is the denial at issue in this proceeding. By Order filed August 5, 1992, the Board denied the Petitioner's application for licensure by examination. The letter of denial provides as follows: The Board of Medicine reviewed and considered your application for licensure by examination on June 6, 1992, in Tampa, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: that you have previously had your medical licensure in Florida and Georgia revoked. Prior to revocation, your Florida license was acted against because of sexual misconduct. You have not provided any evidence of rehabilitation since having your licenses revoked. You have not been in medical practice since 1985. You provided false statements in an affidavit accompanying your licensure application and you were lacking in candor in the testimony you provided to the Board's Credentials Committee. The following findings specifically address each of the identified grounds for the Board's denial of the application: PREVIOUS REVOCATION OF LICENSURE IN FLORIDA AND GEORGIA As set forth herein, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. Based on the Florida proceedings, the State of Georgia first suspended and then revoked the Petitioner's Georgia license. The Final Order revoking the Petitioner's license does not prohibit him from applying for re-licensure. DISCIPLINE OF FLORIDA LICENSE PRIOR TO REVOCATION BASED ON SEXUAL MISCONDUCT The evidence establishes that prior to the revocation of his Florida license, the Petitioner's license has been suspended for sexual misconduct. The period of suspension has been served. The order of suspension does not prohibit the Petitioner from applying for re-licensure. LACK OF EVIDENCE OF REHABILITATION SINCE LICENSE REVOCATION There is no evidence that the Board has directed the Petitioner to undertake any defined program of rehabilitation. There is no evidence that the Board directed the Petitioner to undergo psychiatric evaluation. The Petitioner has sought such evaluation on his own initiative. On several occasions between November 1991 and December 1993, the Petitioner was examined by expert psychiatrist Dr. Ernest Miller. Dr. Miller has been professionally familiar with the Petitioner for approximately eleven years. According to the testimony of Dr. Miller, the Petitioner demonstrates no dysfunction or disorder which would prevent him from adequately practicing psychiatry at this time. There is no cause to believe that the events which led to the Petitioner's suspension and revocation will be repeated. Dr. Miller attended the May 26, 1992 meeting of the Board's Credentials Committee and was prepared to speak on his behalf. Although the evidence is unclear as to whether Dr. Miller was provided the opportunity to speak to the committee during the May 26 meeting, Dr. Miller provided to the Board a written record of the evaluation and his findings prior to the meeting. The greater weight of the evidence establishes that there is no "lack of evidence of rehabilitation since license revocation." There is no evidence that the Petitioner manifests dysfunction or disorder which would prevent him from adequately practicing psychiatry. OUT OF MEDICAL PRACTICE SINCE 1985 Other than as set forth herein, the Petitioner has been out of medical practice since 1985, at the approximately time of the license suspension. He has remained active as a mental health counselor since 1989. There is no credible evidence which would establish that the passage of time since the Petitioner actively practiced is sufficient to deny an application for licensure by examination. FALSE STATEMENTS IN AN AFFIDAVIT ACCOMPANYING THE LICENSURE APPLICATION The letter of denial fails to specifically identify which statements the Board considered to be false. Based on the evidence offered at hearing, it appears that the allegedly false statements are in relation to the Petitioner's performance on the "FLEX" exam. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in his initial application for licensure in April 1977 asserts that he has never failed the FLEX examination. At the time the Petitioner submitted the 1977 application, he had failed the Flex exam in both North Carolina and Georgia. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in the October 1991 application asserts that he has taken the FLEX exams in the State of Georgia and passed on his second attempt. In a sworn affidavit dated January 28, 1992 and forwarded to the Board, the Petitioner states that he took and passed the FLEX exam in 1978 on his second attempt in Georgia. At the hearing, the Petitioner testified that he had taken the FLEX exam in June 1977 and December 1977, both times in Georgia. At the Board's request, the Petitioner authorized the Federation of State Medical Boards to furnish the Petitioner's "Examination and Board Action History Report" to the Board. The report identifies the dates upon which the Petitioner has submitted to the Federation Licensing Exam (FLEX) and the results of those tests. Florida law provides that the FLEX exam must be passed by an applicant prior to licensure. According to the report, the Petitioner has taken the Flex exam on four occasions prior to January 31, 1992. In June 1976, the Petitioner took and failed the FLEX examination in North Carolina. At no time has the Petitioner disclosed that he had taken and failed the FLEX exam in North Carolina. The Petitioner has taken the FLEX examination three times in Georgia. He failed the examination on attempts made in December 1976 and June 1977. He passed the Flex exam in Georgia in December 1977. The Petitioner has disclosed only that he had twice taken the exam in Georgia and has asserted that he passed the exam on his second attempt. The Petitioner suggested at hearing that he was confused by the dates of examination and asserted that he had not intended to misrepresent the facts. The assertion is not credible. The evidence establishes that the Petitioner has submitted false statements in the affidavit accompanying his 1991 licensure application. The evidence further establishes that the Petitioner has submitted false statements regarding his experience with the FLEX examination since the time of his initial application for licensure by the State of Florida. LACK OF CANDOR IN THE TESTIMONY PROVIDED TO THE BOARD'S CREDENTIALS COMMITTEE No transcript of the proceedings before the Board's Credentials Committee was offered or admitted into evidence at the hearing. There is no evidence to support the Board's position that the Petitioner demonstrated a lack of candor in the testimony provided to the committee.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order denying the application of Briccio Dizon Valdez for medical licensure by examination. DONE and RECOMMENDED this 25th day of April, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5581 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected, irrelevant. 11. Rejected, irrelevant. 14. Rejected, argumentative, not supported by the greater weight of the evidence. The cited Georgia Final Order does not state that the Georgia license is subject to restoration upon reinstatement of the Florida license. The Georgia order provides that upon revocation, the license "shall not be subject to restoration." The order also provides that should the Respondent wish to return to medical practice in Georgia, the Georgia board may impose such conditions or restrictions as are deemed necessary for the protection of the public. 25-28. Rejected, irrelevant. 30. Rejected, conclusion of law. 31-33. Rejected, irrelevant, not at issue in this proceeding. 36. Rejected, conclusion of law. 37-39. Rejected, irrelevant, not at issue in this proceeding. 40. Rejected, irrelevant. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, unnecessary. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Paul Watson Lambert, Esquire Michael I Schwartz, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires, Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050
Findings Of Fact The Respondent, Fahmy M. Rizk, M.D., is a licensed physician in the State of Florida, having been issued license number ME0028230. The Respondent is engaged in the practice of medicine at 117 San Carlos Boulevard, Ft. Myers Beach, Florida 33931. A formal hearing was held on August 22, 1978, before a hearing officer of the Division of Administrative Hearings, which resulted in a Recommended Order to the Board of Medical Examiners. The Recommended Order, with findings of fact and conclusions of law, was adopted as the Final Order of the Board of Medical Examiners on October 27, 1978, resulting in the suspension of Respondent's license for two (2) years. Respondent petitioned for reinstatement and modification of the suspension by Petition For Reinstatement And Modification Of Suspension heard on October 25, 1980, in Tampa, Florida. The petition resulted in a Final Order of the Board of Medical Examiners, entered on November 19, 1980, accepting a proposed Stipulation executed by the Respondent, Fahmy M. Rizk, M.D., on November 1, 1980. In the Stipulation, Respondent agreed, among other things: I shall be placed on a probationary status throughout the remainder of my practice of medicine in the State of Florida. During this period of probation, I shall be subject to the following terms and conditions: * * * (c) I shall examine or treat female patients only with the constant attendance of a licensed physician or nurse. Under the Final Order of the Board of Medical Examiners dated November 19, 1980, pursuant to the Stipulation executed by the Respondent on November 1, 1980, Respondent was reinstated to practice medicine in the State of Florida, based upon the requirements in the Stipulation. On June 6, 1981, the Board of Medical Examiners heard Respondent's request to practice medicine outside of a structured medical environment, and the request was denied June 26, 1981. On December 6, 1981, Respondent again requested of the Board of Medical Examiners a modification of his probation terms and conditions to once more practice outside of a structured medical environment, and the request was denied by Order dated January 14, 1982. On June 6, 1982, Respondent petitioned the Board of Medical Examiners for termination of his probation status, and the request was denied by Final Order of the Board of Medical Examiners on June 15, 1982. Again, on December 3, 1983, Respondent petitioned the Board of Medical Examiners to terminate his probation, and the request was denied by Order of the Board of Medical Examiners on January 13, 1984. However, Respondent's orders of probation were modified to relieve Respondent of the requirement that he make semiannual appearances before the Board and to reduce his monitoring physician's reporting from monthly to quarterly. In the year ending approximately February 2, 1986, Respondent examined or treated female patients without the attendance of either a licensed physician or a nurse, licensed or unlicensed. Respondent knew that he was required to have either a licensed physician or nurse in attendance when he examined or treated female patients. Between January and June, 1983, Respondent hired a nurse who was not licensed in Florida for $3.50 an hour to be in attendance when he examined or treated female patients. He misrepresented to Petitioner's investigator that the nurse was licensed in Florida and that she worked for Respondent through 1985. In April, 1985, Respondent also attempted to avoid the conditions of his probation by attempting to persuade Petitioner's investigator that the conditions of his probation had been modified to permit him to examine and treat female patients as long as another female was present although no such modification had been made. Much of the incriminating evidence Petitioner presented consisted of statements Respondent made to Petitioner's investigator. These statements were made voluntarily after the investigator informed Respondent that he was not obligated to speak to the investigator.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medical Examiners enter a final order holding Respondent, Fahmy M. Rizk, M.D., guilty of violating Section 458.331(1)(h) and (x), Florida Statutes (1985), and suspending his license until payment of a $1000 fine, payable in not more than 90 days. DONE AND ORDERED this 6th day of April, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3572 These rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. 9.-24. Subordinate to facts found. 25.-27. Accepted and incorporated. 28.-66. Subordinate to facts found. (It should be noted that "Dr. Murphy," as indicated in the transcript and referred to in proposed finding 29, should be Dr. Mufdi, according to the Hearing Officer's notes.) Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5.-6. Accepted but subordinate to facts found and unnecessary. Last sentence rejected as erroneous conclusion of law; rest accepted and subordinate to facts found. Accepted but subordinate to facts found and unnecessary. 9.-13. Accepted but subordinate to facts found. Rejected that the advice was "in spite of the official policy and procedures" because proof was that the advice was in accordance with the official policy and procedures. Rejected as contrary to the greater weight of the evidence to the extent it implies she was Respondent's only nurse. The evidence was Respondent told Potter that Cordias was part-time and worked when Muskatello was off. Also subordinate as a recitation of testimony. 16.-17. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (Other matters were discussed, too.) Also subordinate. Last sentence rejected, as contrary to the greater weight of the evidence, that those were the only matters discussed; rest rejected in part as erroneous conclusions of law as to the existence of a "fifth amendment privilege" and "right to an attorney" and in part as contrary to the finding that Potter did advise Respondent of his right to remain silent but otherwise accepted and subordinate to facts found. If "medical office" means "examination room," accepted but subordinate and unnecessary. First sentence accepted but subordinate to facts found; as to the second sentence, Potter's testimony was that in October, 1985, Respondent said Muskatello had not worked for him in the last four months; third sentence rejected as contrary to the finding that Respondent told Potter that Muskatello worked for Respondent through 1985 (although the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and readily understandable manner); last sentence subordinate to facts found. Subordinate in part to facts found and in part to facts contrary to facts found. Again, the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and easily understandable manner. It is equally clear that the facts found could have been proved more easily by evidence in addition to Respondent's admissions. But, as found, the evidence as a whole was sufficient to prove both that Mrs. Rizk was not a nurse, licensed or unlicensed, and that Respondent did examine or treat female patients in the year ending approximately February 2, 1986, without a licensed physician or nurse, licensed or unlicensed, being in attendance. Rejected as contrary to facts found. COPIES FURNISHED: David D. Bryant, Esquire 1107 D. Jackson Street Suite 104 Tampa, Florida 33602 Salvatore A. Carpino, Esquire FREEMAN & LOPEZ, P.A. 4600 West Cypress Avenue Suite 410 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent is a licensed respiratory care practitioner, having been issued license number TT 0006767 by the State of Florida. The National Board for Respiratory Care (hereinafter "NBRC") is a voluntary certification board for respiratory therapists and pulmonary technologists. The NBRC administers examinations including the Certified Respiratory Therapy Technician (hereinafter "CRTT") Examination. The CRTT is an entry-level examination for respiratory care practitioners. Obtaining a passing score on that examination and receiving a CRTT certificate is a requirement for licensure in many states. On July 19, 1992, Respondent took the CRTT examination. She obtained a passing score and received a CRTT certificate from the NBRC in July, 1992. Based upon Respondent's obtaining her CRTT certificate, Respondent was licensed as a respiratory therapist in the State of New Jersey. Subsequent to the July 19, 1992, CRTT examination, the NBRC received information that persons sitting for that examination possessed a copy of the examination in advance of the test date along with a purported "answer key." Based upon an investigation and on statistical analyses performed on the examination answers of every candidate sitting for that examination, the NBRC determined that Respondent was one of the individuals who had received a copy of the examination in advance of the test date. On November 24, 1992, the NBRC wrote to Respondent advising her of its investigation and determination. The letter specifically advised Respondent that the NBRC had invalidated the results of her CRTT examination and had so informed the State of New Jersey. That letter specifically instructed Respondent to return her CRTT certificate immediately and that the NBRC no longer recognized her as a Certified Respiratory Therapy Technician. The letter further notified Respondent that the NBRC's Judicial and Ethics Committee would be conducting a parallel investigation. The letter was sent to Respondent by certified mail, and she received it on December 8, 1992. On June 26, 1993, the Judicial and Ethics Committee of the NBRC held a hearing regarding the action to be taken against Respondent. By letter dated October 14, 1993, that Committee advised Respondent, by certified mail, that she was suspended from admission to all NBRC credentialing examinations for an indefinite period of time and that that decision would be reconsidered only if she returned her CRTT certificate as had been repeatedly requested of her by the NBRC. That letter further advised her that if requested by the State of New Jersey, the NBRC would re-test her for licensure purposes only but that under no circumstances would she be re-tested for national certification unless she returned her CRTT certificate to which she was not entitled and the Committee reconsidered her case. Respondent refused to return her invalidated certificate to the NBRC. She continues to refuse to return her invalid certificate, thereby precluding herself from any opportunity to retake the CRTT examination for national certification purposes. On July 28, 1993, the New Jersey State Board of Respiratory Care filed an administrative complaint against Respondent and others, seeking revocation of Respondent's New Jersey license to practice respiratory care for her failure to successfully complete the NBRC examination due to the invalidation of her examination results by the NBRC. By Order Granting Partial Summary Judgment entered December 22, 1993, the New Jersey State Board of Respiratory Care determined that Respondent lacked valid test scores from the NBRC, a prerequisite to licensure in the State of New Jersey. In a Supplemental Order entered on February 1, 1994, the New Jersey State Board of Respiratory Care determined that although Respondent's license to practice respiratory care in New Jersey was revoked, Respondent would be permitted to sit for the CRTT examination to be administered in July 1994, in order to meet licensure requirements in New Jersey. Pursuant to New Jersey's request, the NBRC scheduled Respondent to retake the July 1994 CRTT examination. Respondent failed to appear. Respondent has never retaken that examination. On February 24, 1993, Respondent submitted to the Florida Board of Medicine a licensure application seeking licensure by endorsement. In her licensure application, Respondent represented that she was certified as a respiratory care practitioner by the NBRC and that she was certified on July 19, 1992. As part of her application, Respondent submitted a copy of her CRTT certificate. She did not disclose that her CRTT certificate had been invalidated. Question numbered 5 of that application asked Respondent if she had ever been notified to appear before any licensing authority for a hearing on a complaint of any nature. Respondent answered that she had not. Although Respondent had been notified in September or October 1992 that the State of New Jersey was proceeding against her license, she did not disclose that fact on her licensure application. Respondent's answers to the questions contained in her February 1993 Florida licensure application were made under oath and bear her notarized signature, attesting that her answers are true, correct, and complete. On July 26, 1993, Respondent was licensed by the State of Florida as a respiratory care practitioner based, in part, on her invalidated CRTT certificate. Honesty is an important trait for a practicing respiratory care practitioner, and dishonesty in the practice of respiratory care is potentially dangerous to patients. Respondent was previously licensed by the State of Florida as a respiratory therapist, non-critical care status. That license was revoked on February 6, 1990, due to Respondent's submission of fraudulent information in her application for licensure. Specifically, when Respondent applied for that license, she did not possess either a high school diploma or a graduate equivalency diploma, a requirement for licensure. Respondent, therefore, submitted a copy of her husband's graduate equivalency diploma, which she had xeroxed and altered to reflect her name instead.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her and revoking her respiratory care practitioner license number TT 0006767. DONE and ENTERED this 30th day of January, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-5183 Petitioner's proposed findings of fact numbered 2-21 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Respondent's proposed findings of fact numbered 3-5, 7, 9-11, and 13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting a recitation of the charges against her. Respondent's proposed findings of fact numbered 2 and 15 have been rejected as being irrelevant to the issues herein. Respondent's proposed findings of fact numbered 6 and 8 have been rejected as being subordinate to the issues herein. Respondent's proposed findings of fact numbered 12 and 14 have been rejected as not being supported by the weight of the credible, competent evidence in this cause. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert B. Dell, P.A. 4801 South University Drive Fort Lauderdale, Florida 33328
The Issue The Administrative Complaint in Case No. 90-7826 alleges violations of Chapter 464, Florida Statutes, governing the professional practice of nursing, when Respondent is alleged to have left a medication vial, syringe and needle in a place accessible to patients, in an alcohol and drug detoxification facility in Cocoa Beach, Florida. The Administrative Complaint in Case No. 91-7581 alleges that Respondent is unable to practice nursing with reasonable skill and safety to patients, by reason of illness, or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition, as provided in Section 464.018(1)(j), Florida Statutes. The issues initially submitted for disposition were whether those allegations are true, and if so, what discipline or action regarding Respondent's license should be taken. As discussed below, the parties have resolved the issues with a stipulation.
Findings Of Fact The following constitute the parties' stipulated findings of fact. Ms. Beecher is a licensed nurse in the State of Florida, holding license number RN 1238832 and, therefore, is subject to the jurisdiction of the Department and the Board of Nursing. Ms. Beecher was placed on probation for a period of one year as a result of disciplinary action filed in Department of Professional Regulation Case No. 90740. A term of the probation was that Ms. Beecher obtain and continue in counseling for the term of the probation, and thereafter until discharged. During the probationary period, Ms. Beecher received counseling from Marianne Jones, R.N., L.C.S.W., C.A.P. Ms. Beecher caused Ms. Jones to submit a probation report to the Board of Nursing in August 1990. Ms. Jones indicated that Ms. Beecher was not capable of safely engaging in the practice of nursing because of Ms. Beecher's mental illness and her lack of cooperation with her treatment program. Ms. Beecher appeared at the Board of Nursing meeting on October 12, 1990, at which time the Board members and staff were concerned about her erratic and irrational behavior. Ms. Beecher was examined in or around August and September, 1991 by Dr. Burton Podnos, M.D., a psychiatrist, who opined that Ms. Beecher was schizophrenic and, therefore, that she was not capable of safely engaging in the practice of nursing.
Recommendation Based on the foregoing, the parties have stipulated to the following recommended disposition: that a final order be entered suspending the nursing license of Linda Krasnay Beecher until such time as she is able to demonstrate that she is capable of safely engaging in the practice of nursing, and requiring that she enroll in the Intervention Program for Nurses (IPN) and complete their program for mentally impaired nurses. The final order should also reflect dismissal of the complaint in Case No. 90-7826. DONE and ENTERED this 4th day of March, 1992, in Tallahassee, Florida. MARY W. CLARK Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1992. COPIES FURNISHED: Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Lois Lepp, Esquire Department of Professional Regulation 1940 N Monroe Street Suite 60 Tallahassee, Florida 32399-0792 David Young, Esquire 1227 S. Florida Avenue Rockledge, Florida 32955
