The Issue The issue in the case is whether the application of Petitioner, Cody Pileski, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 27, 2004, by Respondent, Jim Horne, acting in his capacity as the Commissioner of Education.
Findings Of Fact Petitioner graduated from the University of Wisconsin in 1997. In 1999, he received a bachelor of science degree in education from Kennesaw State University in Atlanta. In September 1999, Petitioner went to work as an English teacher at Chattahoochee High School in Alpharetta, Georgia. In addition to his teaching duties, Petitioner became involved as a faculty advisor in a variety of extracurricular activities at the school, including acting as visual coordinator for the marching band and sponsor of the "Miss CHS" beauty pageant. By all accounts, Petitioner was a popular and hard- working teacher. He arrived at school early, around 6:45 a.m., and commonly stayed until 7 or 8 p.m. His classroom was a popular gathering place for students before classes, during lunch periods, and after school. The classroom was in a trailer that Petitioner shared with another teacher. Students at the school widely believed that Petitioner was gay, though Petitioner testified that he is not. During the 2001-2002 school year, Petitioner taught English to C.T., a male student in the 11th grade. Petitioner allowed C.T. to "hang out" in his classroom after lunch. They would discuss matters of concern to C.T. Petitioner testified that C.T. openly admitted to him that he smoked and sold marijuana. Petitioner stated that many of their conversations revolved around the subject of drug use, with Petitioner attempting to convince C.T. to cease his illicit activities. C.T.'s allegations involved a conversation that he had with Petitioner in early April 2002. C.T. testified that he told Petitioner that he needed to get a job to earn some money. Petitioner told C.T. that he had an opportunity for C.T. to make some quick money. Petitioner would pay C.T. to meet him at some location away from school and allow Petitioner to photograph him. Petitioner would pay C.T. $30.00 for "regular pictures," and $50.00 if C.T. would do "something more risqué," which Petitioner explained meant "get naked." Petitioner told C.T. that he couldn't tell anyone else about this offer, because Petitioner would get in trouble. C.T. testified that he tried to treat Petitioner's offer as a joke, but that "it did kind of weird [sic] me out that he had asked me to get naked." C.T. told Petitioner that he did not want to do it and that was the end of the matter. C.T. told a few of his friends about what had happened, but did not report Petitioner to the school's administration. In late May 2002, a teacher overheard C.T. talking about the matter to his friends. After fully discussing the situation with C.T., the teacher reported the matter to the school principal, who in turn reported the matter to the Fulton County Board of Education, which commenced an investigation. Petitioner denied offering C.T. money to pose for photographs. Petitioner admitted that he had a conversation with C.T. regarding posing for photographs, but that his purpose was to "shock" C.T. into understanding the immorality of selling drugs for money. They were discussing C.T.'s selling of marijuana. C.T. contended that it was "easy money" and, as such, was preferable to working at a legitimate job. Petitioner noticed the photograph of a lingerie model pasted to C.T.'s notebook and asked C.T. how much he made from selling a bag of marijuana. C.T. said, "fifty bucks." Petitioner asked C.T. what he would do if someone offered him the same amount to pose for photographs "in your underwear or worse." C.T. said he would take the money. Petitioner then realized his "shock" tactic was not working, and he dropped the subject of selling drugs in his conversations with C.T. Petitioner asserted that C.T. told his story to school authorities in revenge for Petitioner's embarrassing C.T. by calling him a "druggie" in front of his class. Petitioner based this assertion on the fact that the conversation in question occurred in early April 2002, but that C.T. did not make his allegations until mid-May 2002, only a few days after Petitioner called C.T. a "druggie." P.C. was a junior at Chattahoochee High School during the 2001-2002 school year. He did not take classes from Petitioner, but as the drum major for the school's marching band, P.C. had frequent contact with Petitioner. P.C. also worked on the school newspaper. P.C. testified that on Saturday, March 16, 2002, he went to the school to drop off his drum major application for the next school year. While there, he stopped by Petitioner's trailer, where Petitioner and some members of the band's color guard were working on preparations for the school beauty pageant. P.C. talked with Petitioner and the color guard members for a few minutes, then left to go to the school newspaper's office. Petitioner walked out of the trailer with P.C. and told him that he might have a job opportunity for him. Petitioner asked P.C. how old he was. P.C. told Petitioner that he was 16 years old, and Petitioner said that was too young. P.C. was interested in a job. He told Petitioner that he would be 17 years old in June and asked what the job entailed. Petitioner began by telling P.C. that he could not tell his parents. Petitioner told P.C. that he was starting a photography business with a grant he had recently obtained and that he was looking for models. A potential model had to be "very comfortable with [his] body" because some of the photographs would be "very abstract." P.C. asked whether "abstract" meant "nude." Petitioner answered in the affirmative. P.C. told Petitioner that his suggestion was disgusting and probably illegal. Petitioner replied that he had checked into the legalities and that what he proposed was legal in Georgia. P.C. again declined the offer. Petitioner said that he thought P.C. might like to make $75.00 "for a quick 15 minutes of just standing there." P.C. again said, "no" and walked away from Petitioner. Thereafter, P.C. avoided interaction with Petitioner when possible. P.C. told friends about the conversation, but was embarrassed to bring the matter to school authorities. By late May 2002, C.T.'s allegations were under investigation by the Fulton County Board of Education, but were still being treated as confidential. Nonetheless, rumors were circulating around the school regarding allegations against Petitioner. P.C. heard the rumors, though he had no idea who the accuser was. On May 28, 2002, P.C. went to the band room to pick up a costume and ran into Frederick Chang, the band director. They spoke about Petitioner. Mr. Chang told P.C. that a student had made "bogus charges" against Petitioner, but declined to discuss the details. P.C. testified that he had "a feeling," and asked Mr. Chang whether the accusations had anything to do with photography. Mr. Chang said they did, and P.C. told Mr. Chang about his incident with Petitioner in March. Mr. Chang cautioned P.C. that he needed to be sure that Petitioner meant to proposition him before he jeopardized Petitioner's career with his allegations. Mr. Chang had spent a lot of time with P.C. and had noted that P.C. did not always "get it" when someone was joking with him. Mr. Chang was not convinced that Petitioner had done anything inappropriate. Petitioner testified that he was joking with P.C. and denied offering him money in any serious way. Petitioner testified that he and some color guard members were working on pageant preparations in his classroom on that Saturday when P.C. walked in wearing pajama pants, in violation of the school dress code. The girls in the room began making fun of P.C., who was there to ask Petitioner for his key to the newspaper room. Petitioner gave P.C. the key, and P.C. left the room. Petitioner and the girls in the color guard continued to joke about P.C. The photographers for the beauty pageant were coming in, and the girls joked that they could get P.C. to pose for a picture in his pajamas. In the midst of all this joking, Petitioner decided to take some of the pageant cash they had been counting to his car and lock it up there for safe keeping. As he left the classroom, Petitioner ran into P.C., who was coming out of the newspaper office. Petitioner testified that he continued the joke that the girls had started. He asked P.C. if he wanted to do some modeling. P.C. was confused and asked Petitioner what he meant. Petitioner asked if he would consider modeling in his underwear or pajamas. P.C. said that he wasn't "into that," but also asked what was in it for him. Petitioner was holding the pageant money in his hand and told P.C. he could make "50 bucks." P.C. said, "no, that's all right," and that was the end of the conversation. W.H. was a freshman at Chattahoochee High School during the 2001-2002 school year. W.H. did not have a class with Petitioner, but he knew Petitioner because he played trumpet in the marching band. W.H. would "hang out" in Petitioner's classroom early in the morning, because it "was a good social place," and Petitioner was "easy to talk to." W.H. testified that he was sitting in Petitioner's classroom very early one morning in November or December 2001. No other students had arrived. Petitioner casually started talking about a photography or modeling business that he had with a friend. Petitioner asked W.H. if he would be interested in modeling in his underwear at Petitioner's apartment for $50.00 per session. Petitioner also asked W.H. not to tell anyone else about his business. W.H. did not respond, and the matter was dropped. W.H. did not think the incident merited reporting until a mutual friend told him about P.C.'s encounter with Petitioner. The friend was unsure of what to do, because she believed that Petitioner was a good teacher and a friend, but P.C. was her best friend and she wanted to support him. At that point, W.H. told the friend that Petitioner had approached him in a similar manner. W.H. testified that he knew P.C. because they were both in the band, but that they were not friends. Shortly after the conversation with his friend, W.H. was contacted by and gave a statement to the Fulton County Board of Education's investigator. W.H. was not sure who told the investigator about him. Petitioner testified that he was attempting to help another teacher start a "Mr. CHS" pageant, a male counterpart to the very popular female beauty pageant that Petitioner sponsored. The female pageant was run by a professional modeling agency, with professional photographers and a "Miss Photogenic" prize in each of various judging categories. Petitioner proposed that the male pageant would look more legitimate if it, too, had a photographic aspect. He further proposed that more boys would participate in the pageant if cash prizes were offered for the best photos in various categories. Petitioner testified that W.H. must have misconstrued his attempt to get W.H. to participate in the contest and possibly win a $50.00 cash prize for his photograph. Petitioner denied saying or implying anything inappropriate in his conversations with W.H. Petitioner resigned his position at Chattahoochee High School during the summer of 2002. The Fulton County Board of Education's investigator completed his investigation of the allegations and made his report. The Board found probable cause to believe that Petitioner asked the students to pose for sexually explicit photographs. On December 18, 2002, Petitioner submitted a Voluntary Surrender of his Georgia teaching certificate. On January 8, 2003, the GPSC entered a Final Order adopting the findings of fact and conclusions of law in the Voluntary Surrender, and revoking Petitioner's Georgia teaching certificate. The findings of fact in the Voluntary Surrender expressly stated that Petitioner denied the allegations made against him. Under the terms of the Voluntary Surrender, Petitioner will be eligible to apply for a new certificate or reinstatement on January 9, 2006, or three years after the effective date of the Voluntary Surrender. Petitioner testified that once the allegations became public, he was embarrassed and humiliated. He felt that he had no choice but to resign his teaching position at Chattahoochee High School. Petitioner became physically ill during the investigation. His physician prescribed an anti-depressant, and Petitioner accidentally took an overdose. Petitioner was represented by counsel in his dealings with the GPSC, but, in retrospect, did not believe that the lawyer sufficiently explained the full implications of a voluntary surrender of his teaching certificate. Petitioner contends that his mental state at that time did not allow him to make clear decisions about his career. Petitioner introduced the testimony of several character witnesses, fellow teachers, and administrators who spoke highly of his dedication to the teaching profession and his abilities in the classroom. These witnesses disbelieved the accusations, though they had no personal knowledge of the events in question. Even his accusers hesitated to lodge complaints against Petitioner because of their overall respect and affection for him. Nothing in the record suggests there is any question as to Petitioner's skill and competence as a teacher. Nonetheless, the weight of the evidence leads to a finding that Petitioner approached three male students3/ and asked if he could take photographs of them in a state of partial or total nudity and that he offered them money to pose for the photographs. None of the three boys was a particular friend of either of the others, making it unlikely that they conspired to invent their remarkably similar stories. Further, none of the three boys appeared eager to volunteer his story to the school authorities or to press a case against Petitioner. All three spoke highly of Petitioner, save for the "weird" experience of being propositioned by him. Petitioner's version of these events was, at best, unconvincing. In the case of C.T., Petitioner claimed to be attempting a form of "shock" therapy. In the case of P.C., Petitioner claimed he was joking. In the case of W.H., Petitioner claimed that the boy simply misunderstood Petitioner's efforts to promote the "Mr. CHS" pageant. Petitioner would have it that in each of these disparate situations, he innocently raised the question of the boy posing for photographs. By his own admission, Petitioner mentioned posing "in your underwear" to two of the boys. Despite the innocence of Petitioner's intentions, each boy somehow came away from his encounter believing that Petitioner had offered him money to pose for nude or semi-nude photographs and that Petitioner had urged him not to tell anyone about the offer. Petitioner's testimony was not credible. Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to ask students to pose for nude photographs. That wrong is compounded when the teacher instructs the students to conceal the fact that he asked them to pose for the photographs, thus encouraging the children in his charge to behave dishonestly. Petitioner's pattern of behavior with these boys, however anomalous it appears in the context of his entire career, makes him an unsuitable candidate for a teaching certificate. The conduct in which Petitioner engaged occurred on school grounds during the 2001-2002 school year. His conduct directly involved the students in his care. Thus, the conduct established by the facts of this case is recent and bears directly on Petitioner's fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality or an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re-application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 4th day of August, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2005.
Findings Of Fact Based on the evidence received at the formal hearing, I make the following findings of fact. The Respondent, Ahmed M. Elmariah, M.D., is a licensed physician in the State of Florida, having been issued license number ME0027974. The Respondent's last known street address is 215 Pine Ridge Drive, Panama City, Florida 32405. During calendar year 1978, the Respondent was a practicing orthopedic physician in Lakeland, Florida. During calendar year 1978 he had staff privileges at Lakeland General Hospital in Lakeland, Florida, and, pursuant to those staff privileges, admitted patients and performed surgery at Lakeland General Hospitals. By letter dated July 24, 1978, from Luther A. Youngs, III, M.D., President of the Attending Staff at Lakeland General Hospital, the Respondent was notified as follows: This is to inform you that a hearing will be held before the Executive Committee of the Attending Staff of Lakeland General Hospital at 7:00 p.m. on Wednesday, August 2, 1978, in the hospital Board Room, to determine whether disciplinary action should be taken against you on the basis of the following charges: [Here followed four paragraphs of charges.] These charges are serious and may result in suspension or revocation of your probational privileges in Orthopedic Surgery. A regularly scheduled meeting of the entire Medical Attending Staff was held on October 17, 1978. An item on the agenda for that meeting was a proposal that the Respondent's hospital privileges be terminated. Shortly before the commencement of that meeting, the Respondent delivered a letter addressed to Luther A. Youngs, III, M.D., which letter stated. "I hereby resign from membership of the medical attending staff at Lakeland General Hospital as of today Tuesday October 17, 1988". Thereafter the Respondent's resignation was accepted by the Governing Board of Lakeland General Hospital. Subsequent to the Respondent's resignation from Lakeland General Hospital, on or about June 6, 1979, the Respondent applied to Lake Seminole Hospital in Seminole, Florida, for, staff privileges. As part of the application process at Lake Seminole Hospital, the Respondent was required to fill out an application form. Among the questions on the application form was the following: "Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed?" The question was followed by a "yes" box and a "no" box. The Respondent answered the above-quoted question by placing a typed "x" in the "no" box. When the Respondent submitted his 1979 application to Lake Seminole Hospital, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries. Thereafter, on or about January 25, 1984, the Respondent applied for appointment to the medical staff at Humana Hospital Northside in St. Petersburg, Florida. As part of the application process at Humana Hospital Northside, the Respondent was required to fill out an application form. Among the questions on the form were the following: Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed? Have you ever been denied membership or renewal thereof, or been subject to disciplinary action in any medical organization? The foregoing questions (along with some others) were followed by a "yes" box and a "no" box. The Respondent did not indicate "yes" or "no" in response to either of the questions quoted immediately above on his initial application to Humana Hospital Northside. Instead, he left both of these questions unanswered. The Respondent was subsequently notified by Humana Hospital Northside that the two questions last quoted above were unanswered on the initial application form and that those questions must be answered in order for the Respondent's application to be processed. Along with that notification, Humana Hospital Northside also provided the Respondent with another blank application form. The Respondent thereafter furnished to Humana Hospital Northside an application form which was blank, except for a signature at the end and the following typed information: On the first page of the application form were the words "Addendum to Original Application Dated 1/26/84," followed by the name "Ahmed M. Elmariah, M.D." On the third page of the application there was an "x" in each of the "no" boxes corresponding to the following four questions: Has your license to practice medicine in any jurisdiction ever been limited, suspended or revoked? Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed? Have you ever been denied membership or renewal thereof, or been subject to disciplinary action in any medical organization? Has your narcotic or dangerous drug certificate ever been suspended or revoked? When the Respondent furnished the above-described addendum to his application, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries. On or about January 26, 1984, the Respondent made a second application for medical staff privileges at Lake Seminole Hospital. Again the Respondent was required to file an application form. The application form included the following questions under Section 16: F. Have your privileges or Staff Membership at any hospital ever been denied, suspended, diminished, revoked, not renewed, or otherwise acted against? H. Have you ever been denied membership or renewal thereof, or been subject to disciplinary action, in any medical organization or by any licensing agency of any state or country? The foregoing questions (along with some others) were followed by a "yes" box and a "no" box. The Respondent did not indicate "yes" or "no" in response to either of the questions quoted immediately above on his initial 1984 application form submitted to Lake Seminole Hospital. Instead, he left both of those questions unanswered. The Respondent was subsequently notified by Lake Seminole Hospital that the two questions last quoted above were unanswered on the initial 1984 application form and that those questions had to be answered in order for the Respondent's application to be processed. Along with that notification, Lake Seminole Hospital returned Respondent's initial 1984 application form so that he could complete it. Shortly thereafter the Respondent returned the initial 1984 application form to Lake Seminole Hospital, where it was received on February 15, 1984. When the Respondent returned the application form on February 15, 1984, there was a typed "x" in each of the two "no" boxes corresponding to the two questions last quoted above. When the Respondent returned his 1984 application to Lake Seminole Hospital on February 15, 1984, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medicine enter a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 16th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-4527 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings Proposed by Petitioner Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as irrelevant or as subordinate, unnecessary details. Paragraph 4: Rejected as irrelevant and as not established by clear and convincing evidence. (It should be noted that the Amended Administrative Complaint does not allege any negligent acts by the Respondent.) Paragraph 5: Accepted in substance, with some additional findings. Paragraph 6: Accepted in substance with certain unnecessary or irrelevant details omitted. Paragraph 7: Rejected as irrelevant and as not fully supported by clear and convincing evidence. Paragraphs 8 and 9: Accepted. Paragraph 10: This paragraph is accepted with the exception of the portions described immediately hereafter. In the penultimate sentence, everything after the second comma is rejected as unnecessarily repetitious. The last sentence is rejected as not being fully in accord with the greater weight of the evidence. Paragraph 11: Accepted. Paragraph 12: First sentence rejected as subordinate and unnecessary details. Most of last three lines rejected as repetitious. The remainder of this paragraph is accepted. Paragraph 13: First five lines accepted. The remainder of this paragraph is rejected as in part irrelevant, in part not supported by persuasive competent substantial evidence, and in part not fully in accord with the greater weight of the evidence. Findings Proposed by Respondent (None) COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Ahmed M. Elmariah, M.D. Post Office Box 16473 Panama City, Florida 32406-1473 Dorothy Faircloth, Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Should Petitioner suspend or revoke, restrict the practice, impose an administrative fine, reprimand or place on probation the Florida Certificates as Paramedics and/or Emergency Medical Technicians (EMTs) held by Respondents, based upon alleged violations of Sections 401.27(12) and 401.411(1)(a), (f) and (g), Florida Statutes (2000), as well as Florida Administrative Code Rule 64E-2.009(1)(b) (2000)?
Findings Of Fact Factual Admissions by Respondent Box Respondent, Steven R. Box, possesses Florida paramedic license/certificate number 200933. Respondent was issued Florida paramedic license/ certificate number 200933 on February 6, 2001. Respondent possesses Florida emergency medical technician license/certificate number 86759. Respondent was issued Florida emergency medical technician license/certificate number 86759 on October 18, 2000. Respondent's current mailing address is 308 Heron Lane, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. William Bates, Steven B. Thomas, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. The document was (then) returned to Respondent. Time to review the document existed after it was returned. Respondent failed the National Registry Exam that he took on December 13, 2000. Respondent was notified by mail that he failed the December 13, 2000, National Registry of EMTs paramedic examination in January 2001. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified by mail that he failed the February 23, 2001, National Registry Exam in March 2001. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on January 26, 2001. Factual Admissions by Respondent Bates Respondent, William Bates, possesses Florida paramedic license/certificate number 201154. Respondent was issued Florida paramedic license/ certificate number 201154 on May 8, 2001. Respondent possesses Florida emergency medical technician license/certificate number 40414. Respondent's current mailing address is 76 Toby Lane, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. Steven B. Thomas, Stephen R. Box, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the State of Georgia at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry of EMTs Exam that he took on February 23, 2001. Respondent was notified that he failed National Registry Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on April 27, 2001. Factual Admissions by Respondent Williams Respondent, Matthew Williams, possesses Florida paramedic license/certificate number 201152. Respondent was issued Florida paramedic license/ certificate number 201152 on April 10, 2001. Respondent possesses Florida emergency medical technician license/certificate number 80942. Respondent's current mailing address is 24701 Highway 301 North, Lawtey, Florida 32058. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. Steven Thomas, Steven R. Box, and William Bates attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified that he failed the National Registry Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on March 30, 2001. Factual Admissions by Respondent Thomas Respondent, Steven Thomas, possesses Florida paramedic license/certificate number 201150. Respondent was issued Florida paramedic license/ certificate number 201150 on April 10, 2001. Respondent possesses Florida emergency medical technician license/certificate number 72189. Respondent's current mailing address is 575 South Waukeenah Street, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. William Bates, Steven R. Box, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified that he failed the National Registry of Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on March 30, 2001. Facts Admitted by Petitioner Paramedic instructor Mike Taylor solicited Robert Vick to sign said applications. Respondents completed the paramedic education program given at Southwest Georgia Technical College. Additional Facts The Florida Bureau of Emergency Medical Services never approved the program provided by Thomas Technical Institute, or Southwest Georgia Technical College in Thomasville, Georgia, to educate paramedics. Neither of the Georgia institutions received a Florida Certificate of Approval for their paramedic training program. None of the Florida officials affiliated with the Florida Bureau of Emergency Medical Services who testified at hearing are familiar with the details of the paramedic training received by Respondents in Georgia. As of May 17, 2005, the Georgia Department of Human Resources, Division of Public Health, Office of Emergency Medical Services/Trauma certified that none of the Respondents had ever received what Georgia refers to as an EMS license, for these purposes equivalent to a Florida Paramedic Certificate. Likewise, on May 23, 2005, the National Registry of Emergency Medical Technicians provided information establishing that Respondents were never nationally registered as paramedics. In the year 2000, Florida required non-Florida candidates seeking certification to become a Florida paramedic to submit two documents. The first document was referred to as an Emergency Medical Services Profile Data Form Paramedic Certification Application (the Profile Data Form). The second document was referred to as a Statement of Good Standing from State Certifying Agency or National Registry (the Statement of Good Standing). The title for the second document pertaining to state certifying agency was in relation to another state than Florida. In the instance where an out of state applicant made application to take the Florida exam for certification to become a paramedic, there was also the expectation that he or she attach a copy of the out of state certificate issued from the other state or a copy of his or her National Registry Certification as a paramedic, as a pre-condition to sitting for the Florida exam. In the event that some of the information called for in the application documents were missing, the proper course would be for the reviewing agency to return the application documents, with an explanation to the applicant of the deficiencies found within the application documents. David Jacobson is the Program Director of the Certification Unit within the Medical Quality Assurance Division of the Department of Health. He refers to the documentation necessary for non-Florida applicants to sit for the paramedic examination in Florida during the year 2000. There would need to be information about out-of-state certification provided through the Statement of Good Standing, together with a copy of the Georgia certification card that enabled the Respondents to work in the state of Georgia. This pertains to the need for a certificate number and the expiration date of the certificate, as well as a copy of the Georgia certification card. In the absence of this information, the Respondents should have been issued a deficiency letter asking for clarification of the missing information. The application documents provided by Respondents to support their request to take the Florida examination to become a Florida paramedic were processed through Shroeder Measurement Technology (Shroeder), a contracting agent for the Florida Bureau of Emergency Medical Services. Its status as agent called for Shroeder to follow legal requirements for application review, to include the return of deficient application documents with an explanation of the problems found in reviewing the materials. In pertinent part the Profile Data Form in effect in the year 2000 stated: Exam Purpose & Level Florida Exam & Certification Paramedic - Total Fee $85 * * * Professional Education (Attach copy of certificate and CPR or ACLS card.) Enter Training Program Code From Back of Form Name of Florida Training Program Competition Date MO DAY YEAR Out-of-State Certified: (Name of State) (Certificate Number) (Expiration Date) Nationally Registered: (National Registry Number) (Expiration Date) * * * E. HIV/AIDS Training 4 hours minimum inservice required. Professional Rescuer Card No. Hours Date Completed For EMT and two man CPR Card, for paramedic an ACLS card. (Issuing Organization) (Course Level) Renewal Date) OATH: I certify (A) I am free from addiction to alcohol or any controlled substance and that (B) I am free from any physical or mental defect or disease that might impair my ability to perform as an emergency medical technician or paramedic. I understand that any fraudulent entry may be considered as cause for rejection or subsequent voiding of certification. I understand that applications are public records and must be received 30 days prior to the exam date. Applicant Signature: Sworn to and subscribed before me this day of , . In relation to the Statement of Good Standing, it set forth: Applicants with out-of-sate certification are to complete Part I and mail this form to the issuing state certification board or National Registry. Part II is to be completed by the state certifying agency or National Registry, P.O. Box 29233, Columbus, OH 43229. The agency will then mail or fax this form to Florida EMS per instructions in Part III. Part I. To be completed by applicant: I, the below named EMT/paramedic, am requesting Florida Certification based on training and current certification in the State of or by National Registry of EMTs. Name: S.S#: Applicant's Current Address: Certificate Type: EMT-Basic Paramedic Certificate No. Other: Expiration Date Part II. To Be Completed by National Registry or State Certifying Agency. Please assist by verifying this individual is certified and in good standing according to your certification policies. Is the above certificate current and valid in the EMS Office or with the National Registry of EMTs? (State) Yes No If no, why not? Has the above certificate ever been revoked or suspended? Yes No If yes, please explain Has the above individual ever been convicted of a felony? Yes No Unknown Do you know of any reason certification in Florida should be denied? Yes No If yes, why? Verifying Person's Name: Title: Agency Name: Phone Number: Part III To be mailed to: Date: The return of this form is necessary before processing can be completed. Mail or Fax to Shroeder Measurement Technologies, Inc., 2494 Bayshore Blvd., Suite 201, Dunedin, FL 34698, or Fax to (727) 738-8522. Direct questions to EMS, 2020 Capital Circle Southeast, Bin C18, Tallahassee, FL 32399-1738, (850) 487-1911. Michael Taylor, who holds certification as a paramedic in Florida and Georgia, instructed Respondents in their paramedic training at Thomas Technical Institute. Before the Respondents enrolled in the training in early 2000, Mr. Taylor was approached by Respondent Bates, Chief of the Jefferson County Fire Rescue Unit. Chief Bates told Mr. Taylor that personnel within the fire rescue unit needed to undergo training in a paramedic training course that had flexible hours for attending the course. An arrangement was made in which the Respondents would attend a couple of days a week and the personnel within the fire rescue unit could leave school to respond to emergencies in Jefferson County, with the understanding that the course work that was missed could be made up later. Jefferson County, Florida, and Thomasville, Georgia, are in close proximity. Chief Bates and other Respondents were told by Mr. Taylor that since they were attending a non-Florida paramedic course that they would have to pass the National Registry Examination before they could sit for the Florida Paramedic examination to become certified as a paramedic in Florida. At that time successful passage of the National Registry Examination served as a basis for certification in Georgia, as well as registration with the United States Department of Transportation. The course undertaken in Georgia at that time was one in which the state of Georgia used the United States Department of Transportation guidelines in preparing the students to sit for the National Registry Examination. Mr. Taylor provided Respondents with copies of the Profile Data Form and Statement of Good Standing necessary to apply to sit for the Florida examination to become a paramedic. Mr. Taylor went over these forms with Respondents early on in 2000 when Respondents began their training in Georgia. Mr. Taylor instructed the Respondents to fill out a portion of the Statement of Good Standing early in the year 2000. They wrote certain information in Part I of the forms and turned the forms back in to Mr. Taylor. They wrote "Georgia" as their training location and place of certification, upon Mr. Taylor's instruction, while providing their names, social security numbers, addresses and checking the box for certificate type as "paramedic." At that time Respondents were not yet and never have been licensed in Georgia as paramedics. Mr. Taylor took the Respondents' Statements of Good Standing and had them signed by Robert D. Vick, Sr., of the Georgia Office of EMS. Mr. Vick was and is the Regional Program Director for that agency. He is an EMTCT, ACLS. Mr. Taylor was proceeding with the understanding that Mr. Vick had the authority to execute the documents. This is in relation to the portion of the Statement of Good Standing which is Part II. These arrangements with Mr. Vick were made in December 2000. Part II to the Statements of Good Standing were signed by Mr. Vick and dated December 8, 2000. He signed under his title as EMS Coordinator/DHR, Region 8 EMS Office/Georgia DHR. Mr. Taylor persuaded Mr. Vick to sign Part II of the Statements of Good Standing realizing that the Respondents were not certified in Georgia. Mr. Taylor persuaded Mr. Vick that Mr. Vick needed to sign the documents before the Respondents could take the Florida Paramedic Examination. Mr. Taylor made Mr. Vick aware that the Respondents had not taken the National Registry Examination when Mr. Vick signed Part II of the Statements of Good Standing for Respondents, contributing to the impression that Respondents were certified as Georgia paramedics. After Mr. Vick signed his name on Part II to the Statements of Good Standing, the documents were returned to the Respondents. Mr. Vick in his testimony verified the requirements for a person to obtain a Georgia paramedic certificate in the year 2000. Georgia used the United States Department of Transportation National Registry Examination as the test instrument for the Georgia certification. In addition to passing the Georgia Paramedic Course in advance of that examination, there was also the requirement for some paperwork in association with a reciprocity arrangement between the Georgia licensing authority and the United States Department of Transportation National Registry. As Mr. Vick recalls his conversation with Mr. Taylor concerning the signing of Part II to the Statements of Good Standing, Mr. Taylor told Mr. Vick that the Respondents had completed the Georgia Paramedic Course and were preparing to take the United States Department of Transportation National Registry Examination within a few days, to be followed by the Florida Paramedic Examination a few days after that. This meant, to Mr. Vick's understanding, the Florida examination was going to be taken at a time before the National Registry Examination results were made known to the Respondents. Mr. Taylor told Mr. Vick that Jefferson County desperately needed, what Mr. Vick refers to as ACLS folks on ambulances. Mr. Vick perceived that participation in this out-of-sequence preparation of necessary documents would speed up the opportunity for the Respondents to sit for the Florida examination and to be certified as paramedics in Florida. Mr. Vick executed Part II to the Statements of Good Standing in the portion that verified his name, title, agency name, phone number and date. Otherwise information imparted within Part II was the product of someone else. Other information in the Statements of Good Standing indicate current and valid Georgia certificates, never subject to discipline, held by a person never convicted of a felony and about whom nothing was known which should cause Florida to deny certification of the applicant. This latter information was contained in the Statement of Good Standing submitted by Respondents in support of their requests to take the Florida Paramedic Examination. This act by Respondents was contrary to the expectation in the documents that Georgia or the National Registry would mail or fax the documents to Shroeder. Although he did not provide all called for information within Part II, to the Statements of Good Standing, Mr. Vick realized that the Respondents did not have a current and valid Georgia Paramedic Certificate or recognition by the National Registry. Chief Bates of the Jefferson County Fire Rescue, in his testimony conceded the need to complete the paramedic training course in Georgia and pass the National Registry Examination as a participant in a non-Florida paramedic training program, before submitting his application to Florida to take the Florida Examination. He attended the training course in Georgia because he believed that it was impractical to work a fulltime job and attend the Tallahassee Community College paramedic training course. Chief Bates submitted the Profile Data Form and Statement of Good Standing as part of the process for obtaining a Florida paramedic certificate. Chief Bates remembers the Statement of Good Standing being returned to him in December 2000. He had the opportunity to read the contents of the Statement of Good Standing but did not. Chief Bates realized based upon remarks by Mr. Taylor that the Statement of Good Standing was part of the application to take the Florida examination to become a paramedic. Chief Bates submitted that Statement of Good Standing together with the Profile Data Form to support his request to sit for the Florida paramedic's examination. In reference to the Profile Data Form, Chief Bates filled out Section 1 through 6, but did not provide any information in response to Section 7, Professional Education, or Section 8, Professional Rescuer Cards. This form was signed by him under oath on December 5, 2000. In executing the form Chief Bates realized that he had a duty to provide truthful information. The application process leading to the examination session had been arranged through Shroeder. Chief Bates has no recollection of reviewing Section 401.27(12), Florida Statutes (2000), and he did not review Florida Administrative Code Rule 64E-2.009 in effect when he took the Florida examination, as these laws set out requirements for standing the Florida Examination. Matthew Williams had been employed by the Jefferson County Fire Rescue. He now is employed by the City of Jacksonville Fire Rescue. He attended the Thomas Technical Institute because it was geographically closer to his house than a Florida program. He understood that upon completion of the training to become a paramedic he had to take the National Registry Examination and fill out an application to sit for the Florida examination before becoming a paramedic in Florida. In January following receipt of the Statement of Good Standing, he filled in Part I. He returned the form to Mr. Taylor and next saw it before his graduation in December 2000. He had the opportunity to review the Statement of Good Standing but never did. In particular, he did not review the completed Part II within the Statement of Good Standing. Mr. Williams filled out the Profile Data Form in Sections 1 through 6. He did not provide information in Sections 7 and 8. In completing the Profile Data Form Mr. Williams signed his signature under oath. He along with the other Respondents in completing that form recognized, as the form states, "I understand that any fraudulent entry may be considered in this cause for rejection or subsequent voiding of certification." Steven Thomas is a Lieutenant firefighter paramedic with the Jefferson County Fire Rescue. He understood that he had to take and pass the written and practical parts of the National Registry Examination, to be followed by an application and passage of the Florida Examination before he could be certified as a Florida paramedic. The Florida Examination would follow the submission of an application to Florida. He attended his paramedic training in Georgia because it was close to where he lived. Lieutenant Thomas filled in information in early 2000 concerning the Statement of Good Standing Form, Part 1. The Statement of Good Standing was returned to him near the end of the school term. He did not review the contents of the Statement of Good Standing, although he was provided the opportunity to conduct a review. In executing the Profile Data Form, Lieutenant Thomas filled in information in Sections 1 through 6. He did not fill in information in Sections 7 and 8. He signed the form under oath on December 5, 2000. Lieutenant Thomas failed the National Registry Examination twice. Steven R. Box was employed by the Jefferson County Fire Rescue in 2000 and now works with the Tallahassee Fire Department as a firefighter/paramedic. He understood that to sit for the Florida Paramedic Examination he had to be certified by the National Registry. He understood that completion of the Statement of Good Standing was a necessary prerequisite for taking the Florida examination. When the Statement of Good Standing was filled out in Part 1 as described, Mr. Box gave it back to Mike Taylor to be returned to Mr. Box at the end of the year 2000. Once returned, Mr. Box glanced over the form and noticed that the form had been signed by someone else. That other person was Robert Vick. In filling out the Profile Data Form, Mr. Box made no entries in Sections 7 and 8. He had filled out Sections 1 through 6. He signed the form under oath on December 5, 2000. Mr. Box took the Profile Data Form and the Statement of Good Standing to Shroeder in Dunedin, Florida, at the end of December 2000.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the paramedic certificates held by Respondents, while dismissing the cases against Respondents Bates, Williams, and Thomas related to their EMT certificates. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2005. COPIES FURNISHED: Brian J. Stabley, Esquire Assistant Attorney General Administrative Law The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Brandt Hargrove, Esquire Law Offices of Brandt Hargrove 2984 Willington Circle West Tallahassee, Florida 32309 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent's license to practice medicine has been disciplined in another state and, if so, what is the appropriate penalty for the Petitioner to impose?
Findings Of Fact At all times relevant hereto, Luke Chou-Tit Kung, Respondent, was licensed with the Florida Board of Medicine to practice medicine in Florida, having been issued License No. ME 0050393 on April 6, 1987 (Exhibit 1). This license was renewed December 13, 1989 to expire December 31, 1991 (Exhibit 2). Prior to his licensure in Florida, Respondent graduated from medical school at Wuhan Medical College in Hankow, China, in 1960. He did an internship at Wuhan Medical College 1960-61 and was in residence at this hospital 1961-62. Dr. Kung worked for American Cyanamid in Hong Kong from 1962-67. In 1967, he went to England and continued postgraduate study of medicine at Old Church Hospital, Romford, Essex, England, and St. Peters Hospital at Chertsey, Surrey, England 1968-69. In January 1970, he came to the United States and did an 18 month rotating internship at Perth Amboy General Hospital, Perth Amboy, New Jersey, until June 1971. From July 1971 through June 1973 he did his residency in internal medicine at Episcopal Hospital, Philadelphia, Pennsylvania. From July 1973 until June 1974, he was Chief Resident of Internal Medicine at Easton Hospital in Easton, Pennsylvania. In 1974, he opened his office in Easton, and in 1975 was appointed part-time member of the Allied Staff and Clinical Instructor of Internal Medicine at Hahnemann University Hospital where he remained until 1985 when he was recruited to Dawson, Georgia. He practiced in Dawson from 1985 to 1987 at which time he opened an office in Homerville, Georgia. In April 1989, Dr. Kung closed his office in HomerVille, Georgia, and moved to Tampa. He has practiced in the Tampa area since that time (Exhibit 4). In 1988, the Composite State Board of Medical Examiners in Georgia filed charges against Respondent alleging unprofessional conduct in the prescribing of controlled substances and failure to maintain proper records of those prescriptions. Following the filing of those charges, Respondent entered into a Consent Order (Exhibit 3) with the Georgia Composite State Board of Medicine Examiners in which he consented to the Board suspending his license for one year, with all but 15 days stayed, and those 15 days served by working on a charitable pro bono basis, one day per week for 15 weeks. Respondent's license was put on probation for three years under various terms and conditions specifically restricting his prescribing controlled substances. Respondent's testimony that he has complied with the terms of the Consent Order since his arrival in Florida was not rebutted. Respondent's testimony that he moved to Florida to facilitate the education of his two daughters was also unrebutted. In addition to his office in Tampa, Respondent is on the staff at Children's Hospital in Carrollwood, and he works 20 hours per week at East Pasco Health Center, a private not-for- profit health facility in Lacoochee, Florida, a medically underserved low income area where over 90 percent of the patients are Medicaid or indigent. Respondent accepts Medicaid patients in his private practice, and his name is on the Medicaid provider list with the Department of Health and Rehabilitative Services.
Recommendation That a Final Order be entered finding Luke Chou-Tit Kung guilty of violating Section 458.331(1)(b), Florida Statutes, and that his license to practice medicine in Florida be placed on probation to run concurrently with the probation established by the Georgia Board and subject to the same terms and conditions. In view of his pro bono work in Florida and complying with the terms of his probation, it is further recommended that he be assessed a minimum administrative fine of $50. ENTERED this 19th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1991. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 730 South Sterling Street Suite 201 Tampa, FL 33609 Paul B. Johnson, Esquire Post Office Box 3416 Tampa, FL 334601-3416 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
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 The Respondent is licensed as a certified public accountant in the State of Florida. On or about October 19, 1976, the Georgia State Board of Accountancy entered a Final Order revoking the Respondent's certificate as a public accountant upon a finding that she fraudulently and willfully misrepresented her experience on her application for certification filed with the Georgia Board. The finding of fraudulent and willful misrepresentation made by the Georgia Board of Accountancy referred to an alleged sworn statement on the Respondent's application that her "continuous experience" required for certification in Georgia at the time included "full-time" employment with Richard Rose and Company, P.C., from September 30, 1974, through the date of application (April 24, 1975). The Georgia Board based its finding on evidence that the application did not disclose that she also was employed as an instructor at Savannah State College full-time from June, 1972, through March, 1975, and part-time from April through June, 1975. In fact, while a "full-time" instructor at Savannah State College, the Respondent held office hours from nine to ten o'clock in the morning and held classes in the evening, for a total of approximately 25 hours a week. At the same time, the Respondent worked as an accountant with Richard Rose mid-days and afternoons and on weekends. The Respondent's numerous appeals of the Final Order within the Georgia State court system all have been denied on procedural technicalities which the Respondent has not been able to overcome. There has never been an appellate ruling on the merits of the Respondent's appeals. Meanwhile, Richard Rose, whose certificate to practice public accountancy in Georgia was suspended for three years by Final Order of the Georgia Board of Accountancy, was able to obtain de novo review on the merits on his appeal to the Georgia courts under one of the procedural remedies then available under Georgia law. On March 31, 1977, Rose obtained an Order from the Superior Court of Fulton County, Georgia, reversing the suspension. The court found that although Georgia Board of Accountancy regulations might require "full-time" experience for licensure, Rose's affidavit in support of the Respondent's application (like he Respondent's sworn statement) did not swear that the Respondent was employed full-time with Rose, but only that she was "continuously" employed. The court also found that there was no evidence that the Respondent was not employed as stated in Rose's affidavit. As the appropriate discipline for the offense it has charged in this case, the Petitioner has proposed that two years probation, on terms set by the Board of Accountancy, be recommended.
Recommendation Based on the foregoing Findings Of Fact (including the Petitioner's proposal that the appropriate penalty is probation) and Conclusions Of Law, it is recommended that the Board of Accountancy enter a final order sustaining the charges against the Respondent, Essie Mae Thompson, and placing the Respondent on two years probation on terms established by the Board. RECOMMENDED this 21st day of September, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Chief Attorney Professions Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Antonio L. Thomas, Esquire Thomas and Dotson Post Office Box 54867 151 Ponce de Leon Avenue, North East Suite 201 Atlanta, Georgia 30308 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Martha Willis Executive Director Board of Accountancy Suite 16 4001 North West 43rd Street Gainesville, Florida 32306
The Issue The issues presented here are based upon an Administrative Complaint filed by the Petitioner against the Respondent seeking the revocation, suspension, or other disciplinary action against the Respondent, and his license to practice medicine in the State of Florida. Count I to the Administrative Complaint accuses the Respondent of making misleading, deceptive, untrue and fraudulent representations in obtaining his license to practice medicine in the State of Florida. It is further contended that Respondent has not and cannot demonstrate that he graduated from medical school, and alleges that Respondent cannot demonstrate that he has met the minimal medical education, training and experience necessary for licensure by the Petitioner. Based upon these allegations, Respondent has purportedly violated Subsection 455.1201(1)(a), Florida Statutes (1977), by failing to demonstrate qualifications and standards for licensure contained in Chapter 455, Florida Statutes, or the rules and regulations of the Board of Medical Examiners. Count II, utilizing the same factual basis as has been alleged in the initial count, accuses the Respondent of violating Subsection 455.1201(1)(b) , Florida Statutes (1977), by practicing fraud or deceit in obtaining a license to practice medicine. Count III accuses the Respondent, based upon the aforementioned facts, with violating Subsection 458.1201(1) Florida Statutes (1977), by engaging in unethical, deceptive or deleterious conduct or practice harmful to the public. Count IV is based upon the facts as related in Count I and asserts that Respondent has violated Subsection 455.1201(1)(m), Florida Statutes (1977), by being guilty of immoral or unprofessional conduct, negligence or willful misconduct. Count V, utilizing the facts related in Count I, alleges that Respondent has violated Subsection 455.327(2)(c), Florida Statutes (1951), and thereby violated Subsection 458.331(1)(x), Florida Statutes (1981), by violating a provision of Chapter 455, Florida Statutes. Finally, Count VI, asserting the facts as discussed herein, alleges that Respondent has violated Subsection 455.331(1)(a), Florida Statutes (1951), by attempting to obtain and obtaining a license to practice medicine by fraudulent misrepresentations CASE HISTORY On September 24, 1981, the Petitioner filed the Administrative Complaint against the Respondent which is the subject of this proceeding and which is referred to in summary fashion by the Issues statement to this Recommended Order. Subsequently, Respondent requested a hearing in this cause on November 11, 1981, by indicating, in substance, that he disputed the allegations as contained in the Administrative Complaint. On that same date, Respondent, through counsel, answered the Administrative Complaint. This answer was made a part of the record in the course of the final hearing and is being forwarded with the Recommended Order in this action. On November 30, 1981, the Division of Administrative Hearings received the case from Petitioner, the Petitioner having requested the Division to conduct a formal hearing in this matter. On December 3, 1981, Respondent's initial counsel withdrew from representation of Respondent. Respondent subsequently obtained the assistance of his present counsel, Rodney Smith, Esquire, and a final hearing was conducted on March 9, 1982, in keeping with Subsection 120.57(1), Florida Statutes. Petitioner's presentation consisted of testimony by Dorothy J. Faircloth, Executive Director, Board of Medical Examiners, State of Florida. Petitioner also offered seven (7) items as evidence. All those items, with the exception of Nos. 5 and 6, have been received. Respondent gave testimony and presented as witnesses Edward M. Crawford, President, High Springs, Florida, Chamber of Commerce; Lorna J. Peters, resident, High Springs, Florida; Leslie Ann Morgan, X-Ray Technologist in the office of Respondent; Angela Anderson, employee of Respondent; Mireya Braga, Respondent's wife; Lacey William Register, Mayor, High Springs, Florida; a Mr. Westmoreland, resident, High Springs, Florida; Cybil M. Crawford, Vice- President, High Springs Bank, High Springs, Florida; and Thomas William Wolfe, Chief of Police, High Springs, Florida. Respondent offered six (6) items of evidence. All items have been received. The parties, in the person of counsel, have offered proposed recommended orders and supporting argument. Those matters have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with this Recommended Order, they have been utilized. To the extent that the matters are inconsistent with this Recommended Order, they are hereby rejected.
Findings Of Fact In February, 1976, Respondent made his initial application to the Board of Medical Examiners to become a licensed physician in the State of Florida. A copy of that application may be found as Petitioner's Exhibit No. 1, admitted into evidence. This application was received beyond the time of the deadline for filing and as a consequence, Respondent was required to submit a further application. The second application was made on January 17, 1977. A copy of that application may be found as Petitioner's Exhibit No. 2, admitted into evidence. Both applications were prepared by the Respondent and sworn to as to their accuracy. This attestation also acknowledged that if false information was given in the application, that Respondent agreed that the act of falsifying the application constituted cause for denial, suspension or revocation of his license to practice medicine in the State of Florida. Following the submission of the second application for licensure, Braga stood the Board of Medical Examiners' license examination, given in English, and was a successful candidate for licensure. He was awarded License No. ME0032004 and has renewed that license by the payment of applicable fees since the initial award of the license in 1978. The Administrative Complaint which has been discussed in the course of this Recommended Order challenges the accuracy of the information presented in the applications which were submitted by Respondent. In the initial application filed by the Respondent for licensure dating from February, 1976, Braga states that he attended Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from February, 1971, through December, 1967. In the application, Respondent indicates that he practiced and/or was employed at the INPS (Institute National of Providence Social) , Sao Paulo, Brazil, in General Practice, between 1970 through 1972; Clinica Nuesta Senora, Sao Paulo, Brazil, in General Practice, between 1971 through 1972; Heliopolis Hospital, Sao Paulo, Brazil, between 1969 through 1970, and the Fundacao Centro Nacional, San Paulo, Brazil, between January, 1968 and December, 1968. The initial application of February, 1976, also contained a document written in Portuguese, which was sworn and certified to by Braga as being a true, authentic and legitimate photocopy of the original of his medical diploma issued by Medic Sciences of Santos in Brazil. (See Petitioner's Exhibit No. 1) There is also contained in the application of February, 1976, an indication, under oath by Respondent, concerning a document as attached, purportedly issued by Heliopolis Hospital in San Paulo, Brazil. Finally, Respondent had attached to the form application, and found in Petitioner's Exhibit No. 1, affidavits from three physicians; Antonio J. Maniglia, Jorge Macedo and Humberto Munoz. These affidavits indicated that the physicians swore and affirmed that, by their personal knowledge, Respondent attended and graduated from Faculdade de Ciencias Medicas de Santos, and practiced lawfully in the profession of medicine in Brazil in the years 1968 through 1972, and further indicated that the physicians had practiced in Brazil during that time. It has been proven and Respondent acknowledges that the application of February, 1976, Petitioner's Exhibit No. 1, was false to the extent that it indicated his attendance at Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, during the years 1971 through 1967; to the extent that the application indicated he practiced in the hospitals and clinics as set forth above, and to the extent that the application indicated that the physicians who had signed the affidavits had personal knowledge of Respondent's graduation from the medical school and his practice of medicine in Brazil. In the January, 1977, application with associated documents, found as Petitioner's Exhibit No. 2, admitted into evidence, Respondent indicates to the Board of Medical Examiners that he attended Faculdade de Ciencias Medicas de Santos, Sao Paulo, Brazil, from December 1967 to February, 1971, and received his degree of Doctor of Medicine from that school on January 7, 1967. He indicates in the application, on the subject of residency or other postgraduate training, that he worked at the Fundacao Lusiada, Faculdade de Ciencias Medicas de Santos, from January, 1967, through October, 1967; and attended a Vascular Surgery Course, in the Heliopolis Hospital, Sao Paulo, Brazil, November, 1970. His employment was described in the application as being at the INPS (Institute National of Providence Social) Hospital, Sao Paulo, Brazil, General Practice, 1970 through 1972; at Clinica Nuestra Senora, Sao Paulo, Brazil, General Practice, 1971 through 1972; at Heliopolis Hospital, Sao Paulo, Brazil, General Practice, 1969 through 1970; and Fundacao Centro Nacional, General Practice, January, 1968 through December, 1968. The second application, which is found as Petitioner's Exhibit No. 2, attached a medical diploma purportedly from the School of Medical Sciences of Santos (Faculdade de Ciencias Medicas de Santos). This document shows a date of January 7, 1967, and was dissimilar to the diploma document which was attached to the February, 1976, application. There were certain affidavits with the January, 1977, application from physicians Jose A. Pardo, Jaime Motta and Pedro Melo, which affidavits indicated that the physicians had personal knowledge of Braga's attendance and graduation from Faculdade de Ciencias Medicas de Santos, in Sao Paulo, Brazil, and that he had lawfully practiced the profession of medicine in Brazil in the years 1967 through 1972. It was shown and Respondent admits that the January, 1977 application for licensure was false, in that Respondent did not attend the Faculdade de Ciencias Medicas de Santos in Sao Paulo, Brazil, from December 1967 through February, 1971; that be had not practiced medicine in the hospitals and clinics as listed; that be had not attended residency or postgraduate training programs as shown in the application; and that the physicians who signed the affidavits for Respondent did not have personal knowledge of his graduation from medical school or his practice of medicine in Brazil. In reality, while it is accepted, that Respondent, who is a native of Brazil, has obtained a medical doctor's knowledge, Braga is not found to have graduated from a medical school either in that country or elsewhere or to have, following graduation from a medical school, practiced medicine as a general practitioner for five years or practiced in a one-year internship program, prior to licensure in Florida. Respondent departed Brazil sometime either in 1968 or 1969. Fe did so in the face of circumstances in his country, in which Respondent had been imprisoned. After gaining his freedom he migrated to the United States. When Braga arrived in the United States, he moved to Chicago, Illinois, and practiced medicine in that community without the benefit of a medical license. He subsequently left the State of Illinois and moved to Florida. After arriving in Florida and while employed in the Milagrosa Clinic in Miami, Florida, practiced medicine. At that time he had not been licensed by the State of Florida to practice medicine. Prior to the date of licensure by the State of Florida, Respondent attended and successfully completed the Florida State Board of Medical Examiners' continuing education program for 1977, which was offered by the Office of International Medical Education, University of Miami, School of Medicine, In turn, he successfully stood the requisite medical examination offered in English and was licensed. After receiving his medical license in 1975, Respondent moved to High Springs, Florida, and opened a medical practice which is primarily involved with the general practice of medicine. In the course of his practice, he has treated some 15,000 to 20,000 patients. Respondent offered as witnesses many persons from the community of High Springs, Florida, who, from the point of view of these individuals, are impressed with his good moral character. No evidence was presented from either side on the subject of Respondent's reputation as a medical practitioners as perceived by members of his profession.
The Issue The principal issue in this case is whether the Respondent, Dr. Livingston, is in violation of Section 458.331(1)(b), Florida Statutes, by reason of certain events which occurred in New Jersey. The Respondent has also raised several collateral issues, including issues concerning the validity of and the interpretation to be given to the cited statutory provision.
Findings Of Fact Based cn the exhibits received in evidence at the hearing in this case, I make the following findings of fact. The Respondent, Robert Michael Livingston, M.D., is a licensed medical physician, having been issued license number NE0009825 by the Florida Board of Medical Examiners. His last known address is 33 Southeast Third Street, Boca Raton, Florida 33432. Dr. Livingston has been licensed to practice medicine in both the State of Florida and the State of New Jersey for a number of years. The Dr. Livingston who is the Respondent in this case is the same Dr. Livingston who holds license number 18863 in the State of New Jersey and who was the subject of the administrative proceedings in the State of New Jersey which were resolved by a Final Order by Consent dated January 12, 1983. By an Administrative Complaint dated May 18, 1981, and an Amended Administrative Complaint dated September 17, 1981, the Attorney General of the State of New Jersey sought the suspension or revocation of Dr. Livingston's license to practice medicine in the State of New Jersey. The grounds alleged in the Amended Administrative Complaint included conduct which was asserted to constitute (a) the employment of unlicensed persons to perform work which may legally be done only by persons licensed to practice medicine and surgery; (b) gross malpractice and gross neglect in the practice of medicine; (c) professional incompetency; (d) lack of capability to discharge the functions of a medical licensee in a manner consistent with the health, safety and welfare of the public; and (e) habitual use of intoxicants. The allegations of the New Jersey Administrative Complaint and Amended Administrative Complaint were never proven in any proceeding in New Jersey. All of the allegations of the New Jersey Administrative Complaint were resolved by the entry of a Final Order by Consent dated January 12, 1983. The prefatory language of the Final Order by Consent contains the following relevant language: Subsequent to the filing of the complaint the parties have concluded that this dispute can be amicably resolved by means of this Final Order by Consent. In entering into this Final Order Dr. Livingston denies any malpractice, gross or otherwise, and this resolution of the dispute is therefore not to be construed as an admission by Dr. Livingston of any of the allega- tions contained in the complaint. The parties hereto acknowledge that the Board of Medical Examiners does not contend that Dr. Livingston is presently dependent upon controlled dangerous substances. In entering into this Final Order the Board of Medical Examiners relies upon Dr. Livingston's representation that he is not now practicing medicine and surgery in New Jersey, but is so practicing in the State of Florida. The dispositional language of the Final Order by Consent reads as follows: IT IS ORDERED AND AGREED, therefore, on this 12th day of January, 1983, that: Robert M. Livingston will not practice medicine and surgery in the State of New Jersey for a two-year period, that period having commenced on May 22, 1981. If at any time after the expiration of this two- year period he shall seek to practice medicine and surgery in New Jersey, he shall either personally appear before the Board of Medical Examiners or submit proof of his compliance with paragraph 2 of this Final Order. In addition, the Board of medical Examiners may in its discretion reguire Dr. Livingston to submit to a general psychiatric evaluation performed by a Board-certified psy- chiatrist designated by the Board of Medical Examiners to determine whether there exists any medically unjustified dependence upon con- trolled dangerous substances. Bobert M. Livingston will pay $2,500.00 as a sharing of the costs of the Board inquiry into the matters resolved by this Final Order. Robert Il. Livingston will pay the expert fee billed to Dr. Livingston by Dr. Leslie Iffy for Dr. Iffy's testimony during depo- sitions, and Dr. Livingston will be responsible for paying the cost of all transcripts of the depositions of Dr. Iffy, Kathleen M. Brancaccio and Nicholas Brancaccio. None of the provisions of this Final Order by Consent shall be deemed a disciplinary sanction or penalty under the Medical Practice Act. This Final Order by Consent consitutes resolution of all matters arising from the complaint as it pertains to Robert A. Livingston, and the complaint as it pertains to him is dismissed with prejudice. (Emphasis added.) Thereafter, effective July 1, 1953, Dr. Livingston's license to practice medicine in the State of New Jersey was renewed for a two-year period ending on June 30, 1955. ANALYSIS OF TUE ISSUES Issues Regarding Findings of Fact The Respondent has asserted that Petitioner's Composite Exhibit 2 constitutes hearsay evidence which would not be admis- sible over objection in a civil action and that, by operation of Section 120.55(1)(a), Florida Statutes, the exhibit is insufficient to support a finding of fact. Contrary to the assertions of the Respondent, it should be noted that Petitioner's Composite Exhibit 2 comes within the "public records exception to the hearsay rule [see 90.803(8), Fla. Statutes] and is self-authenticating within the meaning of Section 90.902, Florida Statutes. Accordingly, the exhibit would be admissible over objection in a civil action and is, therefore, a sufficient basis for making findings of fact in this case. In making the foregoing findings of fact, I have, with the exceptions noted hereinafter, incorporated the text or substance of the vast majority of the findings of fact proposed by the parties. My reasons for not making certain findings proposed by the respondent are as follows. The last sentence of Respondent's proposed finding number 3 is not supported by competent substantial evidence. The penultimate sentence of Repondent's proposed finding number 4 is more in the nature of argument or a proposed conclusion of law than a proposed finding of fact. My reason for not making Petitioner's proposed finding of fact numbered 4 is that it is more in the nature of a conclusion of law than a proposed finding of fact--it is a proposed interpretation of the legal effect of the Final Order by Consent rather than a summary of the text of that order. The Delegation of Authority Issue At the hearing in this case, the Respondent also argued that Section 458.331(1)(b), Florida Statutes, constitutes an improper delegation of authority to officials of other states because by operation of the statute officials in other states are able to determine who shall be subject to discipline in the State of Florida. This argument has already been resolved contrary to the Respondent's contentions. See Bryan v. State Board of Medical Examiners of Florida, 381 So. 2d 1122 (Fla. 1st DCA 1979), affirmed, 398 So. 2d 1354 (Fla. 1981). The Sufficiency of the Statement of the Charges Against the Respondent The Respondent also asserts that a finding of guilt in this case would constitute a denial of due process because he was charged in the Administrative Complaint with having his license "acted upon" and was not charged, in the language of the statute, with having his license "acted against." There are, of course, cases in which a failure to charge in the statutory language could deprive a Respondent of his right to know the charges against him and have adequate opportunity to prepare his defense against them. But the Respondent is not entitled to a perfect statement of the charges against him. Rather, the standard which west be met by the language of the Administrative Complaint is that the . . . . grounds for revoking a license to practice medicine must be alleged with reasonable certainty and show the nature and cause of the accusa- tion and he must be given reasonable opportunity to defend against attempted proof of such charges. (Emphasis added.) State ex rel. Sbordy v. Rowlett, 190 So. 59 (Fla. 1939), at 62. Despite the failure of the Administrative Complaint in this case to track the exact language of the statute, the Respondent had full knowledge of the factual basis for the charge against him and was also fully aware of the legal basis for the charge. Therefore, he knew with "reasonable certainty" what the Petitioner would attempt to prove, and he had a "reasonable opportunity" to defend against the charge. The Principal Issue in the Case Turning at last to the heart of the matter, the principal issue which must be decided in this case is whether the actions of the Attorney General of the State of New Jersey or the Hoard of Medical Examiners of the State of New Jersey described in the findings of fact constitute, in the language of Section 455.331(1)(b), Florida Statutes: Having a license to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country. For the reasons explained below, I conclude that they do not. Part of the resolution of this issue turns on the interpretation to be given to the terms "suspended," "acted against," and "licensing authority," as used in Section 458.331(1)(b), Florida Statutes. None of these terms are defined in the statute. Accordingly, pursuant to well-established rules of statutory construction, these terms must be given their plain and ordinary meaning. See cases collected at Vol. 10-B, Florida Digest, Statutes, 188, of which the following is a modest sample. Crown Diversified Industries, Inc. v. Watt, 415 So.2d 803 (Fla. 1st DCA 1982); St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071 (Fla. 1982); J. C. Vereen & Sons, Inc. v. City of Miami, 397 So.2d 979 (Fla. 3d DCA 1981); Gasson v. Gay, 49 So.2d 525 (Fla. 1951); Gaulden v. Kirk, 47 So.2d 567 (Fla. 1950). The term "licensing authority," as used in Section 458.331(1)(b), Florida Statutes, means the governmental entity in a foreign jurisdiction which possesses the power and authority to take final action to grant a license or to deny, revoke, or suspend a license, or to otherwise impose discipline on a licensee. In this case, the relevant "licensing authority" is the Board of Medical Examiners of the State of New Jersey. The Attorney General of the State of New Jersey is not a "licensing authority" within the meaning of Section 458.331(1)(b), Florida Statutes, because, although the Attorney General prosecutes complaints against licensees, nothing in this record shows that the Attorney General has the power and authority to grant, revoke, or suspend a license, or to impose any discipline on a licensee. Therefore, even if the actions of the Attorney General of the State of New Jersey described in the findings of fact were to be construed as action against a license, such action would not establish a violation of Section 458.331(b), Florida Statutes, because it would not be action by a "licensing authority." Accordingly, in order to establish a violation of the cited statute in this case, the Department must show that the Board of Medical Examiners of the State of New Jersey suspended or acted against the license of Dr. Livingston. 2/ The plain meaning of the term "suspend" is "to render temporarily void" or "to punish by temporary exclusion." See The Random House Dictionary. And the plain and ordinary meaning of "against," in the context in which it appears in the subject statute, is "in opposition or hostility to." Id. A careful review of the Final Order by Consent reveals that the action taken by the Board of Medical Examiners of the State of New Jersey did not suspend Dr. Livingston's license and did not constitute any action against Dr. Livingston's license. The Final Order by Consent does not purport to suspend Dr. Livingston's license and does not purport to impose any other form of discipline against him. This is evidenced by the penultimate paragraph of the order, which specifically states: "None of the provisions of this Final Order by Consent shall be deemed a disciplinary sanction or penalty under the Medical Practice Act." (Emphasis added.) Further, there is nothing in the Final Order by Consent which purports to order Dr. Livingston to do anything or to refrain from doing anything. Quite to the contrary, the dispositive action of the New Jersey Board in the final paragraph of the Final Order by Consent was to dismiss, with prejudice, the complaint against Dr. Livingston. The Department argues that the language of paragraph number 1 of the Final Order by Consent constitutes a suspension of, or action against, Dr. Livingston's New Jersey license and that paragraphs number 2 and 3 of that order also constitute action against Dr. Livingston's New Jersey license. Paragraph number 1 of the Final Order by Consent does state that Dr. Livingston "will not" practice medicine in the State of New Jersey for a specified period and paragraphs number 2 and 3 of that order do state that Dr. Livingston "will pay" certain expenses related to the case. But those paragraphs cannot be interpreted as having the legal effect urged by the Department, because to do so would be to belie the express language of paragraph number 4 of the same document (which states that nothing in the order constitutes "a disciplinary sanction or penalty") and to ignore the operative language of the order, which is to dismiss the complaint with prejudice. It would be a total contradiction to say, on the one hand, that the New Jersey Board dismissed the complaint against Dr. Livingston and did not impose any disciplinary sanction or penalty and to then conclude that the New Jersey Board had suspended Dr. Livingston's license and had otherwise acted against his license. Furthermore, nothing in paragraphs number 1, 2, or 3 of the Final Order by Consent prohibits Dr. Livingston from doing anything or orders Dr. Livingston to do anything. Those paragraphs simply state that Dr. Livingston will not do this and will do that. The clear import of the statements in these three paragraphs is that they recite what Mr. Livingston has agreed to do and not to do. It is noteworthy that these three paragraphs are immediately preceeded by a statement reading "IT IS ORDERED AND AGREED." Inasmuch as the three subject paragraphs do not order Dr. Livingston to do or refrain from doing anything, they can only be construed as manifestations of what Dr. Livingston agreed to do and to refrain from doing. Thus, these paragraphs constitute action taken by Dr. Livingston, not action taken by the Board. Finally, this interpretation of paragraphs number 1, 2, and 3 is compelled by the fact that it would be incongruous to conclude that the New Jersey Board was, in a single act, both penalizing Dr. Livingston (which the order specifically disavows) and dismissing all charges against him. Reduced to the vernacular, the New Jersey Board made a deal with Dr. Livingston that if he would agree to do this and not do that, they would not take any action against him, and the Final Order by Consent is the implementation of that deal. And in this regard it is important to take cognizance of the fact that the Final Order by Consent was not a consent to the entry of an order against Dr. Livingston. Quite to the contrary, it was a consent to a dismissal of all charges. The Department also argues by analogy that the New Jersey consent order in this case is as sufficient a basis for finding a violation of Section 458.331(1)(b) as was the consent order entered by the Composite State Board of Medical Examiners of the State of Georgia, which was relied on in Department of Professional Regulation, Board of Medical Examiners v. Ralph C. Lee, M.D., 4 FALR 2388A (1982) The analogy fails because of the following notable differences. In the Lee case, Dr. Lee's consent in the Georgia case included an admission of some or all of the charges brought against him. Here, Dr. Livingston's consent in the New Jersey case incorporates an express denial of the charges against him. In the Lee case, the Georgia Hoard revoked Dr. Lee's license and then put Dr. Lee on probation. Here the New Jersey Hoard dismissed with prejudice all charges against Dr. Livingston. In the Lee case, a clear violation of Section 485.331 (1)(b) , Florida Statutes, was established. Here, there was no such violation. A Collateral Issue Which Need Not Be Decided Here A final issue which need not be decided here, but which nevertheless warrants brief attention, is the Respondent's contention that his due process rights will be violated unless Section 458.331(1)(b), Florida Statutes, is construed quite narrowly. He argues that Section 458.311(1)(b) should be construed . . . . as requiring the allegation, substan- tiated by competent substantial evidence, that a licensee has had his license revoked, suspended or otherwise acted against by the licensing authority of another state, territory, or country, for conduct which would constitute a violation of 458.331, Florida Statutes, if that conduct were committed in Florida. Petitioner replies to the foregoing by arguing that the Respondent's due process arguments involve constitutional issues which are beyond the scope of the Hearing Officer's authority. In view of the foregoing conclusions about the effect of the Final Order by Consent, it is not necessary in this case to embark upon a lengthy analysis of the extent to which the proper interpretation of Section 358.331(1)(b) , Florida Statutes, may be colored by constitutional considerations. 4/ Nevertheless, because occasion to address this issue may arise at some later stage in these proceedings, I commend to the parties' attention the following comments from Hotel, Motel, Restaurant Employees and Bartenders Union, Local 737 v. Escambia County School Board, 3 FALR 2122A (1981) at 2125A--2126A, affirmed, 426 So.2d 1017 (Fla. 1st DCA 1983): Prior to embarking upon a discussion of the constitutional ramifications of the issues at hand we hasten to acknowledge that we are well aware of the limitations upon an adminis- trative agency's role in matters which involve the application or interpretation of our State Constitution. As noted in Barr v. Watts, 70 So.2d 347 (Fla. 1953) , and State ex rel. Atlantic Coast Line Railroad Co. v. State Board of Equalizers, 94 So. 681 (ala. 1922) the "right to declare an act unconstitutional cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution." But the fact that we are without authority to rule upon the constitutionality of statutes does not mean that we must ignore the Constitution. To the contrary, where the meaning of a statute is colored by provisions in the Constitution our hope of reaching the correct understanding of that meaning lies in part in a consideration of those constitutional consequences. * * * * And while we may not, in the course of ourefforts to construe applicable statutory provisions, declare a statute to be unconstitutional, neither are we required to fumble around in some pretended ignorance of reality. if we are to act responsibly, we must act in full contemplation of the inescapable consequences of what the courts have already said about similar statutes . . . And even though we lack the power of a court with regard to the ruling upon the validity of a statute, we owe to the Legislature certainly no less duty than is owed by the courts to respect the enactments of that body. In this regard it seems especially appropriate for us to follow the same rules as are followed by the courts in their construction of statutory pro visions which skate near the thin ice of constitutional invalidity particularly in light of the fact that in the event of judicial review of this order notions of stare decisis make it most likely that any reviewing court would also resort to the same time-tested rules of construction. (Word in square brackets added.) See also: Florida Education Association/United v. Public Employees Relations Commission, 346 So.2d 551 (Fla. 1st DCA 1977), at 553. In Brief Summary In sum: The Final Order by Consent issued by the Hoard of Medical Examiners of the State of New Jersey on January 12, 1983, does not constitute a suspension of Dr. Livingston's license to practice medicine in that state, nor does it constitute action against such license. There is no competent substantial evidence in the record of any other revocation, suspension, or action against Dr. Livingston's license to practice medicine in New Jersey. Therefore, the violation charged in the Administrative Complaint in this case has not been proved and the Administrative Complaint should be dismissed.
Recommendation Based upon all of the foregoing, I RECOMMEND that the Florida Board of Medical Examiners enter a Final Order in this case dismissing in its entirety the Administrative Complaint against Dr. Livingston. DONE and ORDERED this 28th day of June, 1984, at Tallahassee, Florida. MICHASEL M. PARRISH 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 28th day of June, 1984.
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)
