The Issue Whether Petitioner's certificate of registration as a pain management clinic should be revoked pursuant to section 458.3265, Florida Statutes (2010).1/
Findings Of Fact By stipulation the parties agreed to the following: Unique is a Florida for-profit corporation; Unique is not a pain management clinic. However, Unique is registered as a pain management clinic with the Department; and Ronald and Grace Van Der Juijl are not physicians licensed under chapters 458 or 459, Florida Statutes. Unique is, therefore, not fully owned by a physician licensed under chapters 458 or 459, or a group of physicians, each of whom is licensed under chapter 458 or 459. Section 458.309(4), Florida Statutes (2009), reads, in part, as follows: All privately owned pain-management clinics, facilities, or offices, hereinafter referred to as "clinics," which advertise in any medium for any type of pain-management services, or employ a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, must register with the department by January 4, 2010, unless that clinic is licensed as a facility pursuant to chapter 395. On January 5, 2010, Unique, pursuant to section 458.309(4), submitted to the Department an application for pain clinic registration. On March 10, 2010, the Department issued to Unique, pain management clinic license no. PMC 681.4/ On October 1, 2010, approximately nine months after becoming effective, section 458.309(4) was repealed. Also on October 1, 2010, section 458.3265 became effective. Section 458.3265(1) provides, in part, as follows: (d) The department shall deny registration to any clinic that is not fully owned by a physician licensed under this chapter or chapter 459 or a group of physicians, each of whom is licensed under this chapter or chapter 459; or that is not a health care clinic licensed under part X of chapter 400. * * * (f) If the department finds that a pain- management clinic does not meet the requirement of paragraph (d), . . . the department shall revoke the certificate of registration previously issued by the department. As determined by rule, the department may grant an exemption to denying a registration or revoking a previously issued registration if more than 10 years have elapsed since adjudication. As used in this subsection, the term "convicted" includes an adjudication of guilt following a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. (Emphasis supplied.) Unique is not a health care clinic licensed under part X of chapter 400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Health, enter a final order revoking Petitioner, Unique Health Care Orlando's, license to operate as a pain management clinic. DONE AND ENTERED this 8th day of November, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2011.
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 1 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 10:37 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 Alauacte , 2014. Elizabeth Dudak, Secretary th 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 L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge 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.
The Issue By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits (including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A. The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months). Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations. Respondent graduated from CETEC and was granted a diploma in December, 1980. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 Divisionf Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401 The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows: Petitioner's PFOF A. 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5-6. Covered in FOF 5. 7-8. Covered in FOF 11. B. 1-2. Covered in FOF 5. 3-4. Covered in FOF 19. 5. Covered in FOF 9. 6-8. Covered in FOF 10. 9. Rejected as not supported by the record, taken in context. SeeTR 35-36. 10-11. Accepted but unnecessary. Accepted but out of context and not dispositive of any issue at bar. Accepted but unnecessary and not dispositive of any issue at bar. Unnecessary. Unnecessary and not dispositive of any issue at bar. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22. Covered in FOF 4. Respondent's PFOF 1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23. 4. Covered in FOF 3-4. 5-6. Covered in FOF 6. Covered in FOF 6-7. Covered in FOF 6-8. Covered in FOF 9. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC. 11-12. Covered in FOF 10. Covered in FOF 11. Covered in FOF 13. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. 18. Covered in FOF 17. 19. Covered in FOF 18. 22-23. Covered in FOF 19. 24. Covered in substance in FOF 19. 25-27. Cumulative. 28-29. Covered in FOF 19. 30. Covered in Substance in FOF 19. 31. Except as cumulative or subordinate, covered in FOF 19. 32. Covered as a conclusion of law. 33. Covered in FOF 19. 34. Unnecessary and not dispositive of the single count of the Administrative Complaint remaining at issue. 35. Rejected as argument of counsel. 36-39. Covered in FOF 20. 40. Covered in substance in FOF 20. 41-46. Except as subordinate, covered in FOF 21. 47-49. Unnecessary, but see FOF 21. 50-51. Except as subordinate, covered in FOF 21. 52. Unnecessary. 53-56. Covered in FOF 22. 57-58. Unnecessary and subordinate. 59 . Covered in FOF 22. 60. Covered in substance in FOF 19. 61-69. Unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert S. Turk, Esquire Suite 3400, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made to supplement the parties' factual stipulations: Petitioner's Pre-Immigration Activities In Nicaragua Petitioner is a native of Nicaragua. He obtained his medical education at the National University of Nicaragua (hereinafter referred to as the "University"). He graduated from the University in 1961 with a Doctor of Medicine and Surgery degree. Petitioner later received a Bachelor of Arts degree in psychology from Nicaragua's Central American University. Thereafter, he completed law school in Nicaragua; however, because he was an outspoken critic of the Sandinista government, he did not receive his law degree. Petitioner practiced medicine in Nicaragua for more than 26 years before immigrating to the United States for political reasons 3/ on March 10, 1988. His reputation as a physician in Nicaragua was excellent. Moreover, he provided at his "White Cross" (also referred to herein as "Cruz Blanca") clinic in the city of Managua, which he established in 1972, free medical services to those who were unable to pay for such services. He also volunteered his time and services to various organizations such as the Nicaraguan Professional Boxing Association, of which he was at one time the President, and the Nicaraguan national baseball team. Petitioner's Application For Licensure As A Physician Approximately 19 months after immigrating to the United States, Petitioner submitted to the Board an application for licensure as a physician pursuant to Section 458.311(10), Florida Statutes. On the application form, under the heading "Medical Education," Petitioner indicated that he had studied at the University's Leon, Nicaragua campus from April 1, 1952, to January 30, 1953, and at the University's Managua, Nicaragua campus from April 1, 1958, to January 30, 1959. He provided no other information under this heading. Under the heading "Practice/Employment," Petitioner indicated that from January 1, 1962, to October 30, 1972, he had seen "[p]rivate [p]atien[t]s" at his "[o]wn [c]linic" in Managua and that from November 1, 1972, to February 20, 1988, he had been the "Director of Internal and Famil[y] Medicine" of the "White Cross of Nicaragua" in Managua. He provided no other information under this heading. On December 1, 1989, the Board sent Petitioner written notification that his application was incomplete for the following reasons, among others: The World Directory of Medical Schools indicates duration of studies six years with one year being a rotating internship and one year social service before you are awarded the Doctor of Medicine and Surgery and registration with the Ministry of Public Health you may engage in private practice. In the form of a sworn affidavit please explain or answer the following questions regarding your application: It appears your studies only lasted 18 mos. (4-52 to 1-30-53) and (4-1-58 to 1-10-59). It is not apparent you completed the required 1 yr social service. Application indicates you were in medical school from 4-1-58 to 1-1-59 and in residency at General Hospital from 1-1-59 to 12-1-59. Please explain the apparent discrepancy. . . . 7. Account for the following time: 2-2-88 to the present. . . . Petitioner responded by writing the Board a letter. The Board received the letter, as well as the attachments Petitioner sent along with it, on January 6, 1990. Petitioner's letter provided in part as follows: Following your letter of December 1, 1989, here are my answers to the questions made to me in order to complete my Application No. 88, within the framework of the law No. 458.311, "Licensure by examination." SEE ENCLOSED ATTACH[MENT] ONE (1).- Studies: 4-1-52 to 12-31-58. I enclose evidence on intense medical practice; when I graduated there was not Social Service for graduated medicine students, however, in addition to the rotatory practice I have 2 internship years. See enclosed Attach[ments] two (2) and three (3) Residency General Hospital from 1-1-59 to 12-31-59. See Enclosed attach[ments] (1) and (3). . . . 7. Since 2-2-88 I live in Miami without practicing my profession; presently I am doing some research and writing two recently finished books. From Miami I am also managing the medical institution "CRUZ BLANCA," of which I am the Director - see enclosed Certificate-; the latter, together with other data-evidence confirms my medical professional practice since I graduated. -See Enclosed attach[ments] (4) and (3). . . . I hope I have completed all the information requested; I will be waiting to hear from you for any other point th[at] may arise regarding my request. Thanks. Attachment (1) referred to in Petitioner's letter was a written statement by Petitioner in which he stated the following: The Medical Education in Nicaragua was of seven years and one year of practice in the General Hospital. The Medical School had two locations respectively in Leon and Managua. My Medical Education was from April 1, 1952, to Dec. 31, 1958 = seven years. MEDICAL EDUCATION Name of Medical School: Medical School of the National University of Nicaragua: LEON- Nicaragua From: April 1, 1952 To: January 30, 1953 April 1, 1953 To: January 30, 1954 April 1, 1954 To: January 30, 1955 April 1, 1955 To: January 30, 1956 April 1, 1956 To: January 30, 1957 April 1, 1957 To: January 30, 1958 Managua- Nicaragua From: April 1, 1958 To: December 31, 1958 There are two months of vacations : February and March, every year. Leon and Managua Nicaragua are the same University in different localities. My INTERNSHIP: General Hospital of Managua from 1-1-59 to 12-31-59. On January 10, 1990, the Board sent Petitioner written notification that his application was still incomplete. In this written notification, the Board requested, among other things, that Petitioner have his letter, "retyped in the form of a sworn affidavit." Petitioner complied with this request and resubmitted the letter, in affidavit form, to the Board, along with other materials. Among the other materials he sent to the Board was a certificate from the Secretary of the Board of Directors of Cruz Blanca, which provided as follows: The undersigned Secretary of the Board of Directors of the Cruz Blanca Institution of Medical Social Service, established according to the laws of the Republic of Nicaragua, issues these presents to certify that Dr. Leon Cesar Delgadillo was our founder in the year nineteen hundred seventy-two and that he has acted as our Medical Director and Executive President of the Board of Directors since then, being also in charge of the responsibility of Internal Medicine. Dr. Leon Cesar Delgadillo is a well-known and experienced doctor in the Republic of Nicaragua. He attended seven years of academic studies at the National University of Nicaragua and one year as intern at the General Hospital of Managua which was destroyed by a devastating earthquake in nineteen hundred and seventy-two. He then became an intern at the Social Security Hospital for one more year followed by another year of residency at the Psychiatric Hospital of Managua, Nicaragua. At that time the Medical Social Service did not exist, but Dr. Delgadillo who has a great human sensibility has practiced Social Medicine at Cruz Blanca. His License to practice both private and institutionally as well as his diploma are legally registered at the Ministry of Health. Dr. Delgadillo is also author of "La Dieta Feliz" (The Happy Diet) a best seller in Nicaragua and Central America and presently he has finished writing two books which will soon be published "VIDA Y SALUD CON FISIODINAMIA" (LIFE AND HEALTH WITH PHYSIODYNAMICA) and an educational novel of intense drama about AIDS titled "INFIERNO EN LA TIERRA" (HELL ON EARTH). Due to political reasons, he has lived in the United States since February 2, 1988, but from there he directs our Institution and has been busy there, in the USA, with the abovementioned books of which he is the author. His degree of Medicine was signed by the President of the Republic because that was the law and practice at that time. On February 19, 1990, the Board, having determined that Petitioner had "substantially complied with the requirements set forth in Section 458.311(10)(a), Florida Statutes," and that it was "likely that [Petitioner would] be able to fully comply with all the requirements," issued an order granting "conditional certification of the application of [Petitioner] pursuant to Section 458.311(10)(a), Florida Statutes," thereby authorizing Petitioner to enroll in the University of Miami's Comprehensive Medical Review Program, which was designed to prepare foreign medical school graduates to take the FLEX licensure examination. Petitioner subsequently enrolled in and successfully completed the program. In response to a letter from the Board indicating what he needed to do to "fully comply with all of the requirements of Section 458.311(10)(a), Florida Statutes," Petitioner sent the Board a letter, dated March 26, 1990, in which he stated, among other things, the "corre[c]t date [he] left [his] country [was] 3- 10-88." On July 10, 1990, Petitioner sent another letter to the Board. In his letter, he stated, among other things, the following: My date and port of entry into E.U. is Miami, Mar. 10-86 and the same day arrived [in] San Francisco. I am newspaper reporter. (see page 3 Immigration Statement). Petitioner enclosed page 3 of the "Immigration Statement" to which he referred in his letter. On this page of the "Immigration Statement," Petitioner had indicated that he was a "travelling correspondent of the news radio 'El Momemto de Radio Mundial de Nicaragua.'" On July 26, 1990, the Board sent Petitioner a letter advising him that he had to submit the following material in order to complete his application file: In the form of a sworn affidavit please account for your activities from the date [you] entered the United States until the present[. Y]ou[r] application and other supporting documents contain discrepancies regarding the exact date, port of entry and your activities in the United [S]tates. INS verification indicates date of entry of 3/10/86. Your letter of July 10, 1990 is not acceptable. In response to this letter, Petitioner submitted to the Board a sworn affidavit, dated August 2, 1990, in which he stated the following: Since I entered [t]he United States [o]n 03-10-88, I have been working as a foreign journalist for a Nicaraguan news agency. On this date I entered into the United States by the International Airport in Miami, Florida. This information is in the Declaration signed by me on March 28th of 1988 and filed in your office. Petitioner applied to take the December 1990 FLEX examination. He submitted the completed application and a $500.00 examination fee to the Board. In a letter, dated October 19, 1990, accompanying the fee, Petitioner reiterated that he was working as a foreign journalist for a news agency. On November 7, 1990, the Board sent Petitioner a letter which contained the following advisement: Pursuant to the Final Order dated February 19, 1990 the following material is required to complete your application file. This material must be received in this office no later than November 14, 1990. The Office of Naturalization and Immigration verifies your date of entry as March 10, 1986; but you give your date of entry as March 10, 1988. Please have INS submit to this office a verification of your exact date of entry into the United States. Information requested above must be received in this office on or before 11/14/90 or you will not be allowed to take the December 1990 FLEX EXAM. Petitioner timely furnished the Board with documentation from the Immigration and Naturalization Service verifying that he entered the United States on March 10, 1988. On November 21, 1990, the Board, through its Executive Director, sent Petitioner the following letter: This is to advise you that your application to take the Course developed by the University of Miami as directed in Chapter 89-374, Laws of Florida, is now complete. Based on your demonstration of full compliance with the requirements of Section 458.311(10)(a), F.S., as amended by 89-541, Laws of Florida, your application will be presented to the Board of Medicine for full certification for the Course at a meeting of the Board November 30,- December 2, 1990. You will not be required to be in attendance at this meeting. Should you have any questions whatsoever, please do not hesitate to contact this office. Petitioner took and failed the December 1990 FLEX examination. He contested his failing grade in a letter received by the Board on March 20, 1991. In his letter, he stated that he was a "Medical Doctor, Ps[y]chologist and Lawyer of Nicaragua" and he accused the Board of discriminating against him and infringing upon his civil rights. Petitioner's examination challenge was referred by the Board to the Division of Administrative Hearings, but was subsequently returned to the Board with the recommendation that the Board dismiss Petitioner's challenge. Petitioner's Application For Certification As A Physician Assistant On or about June 21, 1991, Petitioner filled out an Examination Application for Certification as a Physician Assistant (hereinafter referred to as the "Application"). He thereafter submitted the Application, along with a $400.00 application fee, to the Board. The Board received the Application and fee on June 24, 1991. On the first page of the Application, Petitioner indicated, among other things, that he had received his Doctor of Medicine and Surgery degree from the University on August 11, 1961. On the second page of the Application, Petitioner indicated that on July 1, 1990, his place of residence was Miami, Florida. He further indicated that he wished to be issued a temporary certificate. In response to the question on page 2 of the Application, "Did you attend a college or university," Petitioner answered "no." In response to the question on page 2 of the Application, "Did you receive a degree other than an M.D., to include undergraduate degree," Petitioner also answered "no." On pages 2 and 10 of the Application, Petitioner listed "all places of residence (where lived) during all periods of medical school" as follows: Leon, Leon Nicaragua from April 1, 1952 to January 30, 1958 Managua, Managua, Nicaragua from April 1, 1958 to Dec. 31, 1958 Miam[i], Florida from Feb. 24, 1990 to Nov. 20, 1990. February 24, 1990, to November 1990, was the period that Petitioner attended the University of Miami's Comprehensive Medical Review Program. Petitioner further indicated on pages 2 and 10 of the Application that had attended "medical school" at the Leon campus of the University from April 1, 1952, to January 30, 1958, at the Managua campus of the University from April 1, 1958, to December 31, 1958, and at the University of Miami School of Medicine from February 24, 1990, to November 20, 1990. On pages 2 and 3 of the application form, applicants were asked to provide information regarding their "Postgraduate Training" and "Practice Employment." They were instructed as follows: Account for all time from date of graduation from medical school to present. Do not leave out any time. Under "Postgraduate Training" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all postgraduate training (Internship, Residency, Fellowship)." Petitioner indicated that he was in an internship program at the General Hospital of Managua from January 1, 1959, to December 31, 1959, a residency program at the Social Security Hospital of Managua from January 1, 1960, to December 31, 1960, and another residency program at the Mental Health Hospital in Managua from January 1, 1961, to December 31, 1961. Under "Practice Employment" applicants were requested to "[l]ist in chronological order from date of graduation to present date, all practice experience and/or employment." Petitioner indicated that from November 1, 1972, to February 20, 1988, he was the "Director of Familiar Medicine" at the "White Cross of Nicaragua" in Managua. He listed no other "practice experience and/or employment." On page 8 of the application form, applicants were asked to list their "clerkship(s)" and "all places of residence (where lived) during clerkship(s)." Petitioner indicated that he lived in Managua from January 1, 1959, to December 31, 1959, while in a University-supervised internship program at the General Hospital of Managua, that he lived in Managua from January 1, 1960, to December 31, 1960, while in a University-supervised residency program at the Social Security Hospital of Managua, that he lived in Managua from January 1, 1961 to December 31, 1961, while in a University-supervised residency program at the Mental Health Hospital, and that he lived in Managua from November 1, 1972, to December 20, 1988, while he was the "Director of Medicine Familiar" at the "White Cro[s]s of Nicaragua." On August 2, 1991, the Board's Physician Assistant Section (hereinafter referred to as the "Section") sent Petitioner a letter advising him that his Application was incomplete because he failed to submit the following: An accounting of your activities for the following period(s) of time: clerkships from 12/61 to 11/72, 2/88 to 12/88, 12/88 to 2/90, page 3 application practice employment 2/88 to present. page 2 application did you attend a college or university you marked NO explain. page 4 application question 8 you marked NO correct and resubmit. Petitioner responded to this letter by submitting to the Section an affidavit dated August 7, 1991, in which he stated the following: Page 2 application; I attend at the Universidad Nacional Autonoma de Nicaragua, UNAN. [University].- Leon and Managua, Nicaragua April 1, 52 to December 31, 58. Also I attend 5 years Universidad Centro- Americana, UCA [Central American University] degree Psichologist. Clerkships: from 12/61 to 11/72 own private medicine. From 2/88, 12/88 to 2/90, 2/88 to present: In E.U.; don't work in medicine. Question 8, page 4 application question: since I live in E.U. from 2/88 to present don't work in Medicine for do not have license of M.D. On August 26, 1991, the Section sent Petitioner a letter advising him that his Application was still incomplete. The letter further provided as follows: In your affidavit of August 7, 1991 (copy attached) you indicated that you attended Universidad Centro-Americana, UCA for 5 years and obtained a degree in Psichologist. Please submit diploma and transcripts and translations of transcripts, notarized as stated above, dates of attendance and where the university is located. Please resubmit pages 8 and 9 (attached) listing only core clerkships while attending medical school at Universidad Nacional Autonoma de Nicaragua UNAN. Be specific with dates, location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. We need one additional acceptable source of documentation of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please account for your activities for the following periods of time, listing in chronological order from date of graduation to present date, including all practice experience and/or employment or unemployment: From February 20, 1988 to present. Petitioner responded by letter dated August 29, 1991. In his letter, Petitioner argued that it was not necessary for him to provide any additional information regarding his psychology degree because such information was "impertinent or irrelevant." He further contended that he had "sufficiently explained" the "other points [in the Section's August 26, 1991] letter (2,3,4)." In addition, he invited the Section, if it wanted more detailed information about his past, to examine the materials in his physician licensure application file (hereinafter referred to as "File No. 88"). The Section followed Petitioner's suggestion and reviewed his File No. 88. Not having received any response to his August 29, 1991, letter, Petitioner, on September 23, 1991, sent the Section another letter complaining about the "harassment and intimidation" to which, according to him, he was being subjected by the Section. The Section, on October 15, 1991, wrote to Petitioner and advised him that he needed to do the following to complete his Application: In your affidavit of August 7, 1991 and in your "declaration" notarized on March 26, 1990, you stated that you had completed a Bachelors degree in Psychology; and stated that you attended Jesuit University in Nicaragua where you "finished the school of law." Please substantiate these statements with the appropriate documentation and dates of attendance. You have submitted a certificate issued December 15, 1989 from the Nicaraguan Board of Pharmacy indicating your registration in their books. Please send a notarized copy of the license and/or certificate required to prescribe drugs in Nicaragua. In your declaration of March 26, 1990, you state that you are enclosing several documents, none of which were enclosed. Among those documents was a "medical file of U.C. Davis (University of California, Davis) Medical Center of Sacremento of March 19, 1988." Please provide all reports of treatment and/or evaluation from the Medical Center of Sacremento to include diagnosis and prognosis. We need one additional source of information of Florida residency on July 1, 1990, notarized as stated above. It must verify residency covering the period of July 1, 1990. Please resubmit pages 8 and 9 (enclosed) listing only core clerkships and rotations while attending medical school at Universidad Autonoma de Nicaragua. Be specific with dates, location of hospital, institution or individual where the clerkships was performed or supervised. List affiliate University or College. You have failed to respond adequately to questions concerning your activities from the time of your graduation from medical school until the present time. On page 3 of the application form (enclosed) please complete the information under "practice experience" as instructed. List all practice experience and/or employment, including month, day and year of practice and/or employment. Do not leave out any period of time. Your application will not be considered complete until you have adequately explained your activities from graduation until the present. You have reported your date of entry into the United States as a Nicaraguan exile as: March 10, 1986; February 6, 1988; February 23, 1987; February 2, 1988 and March 10, 1988, in letters and affidavits prepared by you. Please explain these discrepancies. Also we have received two conflicting statements from the Immigration and Naturalization Service regarding your date of entry as an exile. It will be necessary for you to request an explanation from the Immigration and Naturalization Service to clarify their conflicting documents. Petitioner responded by letter dated October 23, 1991. In his letter, he stated the following: I see you have my file 88 of the Board of Medicine. I am attempting to reconcile your accustomed hostility and for this reason I send you letter Nov. 21/90 of "full compliance from Dorothy Faircloth, Executive Director, Florida Board of Medicine. Please, you think, think, think . . . and you don't contradict and the Board of Medicine and its Executive Director. For politeness I send you "personal documents" and I feel you are intimidateing to me or also You are inciteing to me at to lie. Documents: Letter Florida Board of Medicine 11/21/90 Original FPL's Bill Jul. Aug. -Ju Jul. -May. Jun., 90 Medical File of U.C. Davis . . . Sacramento . . . "PRIVATE" Two Verifications of Information from Migration . . . Below Signed for Richard B. Smith (on Yellow) District Director. - You don't have jurisdiction in this. (Abuse of authority). -Bachelors in Psychology and "finihes the school of law" degree is impertinent and irrelevant to Physician Assistant Section and all this in Nicaragua. -I have only certificate from the Nic. Board of Pharmacy. -Clerkship only General Hospital of Managua, Social Security Hospital, and Mental Health Hospital. After private medicine all time. You are harassing to me, intimidateing and abuseing of my civil rights and I will have to go at the Judge; You are having to me damage. 4/ On November 14, 1991, the Section sent Petitioner a letter advising him that his application was still incomplete and repeating the requests made in numbered paragraphs 1, 5, 6 and 7 of its October 15, 1991, letter to Petitioner. The letter, like the previous letters the Section had sent him, was unsigned. Petitioner responded by letter dated November 18, 1991, in which he stated the following: I have full my file by Physician Assistant and please, I don't want "nobody else" your anonymous letter, without signature and full of bureaucratic harassment. My rights I will debate it in the instance of Law that it concern. At the bottom of the letter, under Petitioner's signature, was a "Postscript," dated November 20, 1991, which read as follows: I send you fotocopy of Immigration and Naturalization service; "fast" you will have original from Immigration by mail. You don't have jurisdiction on matter of Immigration and your hostility is it "abuse of authority" and also is illegal. You infringe my civil rights. "We have to avoid the risorgimento of the Nazism and the Ku Klux Klan (KKK) in all the sectors," this involve: Racialism, Prepotency, irrationality, intolerance, perversion, terrorism, intimidation . . . etc. and it is crime of hate (Law by crime of hate F.S. 1989) The Section next communicated with Petitioner by letter dated December 17, 1991. The letter advised Petitioner that he needed to do the following to complete his application: Translation of medical school diploma, prepared as instructed: The translation of the diploma is a copy and is not notarized as stated above; the translation does not indicate that it was done by a certified translator. Translations must be done by a certified translator and bear his seal or statement of certification. Please provide the translator with a copy of criteria for translation (enclosed). Translations or transcripts, prepared as instructed: The notary did not affix the seal to the translation of the transcripts. The translation is a copy and as such must be notarized as is stated above. On page 2 of the application under Medical Education your dates of attendance at the University of Nicaragua do not agree with your previous application, (exile file #88). PA Application: Med School: 4/1/52-1/30/58 Exile File #88: " " 4/1/52-1/30/53 and 4/1/58-1/30/59 Please clarify these discrepancies in affidavit form. Please resubmit pages 8 and 9 of the application to indicate your core clinical clerkships only. List specific date(s), type of rotation, and name and location of hospital, institution or individual where clerkship was performed or supervised. List affiliate University/College. An accounting of your activities for the following period(s) of time: 12/31/61 to 11/1/72. List all practice experience and/or employment, do not leave out any period of time. The Aids certificate submitted does not indicate AMA approved category I. Please submit proof of AMA Category I approved training, or request in affidavit form a 6 month extension in order to obtain AMA approved Category I course. Petitioner responded by affidavit dated December 31, 1991, to which he appended various documents, including a revised version of pages 8 and 9 of his Application as requested in numbered paragraph 4 of the Section's December 17, 1991, letter. In the affidavit, Petitioner stated the following: Translation of medical school diploma, prepared as instructed: notarized, the translation was done by a certified translator and it has or bear his seal and statement of certification. There are in Exile file No. 88 and my file for Certification as a Physician Assistant in each one, respective translation of the diploma "full criteria of law for translation." Translations was prepared by a Certified translator of Professional Traslating Services, Inc.- Suite 540, Courthouse Tower Building.- 44 West Flaguer Street.- Miami, Florida 33130 Phone: (305) 371-7887 I ask for please, send to me fotocopy of each one, file No. 88 and PA application, in order to delimitate responsibility. Translations of transcripts, prepared as instructed: The notary affixed the seal to the translation of the transcripts and it was notarized. Please, send to me fotocopy of each one, file No. 88 and PA application to delimitate responsibility. The discrepancies of dates under Medical Education of attendance at the University of Nicaragua was clarified on letter notarized January 19, 1990 in reply letter of December 1, 1989 by William R. Flynn, Senior Clerk, Department of Professional Regulation Board of Medicine, paragraph No. 1 file No. 88 (attached fotocopy) and affidavit of the 7th day of August, 1991 in reply your letter of the august 2, 1991 paragraph No. 1, that have your OK on the left margin (to see attached fotocopy). Confirmation Date: Med. School, April 1, 1952 to December 31, 1958.- Application Physician Assistant Section. These discrepancies are result of mistake in the transcription and dates and numbers at the remote time and distance and it was in opportune moment clarified. But it is more important to appoint that the application for certification as a Physician Assistant of the 21 day of June, 1991 page 2 and 10 they are with its correct dates and that your letter 12/17/91 paragraph 3 are free Objections I am incorporating as pages 3 and 4 in this affidavit the corresponding pages 8 and 9 of the application to indicate my core clinical clerkships; really this question was formulate with confused and ambiguous terms. My application is concrete and certain, page "8" application for certification as Physician Assistant. From 12/31/61 to 11/1/72 own private medicine; See affidavit of the 7th day of August, 1991, attached fotocopy. The AIDS certificate of Miami Dade Community Dade, Medical Center Campus for Allied Health Professions. Attached program; You will receive direct information of the Miami-Dade Community College Med. Center Campus. Petitioner, after receiving the Section's December 17, 1991, letter, also sent a letter to Vytas Urba, an assistant general counsel with the Department of Professional Regulation. In his letter, he accused the Section of acting with "madness and hatred" and claimed that he was the victim of a "conspiracy" to violate his civil rights that had resulted in damages of $99,999.99. By affidavit dated January 14, 1992, Petitioner requested that the Section give him a "6 month extension in order to obtain an AMA, AIDS certificate approved Category I course." Among the documents appended to the affidavit was a translation of his "Medical School Diploma." On January 28, 1992, the Section sent Petitioner a letter, which indicated that "the following [was] necessary to complete [his] application:" While you have stated on several occasions that you have not practiced medicine since arriving in the United States, you have not responded to questions regarding your activity or employment. It is not enough to merely state that you are not practicing medicine, you must account for your activities from 3/10/88 until the present. You have previously stated that you are a correspondent for Nicaraguan newspaper and radio station but have not substantiated this employment with any information. This will be the THIRD REQUEST for you to account for your activities from 3/10/88 until the present. Please complete the enclosed page 3 of the application as instructed. You must identify, by address and location the names of all employers, or state in affidavit form that you have not been employed in any way since 3/10/88. You have previously stated that in the period from 12/61 to 11/72 that you had a private practice in Managua. You have not identified what type of practice this was. What specialty, or field of medicine did you practice during this time. Your affidavit of 7 August 1991 states that you attended for 5 years the Universidad Centro-Americana, and that you received a degree of "Psichologist" from this school. Please provide the location of this school and the dates of your attendance. Your previous response that this information is "irrelevant" is not acceptable. You have voluntarily submitted this affidavit, which conflicts with other statements that you have made regarding your activities and you must verify the location of the school and dates of attendance. The translation of your diploma recently submitted is returned; this document is obviously a copy. Any copy must be notarized as is stated above. Your previous application does not contain a copy of this translation that is notarized as required. Please resubmit a translation of your diploma that is either an original document or properly notarized. The translation of your transcripts was also a copy that was not notarized however there was an acceptable copy in your previous application. With regard to HIV/AIDS training your request for a six month extension is accepted. The instructions provided with the application clearly state that this training must be AMA Category I approved training. This information should be requested of the provider prior to taking any HIV/AIDS course. You may enquire of Miami Dade Community College as to whether they are authorized to provide AMA Category I training. If they can provide you with verification of this course being AMA Category I approved, the training will be accepted upon receipt of this verification. Petitioner responded by affidavit dated February 10, 1992, in which he stated the following: There are in file No. 88 letter January 19, 90 . . . . notarized DOCUMENTS with my activities from 3/10/88 until the present, question 1 and the period from 12/61 to 11/72 my private practice in Managua, question 2 (attached); also affidavit 22th day of August, 1990 and notarized letter January 19, 1990 (attached fotocopy) over-marked on green. Next page I ratify and complement question number 1 and I state that in the period from 12/61 to 11/72 I practiced Familiar Medicine, question number 2. I attended for 5 years at the Universidad Centro-Americana, - from 1969 to 1972, this University in Managua, Nicaragua, C.A. (Re: question number 3). - Psichology School. I resubmit (THIRD TIME) my diploma notarized as required; please send me two previous documents submitted. I requested at the Florida Board of Medicine, Physician Assistant Section through Cecilia Abrahansem (Director) . . . to eliminate the unlawful monopoly with HIV/AIDS AMA Category I course. I am foreign journalist for "El Momento" Nicaraguan news agency, Radioperiodico El Momento, RADIO MUNDIAL, Managua, Nicaragua. This activity until the present. (From 1/30/88 to present) Among the documents appended to the affidavit was a revised version of page 3 of Petitioner's Application, which reflected, in addition to his previously disclosed employment with the "White Cross" as its "Director of Familiar Medicine" from November 11, 1972, to February 20, 1998, his employment as a "Foreign Journalist" with "El Momemto Nicaraguan news agency" from "1/30/88 To: the present." By letter dated June 4, 1992, Petitioner was directed to appear before the Physician Assistant Committee of the Board (hereinafter referred to as the "Committee") at its June 12, 1992, meeting. Petitioner appeared before the Committee at its June 12, 1992, meeting as directed. Inasmuch as he has substantial difficulty understanding, and communicating effectively in, English, the Committee provided Petitioner with the services of an interpreter. Members of the Committee asked Petitioner various questions. The questions were asked in English and translated to Spanish, Petitioner's native language, by the interpreter. Petitioner responded in Spanish. The interpreter translated his responses to English for the benefit of the Committee. Asked when he had arrived in the United States, Petitioner responded, "March 10, 1988." He was then asked when he had last practiced medicine. His initial response was, "in Managua, Nicaragua." After the question was repeated, however, he answered, "before this time." In response to the question of whether he had had any exposure to the practice of medicine since his arrival in the United States, Petitioner stated, "never here in the States." Petitioner told the Committee, in response to their inquiry regarding the matter, that since his arrival in the United States he had been "a writer and a reporter." Petitioner responded in the affirmative when asked if his only exposure to medicine since he had been in the United States was the intensive review course he had taken at the University of Miami from February to November, 1990. Petitioner was asked whether he had gone to law school. After responding in the affirmative, he was asked when he had gone to law school. Petitioner answered that he was unable to give an "exact date," but it had been "about five years before he [had] left the country." He added that he had gone to law school at night. Asked whether he had received a law degree, Petitioner responded that he "couldn't" because it "wasn't possible . . . politically." At no time in responding to the Committee's questions or during any other phase of the application process did Petitioner knowingly provide false information or withhold pertinent information with the intent to mislead or deceive those evaluating his Application about his qualifications to be certified as a physician assistant. Any inaccuracies or omissions in the information he provided was the product of, not an intentional effort to defraud, but rather either inadvertence, carelessness, faulty or limited recall, misunderstanding, limited English language comprehension and communication skills, 5/ or a good faith belief that the information in question was not germane. After questioning Petitioner, the Committee voted to deny Petitioner's Application. On August 15, 1992, the Board issued a written order denying the Application on the following grounds: Your failure to submit a properly completed application. You have demonstrated a lack of good moral character based upon your testimony and inconsistent and evasive answers. The Board has also determined that based upon review of your application and documentation, and due to the extended length of time since you last worked in the field of medicine, and because of the length of time since any significant medical education or training has taken place, you have not established that you are currently able to practice as a physician assistant with reasonable skill and safety to the public. Petitioner's Other Activities Since His Arrival in the U.S. As he attempted to make clear during the application process, Petitioner has not engaged in the practice of medicine in the United States since his arrival in this country. He has studied medicine on his own, as well as performed medical- related research in connection with several books he has written, however. He has also done volunteer work for the Red Cross. Petitioner has continued to direct and administer from the United States the operations of the "White Cross" clinic. Recently, he has started to again visit the clinic on a fairly regular basis and treat patients. The first of these post-March 10, 1988, visits occurred sometime in 1992. Since 1988, Petitioner has not received any compensation for the work he has performed for the clinic. In addition to the foregoing activities, Petitioner has worked as a journalist since coming to the United States as he indicated on the revised version of page 3 of his Application. Petitioner has not lost the ability he demonstrated throughout his many years of practice in Nicaragua before immigrating to the United States to treat patients in a safe and effective manner. He is currently able to practice as a physician assistant with reasonable skill and safety to the public, notwithstanding that he may have had some difficulty in following the instructions he was given (in English) by the Section during the application process and providing the Section with the information he desired. 6/ Furthermore, Petitioner is of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order certifying that Petitioner is eligible to take the examination for certification as a physician assistant pursuant to Section 458.347(7)(b), Florida Statutes, and granting him temporary certification pursuant to Section 458.347(7)(b)2., Florida Statutes, pending the results of the examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of June, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1993.
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.
Findings Of Fact Petitioner applied for licensure by examination in Florida as a physician. He appeared before the Board of Medical Examiners on May 31, 1985, at which time his application for licensure was to be considered. Based upon statements made by him under oath at that meeting, the Board of Medical Examiners denied his application for licensure as a physician by examination stating in its order entered July 31, 1985, that the sole reason for that denial was that "Documentation submitted in support of your application for licensure indicates that you are currently working as a volunteer at Borinquen Health Care Center in Miami and, as such, indicates that you are practicing medicine without a license." The transcript from that Board meeting was admitted in evidence. Petitioner's testimony before the Board and at the final hearing in this cause, although somewhat confusing due to Petitioner's incomplete grasp of the English language, was consistent and clear. Petitioner received his medical education in India and subsequent medical training in England and in Canada. He came to Miami in 1984. In order to become acquainted with the American system of medicine and in order to keep current his medical skills and knowledge, Petitioner obtained employment at the Borinquen Health Care Center. During the year or two that Petitioner worked there, Petitioner interviewed and examined patients and made tentative diagnoses under the direct control and supervision of licensed physicians. Additionally, he made notations on patient's charts and wrote prescriptions as specifically directed by the licensed physician; the licensed physician; however; then signed the charts and the prescription forms. Petitioner did not examine, treat, diagnose; or operate on any patient on his own. No employee or patient of Borinquen Health Care Center testified to the contrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner's application for licensure as a physician by examination. DONE and RECOMMENDED this 24th day of June, 1986; at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1986. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Kaleem Ahmed 520 N.E. 83rd Street, No. 8 Miami; Florida 33138 M. Catherine Lannon Assistant Attorney General The Capitol, LL04 Tallahassee, Florida 32301 Pred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee, Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician. Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985. COPIES FURNISHED: K. C. Collette, Esq. HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401 Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301 ================================================================ =
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 Respondent pursuant to Chapter 408, Part IJ, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the Respondent the attached Administrative Complaint. (Ex. 1) 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 health care clinic license is voluntarily surrendered effective as of September 1, 2012. 6. The Administrative Complaint is withdrawn. 7. The Respondent is responsible for providing any refunds that may be due to any clients. 8. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner 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. 9. 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 Filed June 11, 2013 8:37 AM Division of Administrative Hearings affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this ££ day of pre , 2013. Elizabeth Dudek, Secretary Agency for Heath 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 come et this Final Orderwas served on the below-named persons by the method designated on this SO ay of Jn , 2013. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit Thomas Jones, Unit Manager (Electronic Mail) Licensure Unit Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Arlene Mayo-Davis, Field Office Manager Medicaid Accounts Receivable Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley David Glickman, D.O. Medicaid Contract Management 8159 South Savannah Circle Agency for Health Care Administration Davie, Florida 33328 (Electronic Mail) (U.S. Mail) Warren J. Bird, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (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.
The Issue The following issues of fact were considered: Did the Respondent aid, assist, procure, or advise an unlicensed person to practice medicine? Did the Respondent delegate professional responsibilities to persons when he knew or had reason to know that said persons were not qualified by licensure to perform them? Did the Respondent presign prescription forms? Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Albert P. Oteiza, is licensed to practice medicine and surgery in the State of Florida and has been so licensed at all times relating to the charges in the Administrative Complaint. The Respondent was president and director of the Union Latina Association, Inc. (the Association), located at 1313 Southwest First Street, Miami, Florida. The Respondent was paid by the Association, which provided medical services to patients who were members of the Association. The Respondent practiced at Clinical Union Latina (the Clinic), located at 1313 Southwest First Street, Miami, Florida, and was the medical director of the Clinic. The Respondent was not an officer or director of the Clinic. The president of the Clinic was Rigoberto Garcia, and the business manager was Christian Carmona. Florencio Sanchez-Lopez was employed as a physician's assistant at the Clinic by Christian Carmona, who assigned Sanchez-Lopez's duties. Sanchez-Lopez was not a licensed physician and was not a certified physician's assistant. Sanchez-Lopez admitted seeing and treating patients at the Clinic. Sanchez- Lopez saw those patients who were in serious condition in the presence of the Respondent. Those patients who were not in serious condition, Sanchez-Lopez saw without the Respondent being present, and Sanchez-Lopez prescribed treatment and medications for these patients. Sanchez-Lopez examined and prescribed medications and treatment for Ralph Nunez, an investigator for the Board of Medical Examiners, in the manner Sanchez-Lopez had admitted to examining and prescribing for other patients. Valerio Matta was employed as a physician's assistant at the Clinic by Carmona, who assigned Matta's general duties. Matta was not a licensed physician or a certified physician's assistant. Matta saw patients at the Clinic, examining them and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. Matta also admitted that he had performed minor surgery on patients, but only when the Respondent was present in the Clinic. Carlos Manuel Rodriguez-Murgia was employed as a physician's assistant at the Clinic by Carmona, who assigned Rodriguez-Murgia his general duties. Rodriguez-Murgia was not a licensed physician or certified physician's assistant. Rodriguez- Murgia saw patients at the Clinic, examining and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. The acts performed by Sanchez-Lopez, Matta, and Rodriguez-Murgia all constituted the practice of medicine. However, these acts did not exceed the acts which could have been performed by a physician's assistant. The Respondent was aware or should have been aware that Sanchez-Lopez, Matta, and Rodriguez-Murgia were engaged in seeing patients at the Clinic and performing acts which constituted the practice of medicine. Carmona was deceased at the time of the hearing. Garcia, president of the Clinic, outlined Carmona's duties. Carmona was responsible for having Sanchez-Lopez, Matta, and Rodriguez-Murgia certified as physician's assistants. All three men confirmed that Carmona represented to them they would be licensed and they were "legal" to perform their duties. Sanchez-Lopez, Matta, and Rodriguez-Murgia could not swear that it was the Respondent's signature on the prescriptions they used or that they had seen the Respondent sign the prescriptions. There were other licensed physicians who worked at the Clinic.
Recommendation Having found the Respondent guilty of three counts of violating Section 458.331(1)(w), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Board of Medical Examiners suspend the license of the Respondent, Albert P. Oteiza, for a period of 12 months and assess a civil penalty against him of 3,000. DONE and RECOMMENDED this 17th day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Blas E. Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 83-122 ALBERT P. OTEIZA, M.D., License No. 20879 Respondent. /
Findings Of Fact The following facts were stipulated by the parties and required no proof at hearing: Petitioner, University Hospital, Ltd., is a Florida limited partnership and is the licensee of University Hospital and University Pavilion Hospital, both located on North University Drive, Tamarac, Florida. Petitioner Sebastian Hospital, Inc., is a Florida corporation, and is the licensee of Sebastian Hospital and SandyPines Hospital. Both hospitals are located on separate premises. Petitioner Haines City HMA, Inc., is a Florida corporation, and is the licensee of Heart of Florida Hospital, Inc. and Palmview Hospital. Both hospitals are located on separate premises. Petitioners timely filed their respective Petitions to determine the invalidity of the proposed rules at issue. Petitioners would be regulated by the proposed rules and are substantially affected parties with standing to challenge the proposed rules at issue. No proof is necessary to prove the standing of these Petitioners. Prior Rule 59C-1.004(2)(i) (the "License Consolidation Rule") required CON application and approval for license consolidations pursuant to Section 395.003, F.S. It was declared invalid in University Hospital, Ltd., et al. v. AHCA, 16 F.A.L.R. 3312 (final order dated July 22, 1994). [This decision is referenced throughout as University Hospital.] Prior to invalidation of the License Consolidation Rule, six CON applicants sought issuance of a single, or consolidated, license to replace former separate licenses held by the same licensee for facilities located on separate premises. Each of these six prior applicants involved a general acute care hospital and a specialty psychiatric hospital. Those applicants resulted in an issuance of CON numbers 7303, 6954, 7712, 7311, 7167, and 7047. Each of those six applications was ulti- mately approved in the form of a single license. When the single licenses were issued, no restrictions were placed on the licensees regarding eligibility for Medicaid reimbursement. As reflected in the respective SAARS, a significant result of approval of each of these applications was that the formerly separately licensed psychiatric hospital became eligible for Medicaid reimbursement for treatment of Medicaid patients. All of these prior applicants had licenses issued and became eligible for Medicaid. Such Medicaid reimbursement was not available to the separately licensed psychiatric facilities prior to issuance of a single, or consolidated, license. Aside from the rules under challenge, there has been no change in pertinent state statutes or rules subsequent to the final order in University Hospital Ltd., v. AHCA 16 F.A.L.R. 3312. After invalidation of the Consolidated License Rule, AHCA's interpretation is that issuance of a single, or consolidated, license for a general acute care hospital and a psychiatric hospital does not result in Medicaid eligibility. Petitioners did not participate in any of the rule workshops conducted on June 22, July 7, and November 2, 1994 or the public hearing held on February 13, 1995. Petitioners did not send in any written comments, questions, or materials, or request an economic impact statement. A holding of the Final Order in University Hospital, was that a Certificate of Need was not required prior to the issuance of a single consol- idated license for multiple premises. University Hospital, 16 F.A.L.R. at 3321. The Agency has no discretion regarding rule- making pursuant to Section 120.535. (Joint Prehearing Stipulation, filed 3/14/95) Approximately eighteen months ago and well before the University Hospital decision, the Agency for Health Care Administration (AHCA) commenced a major rewrite of the hospital license rules that had been promulgated by its predecessor agency, the Department of Health and Rehabilitative Services (HRS). After a series of public workshops, the revisions were noticed in the January 20, 1995, Florida Administrative Weekly. These substantial revisions of rule chapter 59A-3 comprise about fifty pages of the Florida Administrative Weekly. The challenged portions comprise only several paragraphs of the revisions. The challenged portions of the proposed rules are: 59A-3.203 Licensure Procedure. (2) All persons requesting licensure for the operation of a hospital under the provisions of Chapter 395, F.S., shall make application to the Agency, on forms provided, AHCA Form 3130- 8003-January 1995, and AHCA Form 3130-8001-January 1995, and shall receive a regular or provisional license prior to the acceptance of patients for care or treatment. * * * (e) An application for the addition of beds or off-site outpatient facilities to a hospital's license must include: A valid certificate of need or letter of exemption as required by ss. 488.041 - 408.045, F.S., and Approval from the Agency's Office of Plans and Construction. * * * (i) A single license will be issued to a licensee for facilities located on separate premises, upon request of the applicant. The license will specifically state the location of the facilities, their services, and the licensed beds available on each separate premises. Such a license shall also specifically identify the general or specialty classification of hospitals located on separate premises. (6) Each license shall specifically state the name of the licensed operator of the hospital, the class of hospital, and the name and location of the hospital. Any beds in the hospital which are regulated under the certificate of need program, as specified in Chapter 59C-1, F.A.C., shall be listed, including the number of licensed beds by type. The license for hospitals having facilities on more than one premises shall specifically state the location of each facility, their general or specialty classification, their services, and the licensed beds available on each separate premises. * * * Specific Authority 395.003, 395.004, 455.239, F.S. Law Implemented, 395.001, 395.003, 395.004, 395.1005, 408.035, 408.036, 455.239, F.S. History New. (emphasis added) Prior to the decision in the University Hospital case in July 1994, the proposed revisions did not include the requirement that the license for facilities on separate premises identify separately the general or specialty classification of each. That provision was added by the agency because it concluded that when it could no longer require a CON for "consolidated" licenses, then general acute care beds and free-standing psychiatric beds could not be "consolidated" on a single license. It is uncontroverted that the substantial effect of the requirement that each facility retain its prior classification is that a facility classified as a class III (specialty) facility is not eligible for Medicaid reimbursement. The agency agrees that proposed rule is based on, and is compelled by section 395.003(2)(d), F.S., which provides as follows: (d) The Agency shall, at the request of a licensee, issue a single license to a licensee for facilities located on separate premises. Such a license shall specifically state the location of the facilities, the services, and the licensed beds available on each separate premises. If a licensee requests a single license, the licensee shall designate which facility or office is responsible for receipt of information, payment of fees, service of process, and all other activities necessary for the Agency to carry out the provision of this part. (Emphasis supplied). It is immediately obvious from a comparison of the text of the proposed rule and the text of the law implemented that the law does not require that the license state the general or specialty classification for the separate facilities. This distinction was not lost on the agency since it included in its legislative package for the 1995 legislative session a proposed amendment to section 395.003(2)(d), F.S. that would cure the inconsistency by adding the proposed rule language to the statute. (Petitioner's exhibit number 16, p. 25) There is a statute which restricts Medicaid reimbursement for treatment in free-standing psychiatric hospitals. The agency argues that the proposed rules give effect to that statute, section 409.905(5), F.S., which provides, in pertinent part: . . . A licensed hospital maintained primarily for the care and treatment of patients having mental disorders or mental diseases is not eligible to participate in the hospital inpatient portion of the Medicaid program except as provided in federal law. . . . (emphasis supplied). Reliance on Section 409.905(5) is misplaced, however, because it is nowhere cited in the proposed rules as authority or law implemented. Moreover, evidence presented at hearing describes federal policy that when two hospitals are consolidated under one license and have a total capacity that is less than 50 percent psychiatric in nature, the premises are both eligible for Medicaid reimbursement, even though one remains primarily for the treatment of mental disorders. (Petitioners' exhibits number 20-22) The federal policy on Medicaid reimbursement was in effect in 1993, prior to the University Hospital decision and prior to the current version of the proposed rules. Section 409.905(5), F.S. has been in effect since 1991, before the six consolidated licenses referenced in paragraph 1, above, were issued. Section 395.003(2)(d), F.S. has been in effect in its current form at all times material. Nothing in the law has changed to support the agency's contention that, after the University Hospital decision, it can no longer issue a single license with a single license classification for separate premises. No evidence nor specific argument was presented with regard to the alleged invalidity of proposed rule 59A-3.203(2)(e), which on its face relates to the addition of beds or an outpatient facility to a hospital's license. Issues related to that portion of the proposed rule are not the issues invoked in this proceeding with regard to Petitioner's facilities. (See Petitioners' exhibit 26, p. 71, deposition of Tanya Williams)
