The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
The Issue The issues in this case are: (1) whether Petitioner’s application pursuant to Section 458.315, Florida Statutes, for a temporary certificate to practice in an area of critical need should be granted or denied; and (2) whether Petitioner is entitled to withdraw his application prior to action by the Board of Medicine on the merits of the application.
Findings Of Fact Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. [Emphasis added.] The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need by DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case granting Petitioner’s application for a temporary certificate to practice medicine in communities of Florida where there is a critical need for physicians. DONE AND ENTERED this 22nd day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 22nd day of April, 2004.
Findings Of Fact At all times material hereto, Respondent Jorge Macedo, 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 1954, and practiced in Brazil for one year thereafter. He then came to the United States, where he has practiced from 1956 until the present date. On February 13, 1976, Maury Braga came to Respondent's office in Hialeah, Florida. Respondent had never before met Braga and had never heard of him. 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, Jorge Macedo, M. D., of 1060 E. 4th Ave., Hialeah, Florida, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Falcudade de Ciencias Medicas de Santos and did lawfully practice the pro- fession 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 Tallahassee7 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 ================================================================= AGENCY FINAL ORDER ================================================================= BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NO. 82-114 JORGE MACEDO, M.D. License Number: 10095 Respondent. /
The Issue The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Findings Of Fact Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education. His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community. In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment. On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida. This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation. Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license. On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence. A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence. The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988. The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes. In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery. Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification. At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept. Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation. Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire. In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians. The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license. In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987. In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3. In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost. Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal. Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials. A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out. A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent. Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem. After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail. According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal. Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate. As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary. According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
Recommendation Based upon the findings of fact made and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses this administrative complaint. DONE and ENTERED this 13th day of February, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, 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 13th day of February, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case. Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13-17 are subordinate to facts found. Respondents's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty. Paragraphs 11-20 are subordinate to facts found. Copies furnished: Wellington H. Meffert II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara C. Wingo Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Ernesto C. Jaranilla, M.D., a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0065787. Respondent's last known address is 633 Baker Street, Rochester Hills, Michigan 48307. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes. The State of Michigan Department of Commerce, Board of Medicine, is the licensing authority for the State of Michigan. On or about May 9, 1994, the State of Michigan Board of Medicine issued a final order requiring Respondent to pay a fine of $1,000.00 within 60 days, placed Respondent's license on probation and required him to complete 100 hours of approved continuing education credits. As a result of the action of the Michigan Board of Medicine, Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. Respondent did not notify the Florida Board of Medicine within 30 days of the action taken by the State of Michigan against his license to practice medicine. Instead, Petitioner's personnel learned of Respondent's transgression by way of a report from the Federation of State Medical Boards dated April 19, 1996. The report indicated that the Michigan disciplinary action had been terminated by order dated January 26, 1996.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing discipline upon Respondent's license in this cases as follows: An administrative fine of $750 for each Count of the Administrative Complaint for a total of $1500. Suspension of Respondent's license to practice medicine in the State of Florida with such suspension to be terminated upon Respondent's payment of the administrative fine, and successful compliance with such other terms and conditions as may be prescribed by the Florida Board of Medicine, inclusive of Respondent's personal appearance before the Florida Board of medicine for presentment of proof of his reinstatement to practice medicine in the State of Michigan and to certify his completion of any Board prescribed course for practitioners who have failed to comply with reporting or other obligations to the Board. DONE AND ENTERED this 8th day of January, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Kevin w. Crews, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, FL 32317-4229 E. Jaranillia, M.D. 301 State Street Harbor Beach, MI 48441 Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street Tallahassee, FL 32399-0770 Jerome Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32309 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what penalty should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that: On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims. Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of $14,866.80. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order: [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses. * * * Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case: Rejected because it is more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a conclusion of law than a finding of fact. COPIES FURNISHED: David G. Pius, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jose Minaya, M.D. 536 North 19th Street Montebello, California 90640 Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane Arcadia, California 91006 Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II 9500 Norwalk Boulevard Santa Fe Springs, California 90670 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds 1 The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”’], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7/_ day of Alauacte , 2014. Elizabeth Dudak, Secretary th Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issue is whether the medical license of Ahmed M. Elmariah, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Ahmed M. Elmariah is a licensed physician in Florida, holding license number ME 0027974 issued February 11, 1976. Dr. Elmariah practices in Panama City, Florida, at 1018 Harrison Avenue. Patient E.G. saw Dr. Elmariah during April or May, 1988, and thereafter until July 18, 1988. On July 18, 1988, at approximately 1:00 p.m., E.G. called Dr. Elmariah's office and requested that his medical records be sent to another doctor. He was told to come in and sign a release form that afternoon. At about 4:30 p.m. that day, E.G. went to Dr. Elmariah's office and was told by the office person, Lisa, that the medical records would not be sent because Dr. Elmariah had instructed that the records not be released. E.G. then verbally requested that the records be given to him. The office personnel refused to give him the records. E.G. talked to Dr. Elmariah personally and he would never give a reason for his refusal to release E.G.'s medical records. E.G. finally filed a replevin action and filed a complaint with DPR. DPR Investigator William Taylor attempted to serve a subpoena for E.G.'s records. After several attempts by DPR to serve the subpoena were futile, the Sheriff's Office served the subpoena on November 16, 1988. The subpoena directed that the medical records of E.G. be made available for inspection and copying by a DPR Investigator at Dr. Elmariah's office on November 22, 1989. Mr. Taylor called Dr. Elmariah on November 22, 1988, to make sure that the doctor was going to honor the subpoena. Dr. Elmariah's wife said the records had been taken to Tallahassee on November 21, 1989, and would not be available to Mr. Taylor. Mr. Taylor was also told that Dr. Elmariah would not be in his office to speak to Mr. Taylor. Mr. Taylor checked with DPR in Tallahassee and determined that the records had not been delivered. He then called Dr. Elmariah's office again and was told that Dr. Elmariah was in, but would not speak to him. Mr. Taylor was told that Dr. Elmariah said that the documents would not be available and the subpoena would not be honored. Dr. Elmariah never furnished the requested medical records of E.G. and the subpoena was never honored. Dr. Elmariah has been the subject of disciplinary action by the Board of Medicine in the past. On October 14, 1988, the Board of Medicine issued its Final Order in DOAH Case No. 86-4527 (DPR Case Nos. 0053824 and 0057164). The Final Order was filed on October 24, 1988, with the Department Clerk. The Final Order suspended Dr. Elmariah's license to practice medicine in the State of Florida for at least one year and conditioned reinstatement on Dr. Elmariah's appearance in front of the Board of Medicine to demonstrate his ability to safely engage in the practice of medicine. These two previous cases involved Dr. Elmariah's attempts to get hospital privileges by a pattern of fraudulent misrepresentations to hospitals. Dr. Elmariah was served a copy of the Final Order by certified mail on November 4, 1988. On November 5, 1988, DPR Investigator Alfred Clum went to Dr. Elmariah's office to serve a subpoena and to pick up Dr. Elmariah's license pursuant to the suspension order. Mr. Clum was first told that Dr. Elmariah was in the office. After Mr. Clum identified himself and the purpose for his visit, he was told that Dr. Elmariah was not in and that he would not see anyone without an appointment. The office person, Lisa Sims, refused to accept the subpoena and the suspension documents. On November 8, 1988, DPR Investigator Paul Bratton went to Dr. Elmariah's office to deliver a letter from Mr. Taylor regarding the suspension. He arrived at 9:52 a.m. and found a note on the door saying the office was closed. The door was open, so Mr. Bratton entered the office. He served the suspension documents on the woman at the desk. She tried to get him to take the documents back and he refused. She refused to give her name. When he left, the woman followed him to the door and threw the documents out the door and down the steps. On November 16, 1988, Mr. Clum returned to Dr. Elmariah's office to pick up his license. He was told that Dr. Elmariah was not there. He tried to leave the documents with the receptionist, but she refused to accept them. He left the documents, including the Final Order, on the woman's desk. Dr. Elmariah filed an Emergency Motion to Stay Final Order with the Board of Medicine. The Board of Medicine considered the Emergency Motion to Stay Final Order on December 3, 1988. Dr. Elmariah was advised by letter dated November 30, 1988, that the meeting would occur for consideration of the motion. Further, the November 30, 1988, letter advised Dr. Elmariah that "unless and until you have an order from the Court or from the District Court of Appeal granting you a stay, your license to practice medicine is suspended. Continuing to practice medicine on a suspended license could result not only in additional disciplinary proceedings against your license, but to criminal penalties as well." After consideration at its December 3, 1988, meeting, the Board of Medicine denied the Motion to Stay Final Order. The order denying the stay was entered on December 20, 1988. Dr. Elmariah then filed several more motions-- Verified Motion for Rehearing and Reconsideration of Order on Motion to Stay the Final Order; Verified Motion and Affidavit for Disqualification of Attorney Daniel and All Participating Attorneys for Petitioner; and Verified Petition and Motion for Rehearing and Reconsideration and to Rescind, Relieve from and/or Modify Final Order. These motions were considered by the Board at its February 4, 1989, meeting and all were denied by written order dated March 25, 1989. Dr. Elmariah filed a Motion for Stay with the District Court of Appeal, First District, on April 6, 1989. The Court denied the motion for stay by written order dated May 31, 1989. Patient L.E. was a patient of Dr. Elmariah's during 1988 and 1989. L.E. saw Dr. Elmariah during January, February, and March, 1989, while Dr. Elmariah's license was suspended. Dr. Elmariah never told L.E. that his license was suspended and he continued to see L.E. as a patient at his office. Patient W.W. was a patient of Dr. Elmariah's and last saw the doctor in February or March, 1989. The visits to Dr. Elmariah, at his office, were regularly scheduled visits at two week intervals. Dr. Elmariah never told this patient that his license was suspended. Patient G.L.M. was also a patient of Dr. Elmariah at his office in Panama City. He saw Dr. Elmariah on December 15 and 22, 1988, and January 19, 1989. Dr. Elmariah never told him that his license was suspended. On December 13, 1988, Dr. Elmariah was arrested for contempt and brought before the Honorable Thomas R. Ellinor, County Court Judge, in the replevin action filed by E.G. to get his medical records. The transcript of that contempt hearing clearly shows that Dr. Elmariah knew that his license had been suspended and knew that no stay had been issued. The contempt arose from Dr. Elmariah's failure and refusal to appear for duly noticed hearings and to respond to subpoenas. The judge made Dr. Elmariah's duty to appear at hearings very clear and Dr. Elmariah acknowledged that he understood his obligation in that regard and would appear in the future. Dr. Elmariah has engaged in a flagrant course of conduct to evade and avoid the lawful orders, subpoenas and notices in gross disregard for the laws of the State of Florida and in gross disregard for the obligations imposed upon him for the privilege of practicing medicine in this state. He has actively resisted enforcement of the Final Order suspending his privilege and license to practice medicine. He has openly and contemptuously refused to cease practice pursuant to the suspension order and he has refused to surrender his medical license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order finding Ahmed M. Elmariah, M.D., guilty of all violations charged in the Administrative Complaint, and revoking the medical license of Ahmed M. Elmariah, M.D. DONE and ENTERED this 22nd of August, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 22nd day of August, 1989. COPIES FURNISHED: Ahmed M. Elmariah, M.D. Post Office Box 16473 Panama City, FL 32406-1473 Robert D. Newell, Jr. Attorney at Law 817 North Gadsden Street Tallahassee, FL 32303-6313 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
