Findings Of Fact At all times material, Respondent was a Florida-licensed practical nurse (LPN), license No. 30177-1. On February 9, 1988, Respondent married Hampton Alonzo Corry. Shortly after their marriage, Mr. Corry began using crack cocaine and later sold crack cocaine. As Mr. Corry's addiction to crack cocaine grew, Respondent's life with him became fraught with physical and mental abuse. Respondent's employers and coworkers knew of this abuse. Respondent was employed as an LPN and as office nurse for Indravaden P. Shah, M.D., by Florida Health Care Center, from June 26, 1986 to November 8, 1988. After their marriage, Mr. Corry usually dropped his wife off in her employer's parking lot, but nothing prohibited his visiting her in Dr. Shah's office suite. Respondent's most recent evaluation by William Burrows, R. N., Director of Nursing, dated June 8, 1988 (R-2) before Respondent's termination on November 8, 1988, contained only "excellent" and "good" ratings and a complimentary commentary. At that time, Mr. Burrows also recommended Respondent for a salary increase. In August or September 1988, both Respondent and her husband were arrested on criminal concealed weapon charges arising out of his abuse of her. Respondent entered into a pretrial intervention contract and the prosecution contracted to "nolle prosequi" the charges against her, provided she successfully completed her contract and probation, which she did (R Although the record is unclear whether it was due to the concealed weapon charge against him or for some other reason, Respondent's testimony that her husband remained in jail until November 2, 1988 is unrefuted, as is her testimony that on November 7, 1988, after a weekend of abuse, he locked her out of her house and she had to await a locksmith to let her back into the house before she could go to work that day. Her testimony as to the services of a locksmith on that day is supported by Exhibit R-3, the locksmith's November 7, 1988 bill. Kathleen McMullen Deaton was a licensed LPN at all times material and had received her R.N. license prior to formal hearing. When Respondent did not report for work on time on November 7, 1988, Mrs. Deaton filled in for her as Dr. Shah's office nurse. Respondent reported for work at approximately 11:00 a.m. Mrs. Deaton described Respondent upon Respondent's late arrival at work on November 7, 1988 as, "[she] didn't have anything to say . . . just started with the clinic . . . her appearance was unkempt. . . ." (TR-80) Thereafter, Mrs. Deaton observed the Respondent from an adjoining office suite for approximately three hours and testified that during that period, Respondent exhibited a staggered gait, eyes half-open, slurred speech, and uncoordinated movements. (TR-81) Dr. Shah observed Respondent for the same three hours, at much closer range, and testified that, ". . . she was a little drowsy and her eyes were red, so I asked her, 'Margaret do you feel all right?' and she said, 'No I feel sick.' I said, 'Well, if you feel sick, you probably should go home '" (TR-50) Mr. Burrows was absent on November 7, and was unable to personally observe Respondent that day, but he related that over an unspecified period of time very close to her termination, he "considered the fact that she may be impaired at work . . . slow to respond, thick speech, dilated pupils." (TR-69) On November 8, 1988, after speculative comments to him from unspecified persons concerning Respondent's appearance, behavior, and possible impairment on the preceding day, Mr. Burrows fired Respondent because he ". . . felt [she] had problems that were insurmountable and it was going to cause her problems on the job" (TR-69-70) and that "she was not capable of performing at Florida Health Care." (TR-74) Nonetheless, on November 16, 1988 he wrote her an unequivocal letter of recommendation as an LPN. (R-1) According to Mr. Burrows, Respondent's appearance, work habits, and professionalism deteriorated after her marriage to Mr. Corry, but he was unable to give a specific example of deteriorated work performance and was unaware of when their marriage had taken place. He stated that Respondent had been tardy once or twice and he was aware of her appearing for work in a battered condition once or twice. As explanation of why his June 8, 1988 evaluation of Respondent had been so good, Mr. Burrows stated that Respondent had not gone downhill until after that date. It is significant that neither Dr. Shah, M.D., nor Mrs. Deaton, R.N., nor Mr. Burrows, R.N., testified that it was his/her professional opinion within reasonable medical probability that Respondent ever was actually impaired on the job by drug use or for any other reason or that whatever was wrong with her made her unable to function in the capacity of a nurse any more than anyone else who goes home rather than work when she is sick. Neither did any witness render any expert opinion to the effect that Petitioner's job performance at any time constituted a departure from, or failure to conform to, the minimal standards of acceptable and prevailing nursing practice or that she was unable to practice nursing with reasonable skill and safety. At all times material, Captain Francis G. Monaco was Assistant Chief of Police and Superintendent of the Criminal Investigation Division of the Daytona Beach Shores Police Department. In July of 1988, the Daytona Beach Shores Police Department had begun an investigation of possible narcotics activity involving Mr. Corry. Confidential informants, one of whom was Peggy Sue Thomas, Mr. Corry's drug dealing partner, lover, and fellow-cocaine addict, provided information to Captain Monaco that Mr. Corry was acting as a dealer in crack cocaine and that Respondent was supplying him with valium tablets for sale by way of prescriptions taken from a doctor's office at Florida Health Care. The reliability of Respondent's rival and of the other confidential informants was not demonstrated on this record because none of them testified at formal hearing. On November 21, 1988, three weeks after her termination by Florida Health Care and while Respondent was not employed as a nurse, Respondent drove her husband, Hampton Corry, to a beachside apartment on Daytona's south side where Captain Monaco's undercover force had arranged with a confidential informant to institute a "buy" of one ounce of crack cocaine from Mr. Corry. Mr. Corry entered the apartment while Respondent remained in the car. At no time did Respondent enter the apartment. When Mr. Corry exited the apartment, Respondent drove him away in the car. Some time later, Respondent and Mr. Corry returned in the same car, the Respondent still driving. Again, Respondent remained in the car while Mr. Corry entered the apartment and drove him away when he came out again. At no time could Respondent see what was going on in the apartment. None of the informants or undercover law enforcement officers ever made "buys" of any contraband substance from Respondent. Subsequent to Mr. Corry's second return from the beachside apartment to the car driven by Respondent, their vehicle was stopped at an intersection. Mr. Corry was arrested for dealing or trafficking in crack cocaine. Mr. Corry also allegedly received money on his first trip to the apartment and returned with a lump of crack cocaine on his second trip to the apartment, but none of the officers or informants who were inside the apartment testified at formal hearing, and these allegations of Petitioner rely on a police report spanning activitites of November 17-21, 1988 (P admitted without objection, this police report is not credible. In the first place, it does not meet all the requirements of a business records exception to the hearsay rule. Secondly, even if it did, there is nothing to ensure the accuracy of any of the statements attributed therein to non-police, particularly those attributed to Mr. Corry and the confidential informants, about Respondent's drug involvement. Moreover, the reliability of the statements of the confidential informants was never established on the record as required by law. The reliability of Mr. Corry's lover and fellow-drug user/salesman, Peggy Sue Thomas, who was also a so-called confidential informant, is suspect in any case since she was a rival of Respondent for Mr. Corry's affections. Finally, this police report was assembled by a single police officer who did not testify, from notes made by as many as six other officers concerning their actions, conversations, and observations over the four days in question. The other officers apparently never reviewed the final draft of the report. They also did not testify at formal hearing. Not being credible, the report is not probative. An inventory search of the Respondent's purse when her husband was arrested revealed a blank prescription signed by Indravaden P. Shah, M.D., (P-4) and a prescription bottle for valium for Hampton Corry which had been filled at the New Smyrna Beach Winn Dixie Pharmacy. (P-5) Discovery of these items in her possession resulted in her arrest. As Dr. Shah's office nurse, Respondent had previously had access to blank Florida Health Care prescription pads and to Dr. Shah's DEA number which is necessary for prescribing narcotics. Dr. Shah's name and DEA number were also stamped on prescription forms imprinted with the Florida Health Care information. Dr. Shah's standard practice was to fill out prescription forms and sign them, as needed. In order to be filled by a pharmacist, a written prescription must carry the patient's name, all information about the drug and dosage prescribed, and the physician's name and signature. If narcotics are involved, it also must include the physician's DEA number. Prescriptions may also be "called in" over the telephone to a pharmacist by the physician or by a nurse upon the physician's authorization. In such a situation, the pharmacist takes down the information given him orally over the phone and writes it on a pharmacy prescription form; for this, the physician need not sign that pharmacy prescription form. Respondent was also familiar with the process for "calling in" Dr. Shah's prescriptions to local pharmacies. At night, Dr. Shah's pads of prescription forms pre-stamped with his name and DEA number were kept in a locked cabinet at Florida Health Care to which Dr. Shah, Respondent, and a number of other Florida Health Care employees had keys. However, prescription pads were never locked up during the day, and during the day prescription pads were also kept in desk drawers and left out on countertops where anyone who came into Dr. Shah's office suite would have access either to take one page or a pad of pages or where anyone could simply copy the DEA number from a prescription pad. Registered Pharmacist William Whatley testified that the prescription bottle for Hampton Corry which was found in Respondent's possession (P-5) corresponded to a New Smyrna Beach Winn Dixie prescription form which had been filled in by his partner (P-3) and which pharmacy prescription form Captain Monaco's subordinates had obtained after-the-fact from Mr. Whatley; Exhibit P was never in Respondent's possession at any time. Mr. Whatley's partner both pencilled-in the Winn Dixie prescription form (P-3) and "filled" [placed the ordered drug, in this case, valium, in its corresponding bottle (P-5)] in response to an oral prescription telephoned to the New Smyrna Beach Winn Dixie Pharmacy for Hampton Corry allegedly on behalf of Dr. Shah on November 12, 1988, four days after Respondent had been terminated from her employment. The information taken by the pharmacist over the phone covered both the relatively benign drug predisone and the narcotic drug, valium. The empty valium bottle (P-5) was found in Respondent's purse. The pharmacist had placed the predisone tablets in a separately-labeled bottle. No predisone bottle was found on Respondent. Anyone who had access to Exhibit P-4 (Dr. Shah's stamped, signed blank prescription form which was found in Respondent's purse on November 21, 1988) could have provided his DEA number to the Winn Dixie pharmacist on November 12, 1988, but so could anyone who had ever copied his DEA number off one of Dr. Shah's pads, or anyone who had received a prescription form from him as a patient, or anyone who had overheard the Respondent legitimately call in Dr. Shah's DEA number over the telephone during her employment. One might also expect that after two years' employment with Dr. Shah, Respondent would not need Exhibit P-4 as reference material to call in Dr. Shah's DEA number. Nonetheless, the pharmacist filled in no DEA number for Dr. Shah when he filled in the rest of Exhibit P-3 on November 12, 1988. Although this omission could have been inadvertent on the pharmacist's part even though the caller supplied the DEA number, the absence of Dr. Shah's DEA number from Exhibit P-3 also permits of the equally strong inference that the caller failed to provide the DEA number and the pharmacist failed to ask for it, despite the pharmacy's standard operating procedure to the contrary. However, one would reasonably expect that the Respondent, if she had been the caller, would have ensured that Dr. Shah's DEA number was given to the pharmacist, since this would enhance the impression that the call was genuine. While not persuasive by itself, the fact that Dr. Shah's DEA number does not appear on Exhibit P-3 at least suggests that Respondent did not call in the information for Exhibits P-3 and P-5. There is no evidence of who picked up the predisone and valium bottles from the New Smyrna Beach Winn Dixie Pharmacy. Dr. Shah has never treated a patient by the name of Hampton Corry and has never authorized directly or indirectly a prescription for valium or any other drug for Hampton Corry. Dr. Shah has never authorized the Respondent or anyone else to have in his/her possession a signed blank prescription form. Dr. Shah speculated that Exhibit P-4, the blank Florida Health Care prescription form stamped with his name and DEA number which was found in Respondent's purse on November 21, 1988, had been previously signed by him while Respondent still worked for him with the intent of issuing it to one of his regular patients and then the signed form had been accidentally left by him on the counter outside his examining room when that patient informed him she already had enough medicine. The Respondent and anyone else who entered Dr. Shah's office suite that day had had access to Exhibit P-4. Respondent testified that she had found out in March 1988 that her husband was using drugs and had been trying to get him to stop ever since, but that only much closer to the November 21 arrest date did she find out he was also selling them. She denied ever assisting him in the sale of drugs and denied that she ever personally used drugs. Respondent further testified credibly and without refutation that she had Exhibits P-4 (Dr. Shah's signed, blank prescription bearing his DEA number) and P-5 (the empty valium bottle resulting from Exhibit P-3) in her purse on November 21 because she had taken them away from her husband that very day (TR- 112-114), that she never went inside the beachside apartment because she suspected drugs would be used or exchanged (TR-90), and that she removed herself from the car for a period of time while her husband went to west Daytona between their two appearances at the beachside apartment, also because Respondent felt her husband was picking up drugs in west Daytona. (TR-108-110) The foregoing testimony evidences Respondent's desire to avoid drugs, not promote them. All criminal charges against Respondent arising out of the circumstances of November 21, 1988 have been dismissed/ "nolle prosequi" due to insufficient evidence (R-4). Respondent is in the process of divorcing Mr. Corry and now works two jobs in order to pay off the debts he ran up in her name during the course of their marriage. Respondent has lost her car and her home as a result of their marital debts. Ms. Martin confirmed Respondent's testimony as to her hard work and current distressed economic situation. A current non-nursing employer submitted a written character reference on Respondent's behalf which was admitted without objection and which further supports a finding that Respondent is currently working two jobs, is trustworthy, and is not currently impaired in any fashion.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing all charges against Respondent. RECOMMENDED this 14th day of January, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4558 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-4, 8-10, 12-14 Accepted. 5-7 Accepted that Respondent remained in the car. The rest is rejected for the reasons set forth in footnote 1. 11 Rejected as not supported by the evidence. Exhibit P-3 (not in Respondent's purse) and P-5 (in Respondent's purse) correspond. See FOF 16-17. 15-16 Accepted as modified to more accurately reflect the record. Respondent's PFOF: None submitted. COPIES FURNISHED: Albert Peacock, Esquire, and Tracey S. Hartman, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Margaret B. Corry Post Office Box 290364 Port Orange, Florida 32129 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s home health agency is VOLUNTARILY RELINQUISHED to the Agency for Health Care Administration no later than March 3, 2012. 6. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 7. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 1 Filed February 21, 2012 1:03 PM Division of Administrative Hearings 8. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this _/ Wi day of Aha — 2012. Elizabeth Dudek, Secretary Agency fo Ith Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct gpy of this Final Order was served on the below-named persons by the method designated on this 77’*"day of beby tues 4 , 2012. Richards k Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Anne Menard, Unit Manager ] Facilities Intake Unit Home Care Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Andrea M. Lang, Senior Attorney Arlene Mayo-Davis, Field Office Manager Office of the General Counsel Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Jay Adams, Esquire Medicaid Accounts Receivable Broad and Cassel Agency for Health Care Administration P.O. Box 11300 (Electronic Mail) Tallahassee, Florida 32302 (U.S. Mail) Shawn McCauley Stuart M. Lerner, Administrative Law Judge Medicaid Contract Management Division of Administrative Hearings Agency for Health Care Administration (Electronic Mail) (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds ! The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7 day of Alauacey , 2014. Elizabeth Duddk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this t? ay of feLyruc cys , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Suzanne Suarez Hurley, Esq. Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Corinne Porcher, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, FL. 32308 (U.S. Mail) Lynne Quimby-Pennock Administrative Law Judge Brandia Presha, Owner/Administrator Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Philip Forelli is a registered real estate salesman. Forelli showed Henry and Rose Aquinas a house owned by the Rogers located across the street from Forelli's residence, after having the Aquinas referred to him by a mutual friend and neighbor. The Aquinas were interested in purchasing this home and selling their own home. The Aquinas desired to sell their home first before purchasing a new home. Forelli testified that he first had presented a blank MLS contract for their signatures, having made notes regarding the listing, so that the secretary could prepare the MLS papers before the weekend. However, that while this was being typed, the Aquinas called him and presented their offer to purchase, which he had typed. He then took both contracts to the Aquinas, delivering the previously signed MLS contract, and obtaining their signatures on the contract for purchase and deposit receipt for $500. The conflict arose because Henry Aquinas thought that the offer to purchase was contingent upon sale of his home, whereas Forelli stated that he had explained several times that such a contingent contract to purchase was not acceptable. The Aquinas also stated that they signed the contract for purchase in blank. Henry Aquinas and Rose Aquinas were unable to identify at hearing the contract for purchase as being the contract which they signed blank, although they identified their signatures. Henry Aquinas identified the listing contract as the contract which he signed in blank. The contract for purchase has no reference to any contingency provision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the charges against Philip Forelli be dropped. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Philip Forelli Percent Triple A. Realty, Inc. 6217 Margate Boulevard Margate, Florida
The Issue The Board filed a ten count complaint in this matter. The central issue is whether Dr. Horstmann billed Medicaid for office visits for children who he did not see and who, in fact, did not exist. The Board of Medicine contends that Dr. Horstmann's conduct violated Section 458.331(1)(i), Florida Statutes, by making or filing a report the licensee knew to be false, violated Sections 817.234 and 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician, and that his conduct violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when that trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. The Board also contends that by pleading no contest to a criminal charge of Medicaid fraud, Dr. Horstmann is subject to discipline.
Findings Of Fact Dr. Horstmann is a 63 year old Cuban-born medical doctor. He had been licensed to practice medicine and had been doing so in Cuba for 35 years. He was permitted to leave Cuba in 1979. He was licensed to practice medicine in the State of Florida on February 14, 1983. At the time of the investigation which gave rise to these charges he had been licensed to practice medicine in Florida for 4 months. In early 1983, the Auditor General's Office of the State of Florida, Medicaid Fraud Unit, investigated certain pharmacists which computer audits showed to have excessive Medicaid charges. Dr. Horstmann was not a target of this investigation, which was headed by Detective John Nulty. The Mariano Gonzalez pharmacy was targeted. Dr. Horstmann knew Mariano Gonzalez since childhood. He had given Gonzalez business cards, asking Gonzalez to refer patients to him with allergy- related problems who did not have a doctor, as Dr. Horstmann wished to concentrate on allergy-related health problems. Those business cards were available at the pharmacy. During the investigation of the Mariano Gonzalez pharmacy, agent Vivian Perez entered the pharmacy and acted as a Medicaid recipient using the name Vivian Toledo. At the Mariano Gonzalez pharmacy on June 5, 1983, she was advised to see Dr. Horstmann and was given a Horstmann business card with the pharmacy stamp on the back of it. Apparently, the Mariano Gonzalez pharmacy was engaged in a scheme to defraud Medicaid. It allowed Medicaid recipients to present scripts for prescriptions which were to be paid by Medicaid, and to purchase merchandise rather than prescription drugs or medicine for an amount equal to what would have been charged for the medication. In the course of her investigation, agent Perez went to Dr. Horstmann's office on June 7, 1983. She presented Dr. Horstmann's secretary with a Medicaid card issued to her as part of the investigation bearing the name Vivian Toledo, and the names of the three fictitious children, Julio, Roger and Rafael Toledo. Dr. Horstmann did not examine agent Perez or any of the fictitious children, but as a result of the visit he gave agent Perez prescriptions for her and the three children. Agent Perez took these prescriptions to the Mariano Gonzalez pharmacy and used them to purchase non-pharmaceutical items. These prescriptions were not signed by Dr. Horstmann, but by Dr. Rodriguez-Cuellar, with whom Dr. Horstmann worked. Dr. Horstmann did not sign the prescriptions because, although he was a licensed physician, he had not yet received a Medicaid provider number of his own. Agent Perez again visited Dr. Horstmann on July 12, 1983. He did not examine her or the fictitious children but gave agent Perez additional prescriptions for herself and the children, which he signed. They were used to purchase non- pharmaceutical items at the Mariano Gonzalez pharmacy. Agent Perez visited Dr. Horstmann on a second occasion in July and in August 1983. Each time she received prescriptions for herself and the fictitious children which were used to purchase non-pharmaceutical items at the Mariano Gonzalez pharmacy. Dr. Horstmann prepared medical charts for each of the fictitious children, which were introduced into evidence, indicating that these children had been examined by him. Dr. Horstmann signed the Medicaid health insurance claim forms for the children dated July 9, 12, 20 and 27; and August 17 and 23. Medicaid was billed a total of $100.00 for Julio Toledo, $70.00 for Roger Toledo and $90.00 Rafael Toledo based on these forms. Dr. Horstmann understood when he wrote on the chart that he had seen the children that a bill would be prepared and sent to Medicaid. He signed all of the reimbursement forms. He received payment from Medicaid on the claims he submitted. Dr. Horstmann was charged with Medicaid fraud and entered a plea of no contest. A certified copy of the order placing him on probation was offered for identification but not received in evidence. After the certified copy of the probation order was obtained, an order was entered by the Circuit Court for the 11th Judicial Circuit sealing the records of Dr. Horstmann's conviction.
Recommendation Based upon the violations of the Medical Practice Act which Dr. Horstmann committed, including filing false Medicaid reports and billing Medicaid for treating fictitious children, as well as making deceptive, untrue and fraudulent representations in the practice of medicine, it is RECOMMENDED: That Dr. Horstmann's license be suspended for a period of six (6) months. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1753 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner (Treating the paragraphs of the findings of fact as if they had been serially numbered.) Covered in Findings of Fact 2 and 4. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 11 and 12. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 3. Sentence 2 covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary. Sentence 1 covered in Finding of Fact 5. Sentences 2 and 3 rejected as unnecessary. Covered in Finding of Fact 6. Rejected as unnecessary Covered in Finding of Fact 1. Covered in Finding of Fact 4. Generally rejected as a recitation of testimony rather than findings of fact. Rejected because whether Dr. Horstmann was familiar with Medicaid procedures is not relevant. It is clear that he understood that he submitted bills for visits which never occurred. Rejected because Dr. Horstmann's beliefs as to agent Perez' financial condition in no way justifies submitting fraudulent medicaid reimbursement requests. Covered in Finding of Fact 11. Rejected because I accepted the testimony of agent Perez that she did not provide the symptoms to Dr. Horstmann that are found in the charts for the fictitious children. Accepted in the Conclusions of Law because there was no evidence concerning bills submitted by Dr. Rodriguez- Cuellar being reimbursed by Medicaid. Covered in Finding of Fact 9. Covered in Finding of Fact 11. Covered in Finding of Fact 12. The amount received was greater than $45.00. To the extent necessary, covered in Finding of Fact 10. Covered in Findings of Fact 10 and 11. Rejected because I find that Dr. Horstmann knew that he was billing Medicare for visits which never occurred. This was not merely the result of an error by a receptionist. Rejected as irrelevant. Covered in Finding of Fact 12. Rejected as a recitation of testimony, not a finding of fact. COPIES FURNISHED: Joel S. Fass, Esquire COLODNY, FASS & TALENFELO, P.A. 626 N.W. 124th Street North Miami, Florida 33161 John W. Thornton, Jr., Esquire THORNTON & ROTHMAN, P.A. 2860 Southeast Financial Center Miami, Florida 33131 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent's sign violates Florida Law as alleged in the Administrative Complaint and, if so, what further action is required.
Findings Of Fact At all times material hereto, Respondent was the owner of an unpermitted sign erected within 25 feet of the intersection of Krome Avenue and State Road 997 in Dade County, Florida. State Road 997 is within the State Highway System and is a federally aided primary highway and the property on which the sign is located is zoned "GU Intrem," an agricultural zoning classification of Dade County, Florida. On March 21, 1989, the sign in question was posted with a violation sticker indicating that the sign was subject to removal by the Department after thirty days from the date of the posted notice. Also, a written violation notice dated March 21, 1989, was sent to Respondent. Prior to the hearing, the face of the sign was removed by Respondent and the structure supporting the sign was taken down by Petitioner. Respondent admitted that she did not have a permit for the sign and that one was required. The sign at issue did not qualify for a sign permit nor for any exemption from the requirement therefor. Further, the property on which the sign was located was in an ineligible zoning classification. The removal of Respondent's sign was appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a Final Order providing that the subject sign was in violation of the permitting requirements of Chapter 479, Florida Statutes, and that the removal of the subject sign was proper. DONE and ENTERED this 7th day of August, 1989, in Tallahassee, Florida. JANE C. HAYMAN 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 7th day of August, 1989. APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-2697T Petitioner's proposed findings of fact are addressed as follows: Addressed, in part, in paragraph 1. Addressed in paragraph 2; in part, subordinate to the result reached. Addressed in conclusions of law. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Rosa Thomas Thomas' Promises Farms 18990 S.W. 152nd Street Miami, Florida 33187 Mr. Kaye N. Henderson Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thomas H. Bateman, III Genera1 Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
