The Issue The issue for determination is whether Respondent, a licensed physician, committed a violation of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. On December 29, 1994, the Board of Medicine issued a final order against Respondent. The final order suspended Respondent’s license to practice for at least 6 months, pending his demonstration to the Board that he could practice medicine with skill and safety by undergoing an evaluation by a psychiatrist approved by the Physicians Recovery Network (PRN). The final order also required Respondent’s completion of a period of probation after reinstatement and his payment of an administrative fine in the amount of $5,000 within 30 days of the final order. Respondent has consistently failed to comply with the final order, inclusive of the payment of the $5,000 administrative fine. Other requirements of the final order relating to psychiatric evaluation and completion of a probationary period have also not been met.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 64B-8.001, Florida Administrative Code, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violation alleged in the administrative complaint and revoking Respondent's license. DONE AND ENTERED this 2nd day of April, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1998. COPIES FURNISHED: Carol Lanfri, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael Stone, Esquire 116 East 4th Street Panama City, Florida 32401 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Louis John Tsavaris should be relicensed to practice medicine in this state.
Findings Of Fact By Final Order entered October 20, 1982, the Florida Board of Medical Examiners revoked Petitioner's license to practice medicine in this state. Although there were numerous charges in the Administrative Complaint and Amended Administrative Complaint upon which the hearing proceeded, the Hearing Officer found, and the Board adopted these findings, that Petitioner herein, Respondent in those proceedings, was guilty of two technical violations of Chapter 458, Florida Statutes, and one serious violation. The technical violations found in those proceedings was: (1) The failure to check one block in his drug authorization renewal application to authorize dispensing Class II drugs, which resulted in Respondent dispensing Class II drugs without proper authorization to do so, although no evidence was presented that any of these drugs were improperly prescribed; and (2) The issuance of a prescription for a Class IV drug in the name of Respondent rather than his office. No evidence was presented at that hearing that Dr. Tsavaris used that drug (Nortec) himself or allowed its misuse by any patient. At this hearing, uncontradicted evidence was presented that the failure to renew his DEA license to prescribe Schedule II drugs was an office oversight, and the one prescription in Petitioner's name was for one Class IV drug to dispense to suicidal patients from the office. The violation of Chapter 458 found by the Hearing Officer and the Board to justify revocation of this Petitioner's license was the conviction of Dr. Tsavaris of the crime of manslaughter which was found by the Hearing Officer to be a violation of Section 458.331(1)(c), Florida Statutes (1980), which proscribes being found guilty of a crime directly relating to the practice of medicine or the ability to practice medicine. Dr. Tsavaris was found guilty in 1981 of gross negligence in the death of a former patient whose apartment he visited in 1975 near midnight in response to her telephone call for help, and he was sentenced to imprisonment for 15 years. Petitioner was incarcerated at the Avon Park Correctional Institute (APCI) and served 2 1/2 years of his sentence before being paroled in July 1984. He is currently on probation until 1997. Petitioner's probationary supervision has been reduced to require him to report to his probation officer only once every six months. Evidence was presented that parolees are usually released from all probation shortly after their reporting interval is changed to six months. Evidence was presented, and unrebutted, that the jury found the cause of death of the victim Petitioner was charged with killing, was not proven. Further, the jury found the lesser included offense of manslaughter based upon Tsavaris' testimony that he had stopped for ice cream in route to the deceased apartment. The jury concluded that had he not stopped, the alleged victim may not have died. The jury found this act to constitute gross negligence under the circumstances. During his stay at APCI, Petitioner participated in a variety of self- help programs aimed at rehabilitation. William Pivnick, Chief of Rehabilitative Services at APCI during the time Petitioner was there, holds a Ph.D. degree in psychology and was accepted as an expert in rehabilitation. Pivnick opined that Petitioner is eminently qualified as a psychiatrist, and to the extent rehabilitation is applicable to the offense of which Petitioner was convicted, that Petitioner was rehabilitated and most unlikely ever to commit a similar offense or be a danger to society. Pivnick also gave Petitioner high marks for his assistance to, and relations with, other prisoners at APCI. When Petitioner was released from APCI in 1984, he was given a job in Tsavaris' Construction Company where he worked for one or two years. Thereafter, he was involved in developing mobile home parks and recently has begun managing a chiropractic office. Petitioner has become involved in a project to resolve questions regarding human longevity and has devoted considerable time to this study. For the past two years, Petitioner spent two or three days per month in a medical clinic in Perry, Florida, observing procedures and discussing these procedures with the clinic's owner and director. The clinical director, Dr. Euliogio Vizarra, at Petitioner's request, arranged for Petitioner to be evaluated by Dr. Paul Leone, forensic psychiatrist at the State Hospital at Chattahoochee, Florida. Objection to the introduction of the report of Dr. Leone of this evaluation was sustained. Petitioner was examined and tested by Dr. Vesley, a retired psychiatrist whose medical license is current. Dr. Vesley found Petitioner to be current in his medical knowledge and capable of practicing medicine with reasonable skill and safety to his patients. Petitioner was given a battery of tests by Dr. Merin, a psychologist who is board-certified in clinical psychology, in professional neuro-psychology, behavioral medicine, and medical psychotherapy. After some five hours of testing plus some 15 hours of additional tests given by others and interpreted by Dr. Merin, Dr. Merin found Petitioner to be very intelligent and fully able to practice medicine with skill and safety to his patients. Dr. Walter Afield is board-certified in adult psychiatry, child psychiatry, and mental health administration; and has been a senior member of the American Board of Psychiatry and Neurology for the past 21 years. Dr. Afield opined that Petitioner is competent and able to practice medicine with safety to patients. If Petitioner's license is restored under the condition he be supervised by another psychiatrist, Dr. Afield would be willing to assume that supervision. With respect to the professional ability of Petitioner to practice psychiatry after a 10 year hiatus, the evidence submitted leads to the conclusion that, although there has been a substantial change in the field of psychiatry, that change has been toward a greater use of chemical treatment with little or no change in analytical techniques. Petitioner's forte while practicing psychiatry was in his treatment of patients by analysis and group therapy. Although a psychiatrist who has not practiced his profession for some 10 years would not be expected to be current on psychotropic drugs presently being used, uncontradicted evidence was presented that a psychiatrist could become current in the use of psychotropic drugs in a two weeks training period. Petitioner testified that he had taken some continuing medical education courses from time to time since his release from prison, but submitted no documented evidence to support this testimony. He did submit evidence of completing 22 CME credits within the past year. Apart from the medical evidence submitted regarding Petitioner's knowledge of his field and his ability to resume practice with skill and safety to patients, several former patients of Petitioner testified to the excellent treatment and help they received from Petitioner and that if his license is restored, they would not hesitate to engage his services, if needed, or refer family members to him for treatment. It has been the practice of the Board of Medicine not to reinstate the license of a physician while the physician is on parole or probation.
Recommendation It is recommended that the license of Louis John Tsavaris as a medical doctor be restored upon the following conditions: That he work under the direct supervision of a psychiatrist acceptable to the Board of Medicine for a period of one year. That Dr. Tsavaris take an intensive course in the use of psychotropic medicine. That for the next two years Dr. Tsavaris complete annually the CME credit hours required by other physicians biannually. ENTERED this 2nd day of July, 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 2nd day of July, 1991. APPENDIX Proposed findings submitted by Petitioner are accepted, except as noted below. Those not included in the Hearing Officer's findings were deemed unnecessary to the results reached. 7. Ultimate sentence rejected. Dr. Leone's report was not admitted into evidence. 16. Rejected as legal conclusion. 27. Rejected as irrelevant. 29. First sentence accepted only as Dr. Tsavaris' testimony. See HO #15. Accepted only as unrebutted testimony of Dr. Tsavaris. Rejected as irrelevant. Proposed findings submitted by Respondent are accepted, except as noted below. Those proposed findings not included in the Hearing Office findings were deemed unnecessary to the results reached. Third sentence rejected. CME courses of approximately 25 hours were documented. Dr. Tsavaris testified he attended other CME courses for which he had no documentation. Sixth sentence rejected as conclusion. Ultimate sentence rejected as conclusion. Ultimate sentence rejected. The court held that evidence was presented to support a finding that Tsavaris accidently strangled the victim and, if so, under the circumstances this would constitute culpable negligence and thereby support the jury's verdict of manslaughter. Rejected as unsupported by credible evidence. First sentence rejected. Tsavaris acknowledges that his judgment was faulty in the acts that led to his conviction of manslaughter. Last two sentences rejected. Although Dr. Tsavaris grew up in Tarpon Springs, he was practicing in Tampa when the incident arose which led to the revocation of his license. COPIES FURNISHED TO: Louis John Tsavaris Post Office Box 733 Tarpon Springs, FL 34689 Ann Cocheu, Esquire Suite 1603, The Capitol Tallahassee, FL 32399-1050 Dorothy Faircloth Executive Director 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 =================================================================
Findings Of Fact The findings of fact stipulated to by the parties are as follows: The Respondent's license was suspended for a period of three years by Final Order of the Board of Medical Examiners filed on or about June 25, 1985. The Respondent filed a timely Notice of Appeal of the foregoing Final Order. The Respondent filed a Motion to Stay the Final Order with the Board of Medical Examiners, through appellate counsel, but said motion was not ruled upon by the Board of Medical Examiners at any time pertinent to the dates related to the Administrative Complaint. No petition for stay was filed by the Respondent until August 6, 1985, with the appellate court having jurisdiction of the direct appeal, when said motion was filed by appellate counsel. The District Court of Appeal, First District, entered a temporary stay of the Final Order of the Board of Medical Examiners on August 6, 1985, but dissolved the stay on August 9, 1995, upon written response from the Department of Professional Regulation. No other stay was in effect at any time pertinent to the times material to the matters raised in the Administrative Complaint filed herein. The Respondent continued to practice medicine subsequent to the filing of the Motion to Stay filed with the Board of Medical Examiners until contacted in person by investigators of the Department of Professional Regulation who informed the Respondent, on August 12, 1985, that no stay of the Final Order was in effect. At that point, the Respondent immediately surrendered his medical license to the investigators of the Department of Professional Regulation and informed said investigators that the investigators should contact his appellate Counsel because of the "Confusion." The Respondent believed, and was specifically advised by appellate Counsel, that the Final Order of the Board of Medical Examiners filed June 25, 1985, was stayed automatically by the District Court of Appeal, First District, notwithstanding the fact that the only stay entered by the District Court of Appeal, First District, was from August 6 to August 9, 1985. Not only was the Respondent advised by appellate counsel orally that such a stay was automatically effected by the filing of the Notice of Appeal with the District Court of Appeal, First District, but appellate counsel provided written confirmation of the alleged existence of such a stay to Jacksonville hospitals providing medical privileges to the Respondent. An example of such written confirmation is a letter dated July 30, 1985, to the President, Board of Trustees of St. Vincent's Medical Center advising St. Vincent's Medical Center that the Final Order of the Board of Medical Examiners was automatically stayed by operation of Section 120.68(3), Florida Statutes. In that letter, appellate counsel not only advised St. Vincent's Medical Center of the existence of an alleged automatic stay, but copied the Respondent with said advice, confirming to the Respondent that the Final Order of the Board of Medical Examiners had in fact been stayed.
Findings Of Fact The Respondent is, and was in 1987, a licensed physician in the State of Florida, having been issued license number ME 0010823. The Respondent has been continuously registered with the Drug Enforcement Agency since 1971, having been issued DEA number AS4805668. Rugby Laboratories, Inc., of New York is a distributor of pharmaceutical and medical supplies. On March 23, 1987, Rugby Laboratories, Inc., shipped to the Respondent 500 0.15 gm. tablets of Doriden and 300 30 mg. capsules of Ionamin. On July 21, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 500 mg. capsules of Placidyl. On September 4, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 15 mg. capsules of Dalmane. Doriden is a trade name for tablets containing the controlled substance glutethimide, a Schedule III drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Ionamin is a trade name for a capsule containing the controlled substance phentermine, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts to stimulate the central nervous system and elevate blood pressure. Placidyl is a trade name for a capsule containing the controlled substance ethclorvynol, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Dalmane is a trade name for a capsule containing the controlled substance flurazepam, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. The drugs described above were ordered by the Respondent for use by himself and his girl friend. The drugs described above were received by the Respondent and at least some of those drugs were used by the Respondent and his girl friend. 1/ The Respondent does not have any medical records for himself or for his girl friend. 2/ The Respondent was unable to produce any such records when the Department of Professional Regulation requested such records some time after March of 1990.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing Counts One and Four of the Amended Administrative Complaint; Concluding that the Respondent has violated subsections (q) and (r) of Section 458.331(1), Florida Statutes (1987), as charged in Counts Two and Three of the Amended Administrative Complaint; and Imposing an administrative penalty comprised of (i) an administrative fine in the amount of one thousand dollars ($1,000.00), (ii) a requirement that the Respondent attend one or more continuing education courses on the subject of legal and ethical issues associated with the prescription of controlled substances, and (iii) a public reprimand of the Respondent for the violations described above. DONE AND ENTERED this 20th day of January, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1993.
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent’s license to practice as a certified nursing assistant should be revoked or otherwise disciplined based on the charges of unprofessional conduct by stealing from a patient.
Findings Of Fact The Respondent, Tamar Laurent, is a certified nursing assistant (CNA) in the State of Florida having been issued license CNA 43605. This is the first time action has been taken by DOH and the Board to discipline her license. In December 2012 and January 2013, the Respondent was employed by Westminster Towers. While working at Westminister Towers, the Respondent was assigned to care for patient R.G. R.G. was given a cell phone by his son R.G. III. The Respondent picked up the cell phone, which was lying on the floor next to R.G.’s bed, and placed it in the drawer of a nightstand that was for and contained R.G.’s personal items. The Respondent thought the phone belonged to R.G. One week later, she went back into the drawer and took the cell phone to give to her son. While visiting his father, R.G. III realized that the cell phone was missing. R.G. III attempted to find the phone using family location tracking and looking up the call log. The information he uncovered was given to the Orlando Police Department and Westminster Towers. Nicole Daigneault was the director of nursing at the time of the incident. After receiving the information from R.G. III, she initiated an internal investigation and reported the incident as a theft to the Agency for Healthcare Administration. The internal investigation discovered that the Respondent and the Respondent’s son were in possession of the cell phone. The Respondent contacted Detective Osso of the Orlando Police Department. During an interview with Detective Osso, the Respondent admitted to taking R.G.’s cell phone. A few days after the interview, the Respondent retrieved the cell phone from her son and gave it to her attorney to return to R.G. III. During the hearing, the Respondent maintained that she did not know the cell phone belonged to R.G. and that she placed it in his bedside table because she found it next to his bed. This contradicted her own testimony during the hearing, and in the Respondent’s earlier statement to the Orlando Police Department, that she assumed the cell phone belonged to R.G. when she put it in his drawer. The Respondent knew that the cell phone did not belong to her and that she did not have a right to take it. During the hearing, the Respondent stated her supervisor, Rita, gave her permission to take the cell phone if she brought it back the next day. However, Rita Burginia, the supervisor of nursing assistants at the time of the incident, never had a conversation with the Respondent or would never authorize anyone to take the personal property of a patient. After the testimony of Ms. Burginia, the Respondent then claimed she spoke to a different supervisor, also named Rita. Nicole Daigneault can only recall one Rita working at Westminster Towers at that time, Rita Burginia. In any event, the Respondent did not return the cell phone the next day but rather kept it for a few weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding the Respondent guilty as charged; and revoking her license to practice as a certified nursing assistant; and assessing costs of investigation and prosecution. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2015. COPIES FURNISHED: Ana Margarita Gargollo-McDonald, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Tamar Laurent 1270 Woodman Way Orlando, Florida 32818 Judson Searcy, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) COURTESY COPY FURNISHED: Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the State of Florida agency responsible for regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2004). As set forth herein, the Respondent was a physician licensed to practice medicine in the area of critical need (ACN), and holding Florida license number ACN144. A physician holding an ACN licensed must practice in a facility that meets certain statutory requirements or which is designated by the State Health Officer as an entity providing health care to an indigent population, and must submit documentation establishing employment at an ACN-designated facility for licensing. The secretary of the Florida Department of Health is the state health officer. Prior to the events at issue in this proceeding, the Respondent practiced medicine as medical director at "Mariner's Medical Center" (Mariner's), which closed in October 2002. Mariner's was an approved ACN facility. After the closure of the Mariner's facility, the Respondent accepted a position in Miami at Jackson Memorial Hospital (Jackson) in October 2002; however, prior to commencing his employment, circumstances at Jackson changed and the Respondent's position at Jackson was eliminated. The Respondent's employment contract at Jackson was terminated and, he received payment under the terms of the agreement. The Respondent subsequently returned to central Florida, apparently intent on opening a medical practice. By letter to "Sandy Condo," from the Respondent dated July 17, 2003, the Respondent sought responsibility for Mariner's medical records. The letter did not further identify Sandy Condo, but the address was that of the Petitioner. The letter, which identified the practice as an entity called "Boriquen Healthcare Plus," stated as follows: This is to certify my desire for the responsibility of the medical records of Mariner's Medical Center, where I was the Medical Director until October 24, 2002. I am willing to be the custodian of these medical records and I would like the computer data base (sic) be transferred to my care. I intend to follow up on the care of all these patients. In August 2003, the Respondent opened a private practice at 931 West Oak Street, Suite 103, Kissimmee, Florida, and began treating patients. The practice was initially named "Boriquen Health Care" (reflecting the historical name for Puerto Rico), but within a few days of opening was renamed "Physician's Health Care Plus." Towards the end of August 2003, the Respondent made efforts to acquire the ACN designation for his practice. Materials seeking the designation were submitted by Glenda E. Gonzalez-Cortes, M.D., the Medical Director for Physician's Healthcare Plus, to the Board of Medicine (Board). Although the materials were received by the Board, the Board was not the agency responsible for ACN facility designations. It is unclear whether the Board forwarded the materials to the appropriate office within the Department of Health for processing. It is likewise unclear whether the Respondent understood the distinction between the "Department of Health" and the "Department of Health, Board of Medicine." In any event, the fact that materials were submitted seeking ACN designation for the practice clearly establishes that the Respondent was aware that the practice was not designated as an ACN facility. A memo dated October 2, 2003, from Melinda K. Gray, Regulatory Supervisor of the Board of Medicine, to Larry McPherson, Jr., Executive Director of the Board of Medicine, stated as follows: Attached please find a letter dated July 17, 2003, from Dr. Jose A. Gutierrez, expressing his desire to take responsibility for the medical records of Mariner's Medical Center. Based on my conversation today with Dr. Gutierrez, he again expressed his desire to take responsibility of the medical records and to follow-up on the care of these patients who received medical treatment at Mariner's Medical Center Please be advised of the following: Mariner's Medical Center is closed. Mariner's Medical Center is owned by a non-health care licensee. The medical records located at Mariner's Medical Center are currently inaccessible and are being maintained by a leasing company. Dr. Gutierrez or the patients do not have access to these medical records. Dr. Gutierrez is willing to take custody of these records, which are located on a computer hard drive, and paper records. The hard drive is necessary to be able to link between the patient's name and patient identification numbers. Dr. Gutierrez indicated he intends to follow the care of these patients. Dr. Gutierrez holds a clear active medical license in the area of critical need in the state of Florida and reflects no prior discipline. Dr. Gutierrez indicated that either the leasing company or the owner of Mariner's Medical Center would not release these records to him until the Board of Medicine reviews his request to take custody of the records and the Board grants his request. Dr. Gutierrez agrees, accepts and acknowledges the responsibility to maintain the medical records and follow-up patient care of the patients who received medical treatment at Mariner's Medical Center, beginning July 17, 2003. By letter dated October 7, 2003, from the executive director of the Board of Medicine, the custodial request was approved. The letter stated as follows: It is my pleasure to advise you that, pursuant to your request, the Board of Medicine voted on October 4, 2003, to permanently appoint you as the Custodian of Records for the former Mariner's Medical Center. This appointment is pursuant to Section 456.057(19), Florida Statutes, which authorizes the Board of Medicine to permanently appoint a person as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records. The Respondent suggests that the release of the records to his custody constituted approval of his July 17 request to provide treatment; however, the October 7 letter clearly did not address issues regarding provision of patient care. The statutory citation referenced in the letter addresses only custody, maintenance, and use of medical records. There is no credible evidence that the ongoing dialogue between the Respondent and representatives of the Petitioner constituted approval of the Respondent's request to provide medical care to Mariner's patients. Further, there is no evidence that the Respondent's practice at "Boriquen Health Care" or "Physician's Health Care Plus" was limited solely to patients who had received care at Mariner's. By letter dated November 25, 2003, to Kimberly Rivers, Regulatory Supervisor for the Department of Health, Board of Medicine, the Respondent referenced a conversation of November 21, 2003, wherein a discussion allegedly occurred regarding the requirements for ACN designation. The letter clearly establishes that the Respondent was aware that the practice had not yet received the ACN designation. The Respondent's ACN license was due to expire on January 31, 2004. On January 30, 2004, the Respondent submitted his ACN re-licensure application. Because he was not practicing at an ACN facility as of the expiration date, the ACN license was not automatically renewed. By letter dated February 5, 2004, the Petitioner notified the Respondent that his ACN license renewal could not be completed until submission of a letter from "your employer in an area of critical need." The letter referenced an enclosure that allegedly identified the ACN-designated facilities. An email dated February 16, 2004, from Joanne Davis-Trexler to the Respondent references a prior conversation and advises that the Respondent's license can not be renewed without "proof of employment in a facility approved as an Area of Critical Need." The email further advises that the Respondent's license is "delinquent" and that "practice with a delinquent license is a violation of Florida Statutes." An exchange of email between the parties indicates that subsequent to February 16, 2004, additional information, including Medicaid/Medicare billing records, was submitted by the Respondent to the Petitioner to document the patient population being served by the Respondent. On March 8, 2004, the secretary of the Department of Health, acting as the state health officer, approved Physician's Health Care Plus as an ACN-designated facility based on the staff's recommendation. On March 24, 2004, following the facility's ACN designation, the Respondent's ACN licensure was renewed. Between August 2003 (when the Respondent's practice began operating absent the ACN designation) and March 8, 2004, the Respondent failed to comply with licensure requirements limiting his practice to ACN-designated facilities. Between February 1 and March 24, 2004, the Respondent failed to comply with requirements related to timely renewal of his ACN licensure. The Respondent has moved to Texas, is no longer practicing medicine in Florida, and has placed his Florida license into a "retired" status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order issuing a letter of concern to the Respondent related to the licensing violations cited herein. DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 12th day of May, 2006. COPIES FURNISHED: Patrick L. Butler, Esquire Katharine B. Heyward, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 George F. Indest, III, Esquire Joanne Kenna, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether Petitioner's certificate of registration as a pain management clinic should be revoked pursuant to section 458.3265, Florida Statutes (2010).1/
Findings Of Fact By stipulation the parties agreed to the following: Unique is a Florida for-profit corporation; Unique is not a pain management clinic. However, Unique is registered as a pain management clinic with the Department; and Ronald and Grace Van Der Juijl are not physicians licensed under chapters 458 or 459, Florida Statutes. Unique is, therefore, not fully owned by a physician licensed under chapters 458 or 459, or a group of physicians, each of whom is licensed under chapter 458 or 459. Section 458.309(4), Florida Statutes (2009), reads, in part, as follows: All privately owned pain-management clinics, facilities, or offices, hereinafter referred to as "clinics," which advertise in any medium for any type of pain-management services, or employ a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, must register with the department by January 4, 2010, unless that clinic is licensed as a facility pursuant to chapter 395. On January 5, 2010, Unique, pursuant to section 458.309(4), submitted to the Department an application for pain clinic registration. On March 10, 2010, the Department issued to Unique, pain management clinic license no. PMC 681.4/ On October 1, 2010, approximately nine months after becoming effective, section 458.309(4) was repealed. Also on October 1, 2010, section 458.3265 became effective. Section 458.3265(1) provides, in part, as follows: (d) The department shall deny registration to any clinic that is not fully owned by a physician licensed under this chapter or chapter 459 or a group of physicians, each of whom is licensed under this chapter or chapter 459; or that is not a health care clinic licensed under part X of chapter 400. * * * (f) If the department finds that a pain- management clinic does not meet the requirement of paragraph (d), . . . the department shall revoke the certificate of registration previously issued by the department. As determined by rule, the department may grant an exemption to denying a registration or revoking a previously issued registration if more than 10 years have elapsed since adjudication. As used in this subsection, the term "convicted" includes an adjudication of guilt following a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. (Emphasis supplied.) Unique is not a health care clinic licensed under part X of chapter 400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Health, enter a final order revoking Petitioner, Unique Health Care Orlando's, license to operate as a pain management clinic. DONE AND ENTERED this 8th day of November, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2011.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent (Ex. 1). The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. _ The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent’s assisted living facility license is SURRENDERED. The Respondent agrees not to seek initial licensure nor operate any facility licensed by the Agency for a period of 5 years from the date of execution of this Agreement. 3. An administrative fine of $13,500.00 is imposed against the Respondent, but $13,000.00 of the fine is STAYED for purposes of collection as long as the Respondent does not seek any new type of licensure from the Agency. In the event Respondent seeks licensure after the period set forth above, the Respondent will pay the $13,000.00 before any application for licensure can be considered. 4. The Respondent shall pay the Agency $500.00. If full payment has been made, the cancelled check acts as receipt of payment. If full payment has not been made, payment is due within Filed July 8, 2013 11:00 AM Division of Administrative Hearings 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. The Petitioner is responsible for any refunds that may be due to any clients. 6. The Petitioner shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Petitioner is advised of Section 408.810, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 3 day of ane4 , 2013. dministration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct Sopot this Final Order was served on the below-named 3 day of wa , 2013. persons by the method designated on this Jan Mills Facilities Intake Unit (Electronic Mail) Richard Shoop, Agency Clen Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Theresa DeCanio, Field Office Manager Local Field Office Agency for Health Care Administration Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Suzanne Suarez Hurley Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Eva Tomines, Owner/Administrator Golden Haven, LLC d/b/a Golden Haven 10805 William and Mary Court Orlando, FL 32821 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
