The Issue Whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician, having been issued license number ME 0020714 by the State of Florida. By Final Order entered September 5, 1986, the Board of Medical Examiners, now known as the Board of Medicine, revoked the license to practice medicine of Celestino De La Heria Ledesma (hereinafter "De La Heria"). The revocation of De La Heria's license was predicated, in part, on findings that De La Heria was not competent to perform plastic surgery. Specifically, the Board's Final Order reflects that De La Heria treated a patient with "cupped" ears by suturing that patient's ears to the patient's head. At all times material hereto, Respondent practiced medicine at her office located at 1995 East Fourth Avenue, Hialeah, Florida. Respondent purchased the building in 1982. Respondent had her office, consisting of two examining rooms, an office and a bathroom, on one side of the building. At the front entrance to Respondent's office, was a waiting room for patients. Until about 1987, Respondent lived in the other half of the building that housed her office. That portion of the building consisted of three rooms of moderate size, an office, and two bathrooms. There was an additional exterior door, which opened onto Fourth Avenue, in what was initially the residential side of Respondent's office building. Respondent has known De La Heria since about 1951, when they met as students at the University of Havana, in Cuba. Respondent was subsequently the physician for De La Heria's former wife and his daughters. Additionally, De La Heria's family had visited Respondent in her home. Prior to October 1, 1987, Dr. Carlos Garrido, a practicing physician in the Miami area, De La Heria, and a mutual friend of theirs, approached Respondent to discuss renting from her the space in which she lived in order to open a plastic surgery clinic. One meeting occurred among those four individuals. No formal arrangement resulted from that meeting. Subsequent to that meeting, Respondent and De La Heria had discussions about De La Heria renting the space from Respondent to open a plastic surgery clinic. Respondent knew that De La Heria either was having problems with his medical license or no longer had a license to practice medicine. She told De La Heria that he would have to obtain someone's medical license in order to operate the plastic surgery clinic and in order to lease space for a medical office from her. De La Heria produced a copy of the medical license of Dr. Garrido. Respondent moved out of the space in which she was living. On October 1, 1987, Respondent entered into a business lease agreement, not with De La Heria and not with Garrido but with De La Heria's son, in which Respondent leased the space in which she had previously resided to De La Heria's son for the sum of $600 per month. The premises being leased were to be used to establish a plastic surgery clinic, although the lease itself referred to the premises being used as a medical clinic. No evidence was offered to show that De La Heria's son was a licensed physician. De La Heria was not a party to the lease agreement, and Garrido was not a party to the lease agreement. Although Garrido never practiced medicine at that location, an occupational license for the leased premises was obtained in Garrido's name, the electrical service was established in Garrido's name, and telephone service was obtained in De La Heria's name. The copy of Garrido's medical license was hung in De La Heria's office, and a sign was placed on De La Heria's desk indicating that he was a doctor. Only Respondent's name appeared on the outside of the building. After October 1, 1987, De La Heria began to practice medicine in the portion of the premises leased to De La Heria's son by Respondent. Respondent knew that De La Heria was practicing medicine although Respondent knew at the time that De La Heria was either having problems with his medical licensure or no longer had medical licensure. Respondent specifically questioned De La Heria about his licensure problems when the two passed in the waiting room area that they shared. On a prior occasion, Respondent discussed De La Heria's licensure problems with his ex-wife. On one occasion subsequent to October 1, 1987, Garrido stopped by Respondent's office building to visit and made a comment to Respondent about De La Heria's lack of licensure. By Respondent's own admission, she knew something was not proper when De La Heria had the lease placed in his son's name. After October 1, 1987, Respondent's office hours were Monday, Wednesday, and Friday, from 2:00 p.m. until 7:00 p.m. De La Heria's office was open in the mornings, Monday through Friday. Although Respondent's office hours were in the afternoon, on occasion she would come to the office in the morning. When she did, she would enter through the waiting room which she shared with De La Heria. When she did, she saw patients sitting in the waiting room waiting for De La Heria. On those occasions, when she saw De La Heria in the office, he was wearing surgical scrubs. After October 1, 1987, Orfelina Guerra, Respondent's employee who performed receptionist/secretarial duties for Respondent in the afternoons, requested Respondent's permission to work for De La Heria in the mornings, answering the telephones. Respondent gave her permission. After October 1, 1987, only De La Heria practiced medicine in the leased portion of Respondent's building. Respondent knew that no other physician was practicing medicine in the leased portion of her building. Respondent knew that De La Heria was treating patients in the leased portion of her building. In early 1988, the Department of Professional Regulation was advised that De La Heria was practicing medicine at 1995 East Fourth Avenue, in Hialeah, Florida, while De La Heria's license was in a revoked status. Georgina Jorge, an investigator with the Department assigned to the matter, went to Respondent's office building. On the exterior of the building, she observed Respondent's name along with two telephone numbers. She then attempted to telephone De La Heria at one of those telephone numbers and was advised that he was not available at that particular moment. She next contacted Maria Zerquera, a police officer with the State Attorney's Office, and requested that Officer Zerquera go to De La Heria's office in an "undercover" capacity in order to determine whether De La Heria was practicing medicine without a license. Zerquera telephoned Respondent's office to arrange an appointment with De La Heria. Orfelina Guerra answered the telephone and advised the caller to call back using a different telephone number. When Zerquera did so, Orfelina Guerra answered that telephone and gave Zerquera an appointment to see De La Heria on February 19, 1988, at 10:30 a.m. When Zerquera arrived for her appointment, there were patients waiting in the waiting room. A short time thereafter, De La Heria came into the waiting room, introduced himself to Zerquera as "Dr. De La Heria" and took her into the inner office area. During the course of this appointment, De La Heria represented to Zerquera that he could remove a scar on Zerquera's right eye and could "fix" Zerquera's neck. He offered to do the right eye immediately free of charge and suggested that Zerquera return later to have the work performed on her neck for which he was going to charge "a couple of thousand dollars". Officer Zerquera was taken by De La Heria into an operating room, which appeared to be fully equipped for surgery. In the operating room, Zerquera saw gauze with blood on it from an eye operation De La Heria had just performed on another woman. When Officer Zerquera identified herself to De La Heria, the other investigators waiting outside entered De La Heria's office. While there, they found in De La Heria's office four blank prescriptions which had previously been signed by the Respondent. De La Heria directed Orfelina Guerra to contact Respondent who then came to the office. Respondent admitted that the four prescriptions had been signed by her in blank. She stated that she had left about six or seven presigned blank prescriptions because she was going on vacation and some of her patients might need medication on an emergency basis. Only four of the "six or seven presigned blank prescriptions were found. Only licensed physicians are authorized by law to issue prescriptions. The individual who makes the judgment as to what medication is necessary, based upon seeing the patient and gathering data, is practicing medicine. Even in instances where patients come in with an established diagnosis, medical evaluation is necessary to determine whether the person continues to require the same medication. Each time a prescription is given, a medical judgment is made. Delegating the prescribing activity to unlicensed individuals can result in harm to the patient. The practice of plastic surgery is the practice of medicine. The prescription of plastic surgery for a human deformity is the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT a Final Order be entered finding Respondent guilty of the allegations contained within the Amended Administrative Complaint filed against her and permanently revoking Respondent's license to practice medicine in the State of Florida. DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida. LINDA M. RIGOT 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 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-6469 Petitioner's proposed findings of fact numbered 1-9 and 12-26 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the evidence in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as being unnecessary for resolution of the issues in this cause. Petitioner's proposed finding of fact numbered 27 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or a conclusion of law. COPIES FURNISHED: Dorothy Faircloth Executive Director, Board of Medicine Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Stephanie A. Daniel, Chief Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ana D. Hernandez, M. D. 1995 East 4th Avenue Hialeah, FL 33010
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Department of Health, Division of Medical Quality Assurance, Board of Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of medicine pursuant to Section 20.43 and Chapters 455 and 458, Florida Statutes. Respondent, Lazaro Guerra, is, and was at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0029249. Respondent is board-certified in orthopedic medicine. From on or about November 22, 1993 through at least October, 1994, Respondent was the supervising physician for Mariano Martinez, a certified physician's assistant, who was accorded clinical privileges at Coral Gables Hospital, a health care facility located at 3100 Douglas Road, Coral Gables, Florida. On one occasion in or about August 1994, while making a routine floor inspection at the hospital, Jan Bennett, Director of Risk Management at Coral Gables Hospital, observed Mr. Martinez wearing a laboratory coat embroidered "Dr. Mariano Martinez, Orthopedic Surgery." Ms. Bennett also overheard a member of the staff address Mr. Martinez as "doctor," without Mr. Martinez's correcting the staff member. Apart from this isolated occurrence, Mr. Martinez was not otherwise observed to have worn such a coat, or to have been addressed as doctor, and there is no proof that Respondent knew, observed, fostered, or condoned Mr. Martinez's behavior. Following the incident in question, Ms. Bennett looked at medical records on the floor, as well as records for patients that had been discharged, to see if Mr. Martinez's written orders had been countersigned by Respondent (evidencing his review) within seven days. According to Ms. Bennett, she did find medical records that had not been countersigned by Respondent within seven days; however, she did not address the number of occasions she found that Respondent had failed to countersign Mr. Martinez's written orders, and she did not produce or identify any such records at hearing. Indeed, the only proof presumatively offered to address such particulars were Physician's Orders for two patients (identified as Patient 1 and Patient 2), received into evidence (without objection) as Petitioner's Exhibit 4, pages 8-10; however, these records were not further discussed or identified at hearing, and the records for Patient 2 relate to an admission in August 1993, a time Respondent was not shown to have been a supervising physician for Mr. Martinez. Under the circumstances, the proof, at best, supports the conclusion that Respondent failed to countersign Mr. Martinez's written orders regarding one patient (Patient 1), within seven days. With regard to such failure, Respondent observed that he certainly never "knowingly fail[ed] to sign or countersign any written patient medical records that were prepared by Mr. Martinez." Rather, Respondent averred that he had an established procedure whereby he would countersign Mr. Martinez's written orders as they made rounds together, or, if Mr. Martinez made rounds on his own, Respondent would make rounds the next day and countersign Mr. Martinez's orders. If the patient had been discharged in the interim, the patient's records were transferred to the Medical Records Section (from the floor) for storage, and the Medical Records Section had an established protocol whereby the staff would flag (mark) the records that required Respondent's countersignature. With regard to Respondent's failure to countersign Mr. Martinez's orders for Patient 1, there is no (known) explanation; however, as likely an explanation as any other is that the Medical Records Section failed to mark the orders and Respondent, therefore (inadvertently) failed to countersign them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating Subsection 458.331(1)(x), Florida Statutes, as alleged in Count One of the Administrative Complaint, but which withholds the imposition of any penalty for such violation. It is further RECOMMENDED that the final order find Respondent not guilty of the violation alleged in Count Two of the Administrative Complaint. DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 24th day of September, 1999.
The Issue Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed. DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January 1995.
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 issued the attached Administrative Complaint to the Respondent to revoke its health care clinic license due to Respondent’s principal being ineligible for licensure or exemption from disqualification from licensure pursuant to Section 435.07, F.S.. (Ex. 1) The Respondent filed a Petition for Formal Hearing and the case was referred to the Division of Administrative Hearings. During the proceedings, the Agency filed a Motion to Relinquish Jurisdiction based upon the lack of any material facts in dispute. In response, the Administrative Law Judge issued an Order to Show Cause to Respondent, followed by an Order Closing File and Relinquishing Jurisdiction stating that the Agency was authorized to enter a Final Order against the Respondent. (Ex. 2) Based upon the foregoing, it is ORDERED: 2. The Administrative Complaint is UPHELD and the Respondent’s health care clinic license is REVOKED. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 5. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 1 Filed July 23, 2013 10:20 AM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this 727 ~day of key , 2013. Elizabeth Dudek, Secretary Agency for Hegith Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and this 2 7A of this Final Order_was | was served on the below-named persons by the method designated on this ~ Jad a, » 2013. Richard Shoop, Agency Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas Jones, Unit Manager Health Care Clinic Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Robert Dickson, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Warren J. Bird, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Harry Vassilakis, Registered Agent Medicaid Contract Management All Care Chiropractic & Wellness, Inc. Agency for Health Care Administration 505 Deltona Boulevard, Suite #103 (Electronic Mail) Deltona Florida 32725 (U.S. Mail) E. Gary Early Harry Vassilakis, Unit Manager Administrative Law Judge All Care Chiropractic & Wellness, Inc. Division of Administrative Hearings 807 Beville Road (Electronic Mail) South Daytona, Florida 32119 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
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 parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. The Agency’s Administrative Complaint is UPHELD and the above-named Respondent’s license has been SURRENDERED. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent facility is closed and will remain closed. Respondent surrendered its original health care clinic license to the Agency together with the executed settlement agreement, and the license is deemed cancelled and void effective May 15, 2014. The Respondent admits the allegations of facts contained in the Administrative Complaint and has waived its right to have an administrative proceeding. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 5. The Respondent is given notice of Florida law regarding unlicensed activity. The 1 Filed November 19, 2014 3:17 PM Division of Administrative Hearings Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. 6. The Respondent shall pay the Agency an administrative fine of $5,000.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of this 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 number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 7. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are hereby dismissed, and the above-styled case is hereby closed. ORDERED at Tallahassee, Florida, on thisee2f day of Ochlboe , 2014. Elizabeth Didek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc ry of this Ping, Order was served on the below-named persons by the method designated on this ay of Eee , 2014. spa j Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Esquire Facilities Intake Unit Health Care Clinic Unit Manager Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Finance & Accounting Arlene Mayo-Davis, Field Office Manager Revenue Management Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) Electronic Mail Katrina Derico-Harris Warren J. Bird, Assistant General Counsel Medicaid Accounts Receivable ; Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) | (Electronic Mail) Shawn McCauley Juan Pablo Broche, Esquire Medicaid Contract Management Quintero Broche, P.A. Agency for Health Care Administration 75 Valencia Avenue, Suite 800 (Electronic Mail) Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
