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 At issue in this proceeding is whether Respondent, Department of Health ("Department"), acted contrary to the agency's governing statutes, rules or policies, or the bid specifications in its proposed decision to award the contract for Invitation to Bid No. DOH 12-007 (the "ITB") to Intervenor Quest Diagnostics Clinical Laboratories, Inc. ("Quest").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of the proceeding, the following findings of fact are made: On July 10, 2012, the Department issued the ITB. The ITB solicited bids for a three-year contract for the provision of clinical laboratory services to the Department and county health departments. The ITB estimated that the winning bidder will perform approximately 861,000 tests annually, which will produce sales of $9.3 million per year. Bids were received from four vendors: LabCorp, Quest, Florida Reference Laboratory, and Ecolab Group Co. The bids were opened on August 17, 2012. The Department found all four bids responsive. The ITB specified that the Department would make a single award based on the grand total of pricing for specified "core tests" for the initial three-year term and for a contingent three-year renewal term. Quest was the lowest bidder, and LabCorp was the second lowest bidder. The sum of Quest's core test pricing for the original three-year term and the contingent three-year renewal term for the relevant laboratory services was $29,555,864.96. The sum of LabCorp's core test pricing for the original three-year term and the contingent three-year renewal term was $36,059,437.52. Section 3.2 of the ITB provided definitions pertinent to the bid, including the following: Mandatory Requirements or Minimum Requirements -- means that the Department has established certain requirements with respect to proposals to be submitted by Respondent.1/ The use of shall, must, or will (except to indicate simple futurity) in this solicitation indicates compliance is mandatory. Failure to meet mandatory requirements will cause rejection of the bid or termination of the Contract/Purchase Order. Minor Irregularity -- used in the context of this solicitation and prospective Contract/Purchase Order, indicates a variation from the proposal terms and conditions which does not affect the price of the response, or give the respondent an advantage or benefit not enjoyed by other Bidders, or does not adversely impact the interests of the Department.2/ Section 4.15 of the ITB, titled "Responsive and Responsible," provided as follows: The Bidder shall complete and submit the following mandatory information or documentation as a part of the Bid Package. Any response which does not contain the information below shall be deemed non- responsive. Licensures-- Centers for Medicare & Medicaid Services, Clinical Laboratory Improvement Amendments, Certificate of Compliance and State of Florida Agency for Health Care Administration Clinical Laboratory License Staffing Plan Attachment I Bid Price Pages-- Attachment III Initial Term & Renewal term (including balance of line minimum volume discount and phlebotomy services Required Certifications, Attachment VI The ITB provided no further clarification regarding the contents of the "Staffing Plan" beyond directing the bidders to "Attachment I" to the ITB. Attachment I was titled "Specifications of Clinical Laboratory Services" and contained six pages of additional specifications regarding services included in the bidders' prices, contractor liability, minimum tasks to be completed by the winning bidder, deliverables, and other requirements. Attachment I included the following specifications regarding staffing: Staffing Levels Each prospective offeror shall include its proposed staffing for technical, administrative, and clerical support including but not limited to a Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff and statewide field representatives. The bidder shall provide hourly rate pricing, as an option to the contract, for an on-site Phlebotomist. The successful offeror shall maintain an adequate administrative organizational structure and support staff sufficient to discharge its contractual responsibilities. In the event the Department determines that the successful bidder's staffing levels do not conform to those promised in the proposal, it shall advise the successful offeror in writing and the successful offeror shall have 30 days to remedy the identified staffing deficiencies. Professional Qualification The successful bidder will be responsible for the staff affiliated with this proposal, insuring that they have the education, any professional licensure or certification which may be required by law, and experience necessary to carry out their duties. Staffing Changes The successful bidder shall staff the project with key personnel identified in the bidder's proposal, which are considered by the Department to be essential to this project. The bidder shall keep the Department notified of key staffing changes that directly impact services related to this solicitation. (Textual emphasis added.) The underscored language required the prospective offerer to include "proposed staffing" and required that the winning bidder staff the project with "key personnel identified in the bidder's proposal." The issue is whether the "Staffing Levels" and "Staffing Changes" provisions quoted above required the bidder to name the specific persons who would fill the "proposed staffing" and "key personnel" positions, or whether it would suffice for a bidder to indicate that it would fill those positions with qualified persons to be named after the bid is awarded. The term "key personnel" is undefined by the ITB. It is unclear from the specifications whether the "key personnel" referenced in "Staffing Changes" is synonymous with the "proposed staffing" referenced in "Staffing Levels." LabCorp interpreted "key personnel" to mean those persons named in the "Staffing Levels" provision: Contract Representative, Quality Control Manager, Staff Pathologist, Project Manager, Technical Support Manager, Technical Support Staff, and statewide field representatives. In its staffing plan, LabCorp provided the names of persons corresponding to each of the "Staffing Levels" positions named in the ITB, including a list of 69 field representatives and 19 sales support persons. The staffing plan submitted by Quest stated as follows: Quest Diagnostics has more than adequate staffing and capacity to meet the needs of the Florida Department of Health. Quest Diagnostics employs a Customer Solutions Manager (contract representative), Quality Assurance Manager (quality control manager), Medical Director and Senior Staff Pathologists, Project Manager, Specimen Processing Manager (technical support manager), Lab Manager (technical support staff), and Account Managers (statewide field representatives). Job descriptions for these positions are attached. Following this statement was a series of detailed job descriptions setting forth the qualifications, experience requirements and responsibilities for each of the named positions. Thus, Quest provided the Department with a set of job qualifications corresponding to the "Staffing Levels" provision of Attachment I to the ITB, but did not provide the name of a specific person to fill any of the positions. The Department concluded that Quest had sufficiently "identified" its key personnel. LabCorp did not provide the detailed job descriptions that Quest provided. For example, Sharon Kaplan is listed as "Project Manager" without further description of her qualifications, experience or duties. LabCorp contends that the ITB required the vendors to name specific persons who would fill those positions. The Department counters that the requirement to "identify" key personnel does not necessarily mean that the bidder must name the persons involved, and that Quest satisfied the ITB's requirement by "identifying" the positions it intended to fill and the qualifications for the positions named in the "Staffing Levels" section of Attachment I. Regina Taylor, the administrative service director of the Department's Bureau of Public Health Laboratories, performed the "responsive and responsible" review of the bids.3/ Ms. Taylor testified that the ITB "left the staffing plan a bit open-ended and left it up to the vendor as to how they would present it to us." The Department found both bids responsive though Quest and LabCorp each took a different approach to describing its staffing plan. Ms. Taylor stated that Quest would be able to name its personnel during the implementation process. She noted that LabCorp's bid provided the names of personnel but offered no detailed information regarding the qualifications or responsibilities of those persons beyond their job titles, whereas Quest provided detailed job descriptions without naming the persons who would fill the jobs. Ms. Taylor was not overly concerned about either company's ability to satisfy the requirements of the ITB. She stated, "Both Quest and LabCorp are national companies, so I'm sure that they have the adequate staff." The "Professional Qualification" section of Attachment I provides that the successful bidder is responsible for insuring that staff is properly qualified and certified. The "Staffing Levels" section allows the Department to review the successful bidder's staffing levels and require the bidder to remedy any deficiencies within 30 days of the Department's written notice. Ms. Taylor testified that the staffing provision section of the ITB was intended to ensure that the winning bidder had within its organization certain critical positions. The Department relied on its own experience in operating the state public health laboratory to identify the staffing requirements of the ITB. LabCorp points out that Quest was the only bidder that failed to submit a list of names of key personnel. Like LabCorp, Florida Reference Laboratory, and Ecolab Group Co. submitted the names of their key personnel. LabCorp also points out that Ms. Taylor's initial reaction to Quest's staffing plan submission was to call it "lame." Ms. Taylor's pronouncement on the quality of the Quest staffing plan was not a part of her review or of the Department's decision. Whether or not it she found it "lame," Ms. Taylor concluded that Quest's staffing plan was responsive to the bid criteria. The ITB requires the bidder to "identify" the "key personnel" with whom it proposes to staff the project. The ITB also states that the Department considers these key personnel to be "essential to this project." However, the ITB does not expressly define the term "key personnel." LabCorp named persons to fill the positions named in the Staffing Levels provision of Attachment I, which it reasonably took to be synonymous with "key personnel" referenced in the Staffing Changes provision of Attachment I. Via its staffing plan, Quest "identified" the key personnel without naming them. Given the lack of precision in these "open-ended" ITB specifications, both LabCorp and Quest made reasonable responses to the staffing requirements. Each chose a different way of "identifying" key personnel. Neither could be found to have clearly failed to comply with the bid specifications. The Department acted reasonably in finding both bids responsive. If LabCorp were correct that Quest's bid response did not comply with the staffing specifications, the question would arise as to whether Quest's deviation from the ITB specifications was a "minor irregularity" that could be waived by the Department. As noted above, the ITB defines "minor irregularity" as a variation from the bid specifications that does not affect the bidder's price or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interests of the Department. LabCorp has not identified any adverse impact on the Department that Quest's failure to name its proposed staff or key personnel would have. Indeed, LabCorp is hard pressed to state what advantage the Department gains by having the vendor name 69 field representatives and 19 sales support persons in its bid. The names are likely meaningless to the Department. "Sharon Kaplan, Project Manager" provides no more useful information than does Quest's description of the education, knowledge, and experience it requires of a project manager. The Department's concern was vendor capability to adequately staff the project, and the Department reasonably concluded that both vendors' bids demonstrated that capability. The basis for award of this bid was the lowest price. There was no scored evaluation of the ITB responses, no ranking of the staffing plans, and no effort contemplated by the Department to investigate the qualifications of the named personnel. The staffing plans submitted by LabCorp and Quest were of equal value to the Department as an indication of the vendors' understanding of the bid criteria and ability to fill the necessary positions. The ITB anticipates that the Department will deal with any staffing problems after the contract is awarded and the successful bidder begins to implement its program. LabCorp fails to identify any price advantage that Quest would gain by not naming the persons who would fill the key personnel positions, and none is apparent. Whether or not the personnel are named in the bid, the key positions would have to be filled at a cost that would presumably be roughly the same for each vendor. Again, the ITB gives the Department the power to raise staffing questions with the successful bidder and to require that problems be remedied within 30 days of written notice. LabCorp contends that Quest's failure to name key personnel gave it an advantage not enjoyed by other bidders. LabCorp argues that it went to the time and expense of preparing a detailed staffing plan, whereas Quest cut corners by submitting a set of generic job descriptions. Quest's method of setting forth its staffing plan may or may not have made its bid preparation easier, but did nothing to improve its competitive position in the bidding process. Quest's commitment to fill the required staffing positions was equal to LabCorp's. LabCorp points out that its own staffing plan included persons who are already on its payroll. LabCorp did not offer an estimate as to the likelihood that all of the approximately 102 persons named in its staffing plan would still be on its payroll by the time the company commenced performing the contract. LabCorp has no way of guaranteeing that all of those persons will be present to perform on the contract. Under the "Staffing Changes" provision, LabCorp would be allowed to substitute other qualified LabCorp employees for the named persons should the need arise. The virtual certainty of employee turnover supports the Department's position that the ITB did not require that bidders undertake the task of naming the employees who would fill the positions set forth in the "Staffing Levels" section of Attachment I. LabCorp argues that Quest's staffing plan gives it the opportunity to delay or avoid altogether hiring the staff necessary to perform the contract to the Department's satisfaction. As noted above, the inclusion of employee names in the bid could not guarantee that the named employees would still be working for LabCorp after the bid award. Quest's commitment to staff the project was no less than LabCorp's. LabCorp's argument suggests that Quest's bid should be rejected because Quest may later choose to breach the contract, which specifically requires the vendor to provide adequate qualified staff. In any procurement, there is always a remote potential that the winning vendor will breach or default. The Department's contract provides remedies for such defaults. In summary, it is found that the bids of both LabCorp and Quest met the requirements of the ITB as to staffing plans. Even if LabCorp's narrow interpretation of the ITB's requirements were correct, Quest's non-conforming response would constitute a minor irregularity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Health enter a final order dismissing Laboratory Corporation of America, Inc.'s formal written protest and awarding the contract for Invitation to Bid No. DOH 12-007 to Quest Diagnostics Clinical Laboratories, Inc. DONE AND ENTERED this 10th day of December, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 2012.
Findings Of Fact Laura Drinkwater, Respondent, was employed as a LPN by the Bond Clinic in Winter Haven, Florida in 1973 and has worked continuously at the Clinic since that time. At all times here relevant she assisted Dr. Erde, who specializes in obstetrics and gynecology. Respondent renewed her license annually from 1973 through 1976 but neglected to forward her renewal application to Petitioner in time for renewal prior to April 1, 1977. Respondent continued to be carried on the records of the Clinic as a LPN after 1 April 1977 and to perform the same duties she performed prior to 1 April 1977. On 18 October 1977 the Board of Nursing contacted the executive Director of Bond Clinic, learned that Respondent was still employed there, and advised the Executive Director (by phone) that Respondent could not continue to work as a LPN without a current license. Respondent submitted the application for renewal of her license bearing date of 6-2-77 which was received by the Board of Nursing on 31 October 1977 (Exhibit 2). By letter dated November 21, 1977 (Exhibit 1) to Respondent at an Alabama address, which had not been Respondent's address registered with the Board for several years, the Board advised Respondent that her reregistration was being denied because she had been working without a license and she could request a hearing on this denial of reregistration. This letter was never received by Respondent, nor was it returned to the Board. The Board instituted criminal proceedings, through the State's Attorney's office, against Respondent on charges stemming from her continuing to work as a LPN subsequent to the expiration of her license. This resulted in a trial at which Respondent was acquitted on 1 May 1978. On 11 May 1978 Respondent again requested reregistration as a LPN with the Board which was denied by Board's letter dated May 19, 1978 (Exhibit 3). Thereafter by letter dated May 26, 1978 Respondent requested an administrative hearing, the Administrative Complaint was filed and these proceedings followed. Upon receipt of information from the Board that Respondent was no longer licensed, the Executive Director of Bond Clinic contacted the Executive Director, Florida Board of Medical Examiners, who advised him that so long as Respondent was working under the supervision of a doctor at the Clinic she could, in his opinion, legally perform any medical task assigned by this doctor. Upon advice of counsel the Executive Director advised Respondent to remove indicia of LPN (cap, pin, etc.) and to cease giving injections to patients. Respondent gave no injections from 18 October 1977 until her acquittal in the criminal proceedings on 1 May 1978. Since Respondent had not worn the indicia of LPN before her license expired, no change in this regard was required. After 18 October 1977 Respondent's title was changed from LPN to Medical Assistant. Respondent was advised by her employer that she could continue her duties as an unlicensed assistant to the doctor, perform all duties previously performed except give injections, and after her acquittal on 1 May 1978 Respondent was authorized to resume giving injections. Several witnesses testified without objection regarding their interpretation of the Medical Practices Act, Chapter 458, Florida Statutes. Such "evidence" is disregarded as invading the province of this tribunal. All testimony of this nature purporting to show the practices of the profession is, of course, admitted. While Exhibit 5 purported to express the opinion of the Florida Board of Medical Examiners that "a licensed M.D. may employ any person to assist him in his office and in his medical practice and he may delegate to this employee any tasks which he feels are commensurate with that employee aptitude, proficiency and demonstrated abilities," the author of that opinion retracted the broad implications of the statement under cross-examination. Many unlicensed individuals are employed by medical doctors as their assistants and are given some training by these doctors. Some obviously receive more training than others and, regardless of the legality of the practice, many of these doctors assign tasks to these unlicensed employees that constitute the practice of nursing. The prevailing concept in this regard is expressed in th ultimate sentence of Exhibit 5 that "Otherwise, there is nothing in the laws pertaining to the practice of medicine which prevents any licensed physician from hiring anyone whom he chooses to perform any tasks in his office which he so designates or delegates to these employees." Unlicensed employees are normally paid lower wages than are licensed personnel and approximately one-third to one-half of the employees in doctors' offices and clinics are unlicensed.
The Issue Whether the Petitioner is entitled to be licensed as a physician assistant.
Findings Of Fact Petitioner sat for the physician assistant licensure examination administered by Respondent October 6 - 9, 1995. Petitioner passed all portions of the examination except for the “Clinical Exam” part of the examination. Because he did not pass the Clinical Exam, Petitioner failed the licensure examination. Thereafter, Petitioner requested the opportunity to review the scoring of his examination and the video that was made of the performance. Petitioner was given ninety minutes for that review. The clinical exam required the candidate to physically examine “patients” with stated vital signs and presenting symptoms. The “patients” were healthy models. The candidate's examination of each patient was closely viewed by two examiners who separately graded various components of the candidate’s performance. The performance was video taped. The video tape included audio so that the verbal instructions to the candidate and the candidate's explanation of his examination could be heard. The Petitioner challenged the scoring of 17 components of the examination. Upon review of Petitioner’s challenge, Respondent gave him additional credit for 10 of the challenged components. That additional credit raised his score from 425 to 500, still short of the 600 points needed for a passing grade. Respondent established that Petitioner was given all the credit he deserved for his performance on the clinical examination. Even if Respondent had given additional credit for all 17 components he challenged, the Petitioner would not have achieved a passing score. This test was not arbitrary or capricious. The questions used were consistent with the instructions given the candidates and similar in nature to those used in other clinical examinations. Petitioner failed to establish that he was entitled to additional credit for his performance on the Clinical Exam portion of the physician assistant licensure examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order dismissing Petitioner’s challenge to the scoring of his performance on the clinical exam portion of the physician assistant examination administered in October 1995. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of June, 1997
The Issue The issue in these cases is whether Petitioners are entitled to the Medicaid payments which they received or whether the claims filed by Petitioners were improper. At hearing Petitioners presented the testimony of Gary Allen Kitos; Joseph Namey, D.O.: Herbert Moselli; Robert Grenitz, M.D.; Mary Bone; Herbert Topol, D.O.; Sylvan Goldin, D.O.; and Mildred Martin. Topol Exhibits 1-3 and 5 were admitted in evidence. Goldin Exhibits 1-4, 6 and 7 were admitted in evidence. Topol-Goldin General Practice (GP) Exhibits 1-7 and 35-37 were admitted in evidence. The Department of Health and Rehabilitative Services (HRS) presented the testimony of Jules J. Cohen, D.O.; Morton T. Smith, D.O.; and Mildred Martin. HRS also presented the testimony by deposition of Lawrence E. Stivers and Michael W. Forsthoefel, M.D. HRS Exhibits 1-23 were admitted in evidence. Joint Exhibits 1-4 were also admitted, which include three inventory lists and four separate large boxes of patient records. The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix hereto and made a part hereof.
Findings Of Fact During 1932, Petitioners Goldin, Topol, and the Topol- Goldin General Practice Clinic were all operating out of the same facility but each billed Medicaid under a separate physician provider number. Medicaid is a joint state and federal program that is completely voluntary. In entering into a provider agreement with Medicaid, Topol, Goldin and the General Practice Clinic agreed to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and federal laws and regulations. Under the Medicaid Program, a state may limit the services provided for under federal regulations. As part of the requirements for participation in Medicaid, the State of Florida has a peer review process to monitor all providers. Peer review is a recognized process utilized by third party payors (such as Medicaid, Medicare and insurance companies) to assure that they are getting the services for which they are paying. Florida's Medicaid peer review process is modeled after the federal Medicare Program's process. In Florida approximately 7,000 physicians are enrolled in the Medicaid program at any one time. In order to monitor all of these physicians' practices, the Medicaid Program reviews those physicians whose practice exceeds the parameters of the average Medicaid physician's practice. Reviews of physicians' practices number between 60 to 85 physicians per year. Approximately 40-50% of those physicians reviewed are referred for peer review. The Medicaid review for physicians consists of a Level I review of the physician's activity in the program compared to the physician's peers. If the physician exceeds the upper limits in the Level I review, a desk review is done by medical consultants who review a "claims detail" of all claims for payment made by the provider. If further review is needed, a disproportionate stratified random sample (DSRS) of the physician's claims is obtained and the physician's patient records for those claims are obtained. The physician's records are first reviewed by a Medicaid physician consultant who determines if peer review is necessary. After a peer review is done, an in-house consultant does a line-by-line evaluation based on the peer review findings and medical necessity and makes a recommendation for denial of claims. Those claims denied are then converted into an amount of money for disallowance. The Medicaid program does not review physicians just because of the amount of money they make in the program. In September of 1981 the Medicaid Investigative Section requested updates on providers who had previously been investigated in 1977. Goldin, Topol, and the General Practice Clinic were among those providers. Cases for review were then opened for Goldin, Topol, and the General Practice-Clinic in 1982. A preliminary cursory review of the practices of Goldin, Topol, and the General Practice Clinic was prepared by a nursing consultant who recommended that the investigation go forward. During the same time period that the review of Goldin, Topol, and the General Practice Clinic was beginning, a separate review of a Medicaid recipient raised questions of pingponging (going from one doctor to another) between Drs. Topol and Goldin that would justify a further review of their practice. In February and March of 1983, Level II Review reports (desk analysis) were issued on Goldin, Topol, and the General Practice Clinic. These reports contained the Level I Reviews, documentation of the provider's 1982 Medicaid practice, complaints, conclusions, and recommendations. The Level I Review reports included in the Level II Review indicated those areas where the providers exceeded the upper limits of their peers. For example, Dr. Goldin averaged 1,998 Medicaid office visits per quarter compared to an average of 86 for other Medicaid physicians. Dr. Goldin's average exceeded two standard deviations above the average for his peers. The Level II Reviews concluded that the allegations of overutilization for Goldin, Topol, and the General Practice Clinic had been substantiated and it was recommended that they be referred to Peer Review. In March of 1983, a meeting was held to discuss these cases because of their complicated nature. At that meeting, Mildred Martin was instructed to proceed with Peer Review In preparing for Peer Review, disproportionate stratified random samples (DHRS) for Goldin, Topol, and the General Practice Clinic were obtained. A DSRS is the tabulation of the provider's activities or the amounts paid to him for each recipient during a specific period of time. It lists the recipients in ascending order of amounts paid to the provider. Total amounts of the payments made during the period are divided into five strata of the same or close to the same amounts of money. A DSRS is used to give an overall view of the physician's practice. On each DSRS the computer randomly picked 30 patients for a detailed review of their patient records. Because of the volume of practice of Goldin, Topol, and the General Practice Clinic, it would not have been fair to evaluate their entire practice using only 30 records. Therefore, HRS decided to review 7% of records of Topol and Goldin. The General Practice Clinic records were reviewed as randomly selected by the computer. In order to enlarge the sample to 7%, Ms. Martin utilized a random selection process employed by Medicare, which entailed selecting every third patient beginning from the bottom of each strata and working up until a 7% sample was achieved. This does mean that patients in the 7% samples represent the patients in each strata for whom the highest claims were made. When the same patient record appeared in two different samples, the next patient on the list was used to avoid duplication and disallowance of two of the providers for the same patient. The records selected for review were selected randomly and selected utilizing generally accepted statistical techniques. In June of 1983, Goldin, Topol, and the General Practice Clinic were requested to submit the records of those claims selected from the DSRS and the 7% sample process. When it was obvious that the records received were not complete, Ms. Martin contacted the offices of Goldin, Topol and the General Practice Clinic, requesting the missing records. Those records received from Goldin, Topol, and the General Practice Clinic were referred to the Florida Osteopathic Medical Association's (FOMA) Peer Review Committee along with information indicating the areas of concern and a letter of explanation from Dr. Goldin. The FOMA Peer Review Committee is an independent organization made up of approximately ten osteopathic physicians from various parts of the State of Florida. The FOMA contracts with third party carriers (Medicaid) to review peers. The cases supplied to the FOMA Peer Review Committee are reviewed and discussed and the committee issues its opinion on overutilization. The FOMA Peer Review Committee's findings are either no overutilization, minimal overutilization (5-20%) overutilization), moderate overutilization (20-50%) or excessive overutilization (over 50%). Upon receipt of the referral from HRS, the FOMA Peer Review Committee set up a meeting and invited Drs. Topol and Goldin. At that meeting held April 28, 1984, eight (8) physicians of the Peer Review Committee reviewed the charts and interviewed Drs. Topol and Goldin. The Peer Review Committee looked for a trend in the physicians' overall practice. The Peer Review Committee found that the records were poorly documented and difficult to read. The Peer Review Committee found that the patients were being seen more than medically necessary. It was a consensus of the members of the FOMA Peer Review Committee that there was moderate overutilization. By letters dated May 9, 1984, the FOMA Peer Review Committee notified Drs. Topol and Goldin and HRS of their findings. The medical records of Topo1 and Goldin were then sent to Dr. Michael Forsthoefel, M.D., for a line-by-line disallowance of services based upon the Medicaid rules and regulations and the Peer Review Committee's findings. Dr. Forsthoefel disallowed an amount of claims in the range of 30-35% which fell within the level of moderate overutilization (20-50%) determined by the Peer Review Committee, however, since Dr. Forsthoefel was an M.D. and not a D.O., HRS decided that in all fairness the determinations should be made by a D.O. who was a peer of the doctors being reviewed. The medical records of Topol and Goldin under review were-then sent to Dr. Morton T. Smith, D.O., for the line-by- line determination. In order to assure further fairness of the review, Dr. Smith was instructed not to review and disallow any claims by a physician that appeared on a record of the other physician being reviewed. As a result of the new review by Dr. Smith and the instructions given him, the total amount disallowed dropped to 16 or 17%. (The Transcript, p. 635, says 60-70%, but that is a typographical error and should read 16-17%). It is found that the peer review and the disallowances by Dr. Smith were reasonable and accurate. It was then necessary to apply the amount disallowed in the 7% sample to the overall Medicaid claims of Topol and Goldin. HRS performed this calculation by determining the average overpayment for the recipients in each strata sample and multiplying that average by the total number of recipients in each strata. However, because the samples were selected from those recipients in each strata with the highest claims (See Finding of Fact 32), the "average overpayment per recipient" method of extending the overpayments in each sample to the total population of claims is arbitrarily skewed. The result is that Topol and Goldin were exposed to liability greatly in excess of the total amount claimed. The more reasonable method for extending the overpayments in each sample to the total population of claims would be to determine the percentage of disallowed claims in each strata sample and to apply that percentage to the total paid in each strata. For example for Dr. Goldin in Strata I a total of $922 was paid and $30 was disallowed, or a 3.25% disallowance. Applied to the total paid in that strata of $21,600.28, a total overpayment for Strata I is shown to be $702.01. Using this method of calculation, it is determined that Dr. Goldin has been overpaid as follows: Strata I $702.01 (30/922 X 21,600.28) Strata II $2,957.64 (204/1490.92 X 21,620.18) Strata III $2,238.49 (274.24/2378.94 X 21,627.92) Strata IV $3,506.92 (617.95/3805.88 X 21,594.33) Strata V $5,886.05 (1841.36/6729.80 X 21,513.33) Total $15,291.11 Using this method of calculation, it is determined that Dr. Topol has been overpaid as follows: Strata I $1,417.87 (60.98/728.16 X 16,939.88) Strata II $2,263.31 (160.00/1199.63 X 16,966.34) Strata III $2,099.45 (225.74/1823.52 X 16,958.37) Strata IV $2,335.17 (402.96/2935.57 X 17,007.75) Strata V $4,195.75 (1358.14/5443.97 X 16,816.65) Total $12,311.55 The General Practice Clinic was treated differently because it was operated differently. The provider number issued to the General Practice Clinic was applied for and granted to Drs. Topol and Goldin as authorized agents. General Practice Clinic was actually operated and run by Mary Petruff Bone. At the General Practice Clinic, Ms. Bone prescribed and mixed antigens for allergy patients, determined what testings were to be done, and handled other medical problems of patients. Neither Dr. Topol nor Dr. Goldin had any expertise in the field of allergy treatment. The records of the General Practice Clinic were the responsibility and the product of Ms. Bone. At all times material hereto, Ms. Bone was a certified physician's assistant competent to provide services to allergy patients. A physician's assistant is not a physician. At all times material hereto, physicians' assistants could not receive a provider number from Medicaid under which they could bill the Medicaid Program. Ms. Bone billed Medicaid for her services under the General-Practice Clinic's physician provider number. Medicaid was billed for physician's services by the General Practice Clinic even though a physician did not see the patient. It is not usual and customary practice for physicians to bill for their services when they do not see the patients. The State of Florida's Medicaid Program does not authorize payment for services to a physician's assistant under the supervision of a physician. The Medicaid program paid $75,654.73 to the General Practice Clinic in 1982 under its physician provider number. Medicaid did not learn that the General Practice Clinic's billings were for non-physician's services until the Peer Review Committee met with Petitioners on April 28, 1984. For the General Practice Clinic, Dr. Goldin admitted that $40,642.85 should have been disallowed due to improper billing procedures. The $40,642.85 calculated by Dr. Goldin did not take into account any possible double billing or the fact that the clinic's services were performed by a physician's assistant. The records for the General Practice Clinic were not referred to a physician consultant because the payment denials were due strictly to noncompliance with Medicaid rules and regulations, not the overutilization findings of the Peer Review Committee. Medicaid claims for the General Practice Clinic were denied for four basic reasons: 1) No records provided to substantiate the claim; 2) improper billing for B-12 injections; 3) duplicate billing where the General Practice Clinic and Topo or Goldin billed on the same day; and 4) office visits not rendered by a physician. Antigen injections and allergy testing were not disallowed in the claims submitted by the General Practice Clinic because those services are commonly reimbursable when done by someone other than a physician under a physician's supervision. The amounts disallowed for the sample of claims for the General Practice Clinic was then applied to the overall clinic practice in the same manner that the Topol and Goldin amounts were applied to their practice in order to obtain an amount owed the HRS Medicaid Program for the disallowed services. However, again the method used by HRS to extend the overpayment amount determined from the sample to the total population of claims is unreasonable because it does not accurately project the total amount overpaid. For example, in Strata I for the General Practice Clinic, a total of $15,177.73 in Medicaid benefits were paid in 1982. Yet, using the HRS method, a total overpayment of $22,201.44 is determined for that strata, or $7,023.71 more than was ever paid in that strata. Such a result must be unreasonable. If instead the percentage method applied above is used, it is determined that the General Practice Clinic has been overpaid as follows: Strata I $12,659.76 (362/434 X 15,177.73) Strata II $12,784.78 (1447/1719 X 15,188.00) Strata III $12,578.68 (3284/4001 X 15,325.00) Strata IV $13,102.67 (4244/4969 X 15,341.00) Strata V $12,215.79 (5369/6427 X 14,623.00) Total S63,341.68 Some disallowances were made on all three provider numbers because no documentation was provided, even after Ms. Martin asked a second time. These disallowances are proper and correct because Medicaid will not pay for services where there is no documentation justifying the services. The fact that Petitioners now claim to have that documentation is irrelevant to the correctness of the disallowances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order which provides: That Dr. Herbert Topol, D.O., reimburse the Medicaid Program for $12,311.55 in Medicaid overpayments for 1982. That Dr. Sylvan Goldin, D.O., reimburse the Medicaid Program for $15,291.11 in Medicaid overpayments for 1982. That the Topol-Goldin General Practice reimburse the Medicaid Program for $63,341.68 in Medicaid overpayments for 1982. DONE and ORDERED this 23rd day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1986. COPIES FURNISHED: Herbert Topol, D.O. 1111 W. Broward Boulevard Ft. Lauderdale, Florida 33312 Sylvan Goldin, D.O. 1111 W. Broward Boulevard Ft. Lauderdale, Florida 33312 Theodore E. Mack, Esquire 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 William Page, Jr., Secretary Dept. of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Petitioners' proposed Findings of Fact Proposed Finding of Fact 3 is adopted in substance as modified in Finding of Fact 32. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 76. Proposed Finding of Fact 8 is adopted in substance as modified in Finding of Fact 77. Proposed Finding of Fact 39 is adopted in substance as modified in Finding of Fact 70. Proposed Finding of Fact 52 is adopted in substance as modified in Finding of Fact 55. . 6. Proposed Findings of Fact 1, 5, 9, 11, 12, 13, 14, 25, 26, 27, 29, 31, 32, 37, 38, 40, 41, 43, 47 and 48 are rejected as constituting argument and as being conclusory. 7. Proposed Findings of Fact 2, 4, 16, 22, 23, 24, 30, 33, 35, 36, 40, 46, 49 and 50 are subordinate to the fact actually found. 8. Proposed Findings of Fact 7, 10, 17, 18, 19, 20, 21, 34, 38, 40, 42, 44, 45 and 46 are irrelevant and/or unnecessary. 9. Proposed Findings of Fact 17, 25, 28, 32, 43 and 51 are not supported by the competent, substantiated evidence. Additionally, Proposed Findings of Fact 25, 28 and 32 are based on and refer to exhibits which were not admitted in evidence. The exhibits are attached to the proposed order and are rejected as an inappropriate attempt to supplement the record. Rulings on Respondent's proposed Findings of Fact. Each of the following proposed Findings of Fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the pro- posed Findings of Fact: 1(1); 2(58); 3(59); 4(60); 5(S1); 6(62); 7(63); 8(64); 9(65); 10(66); 11(67); 12(68); 13(69), 14(70) 15(71); 16(72); 17(60); 18(2); 19(3); 20(4); 21(5); 22(6); 24(7) 25(8); 26(9); 27(10); 28(11); 29(12); 30(13); 31(14); 32(15), 33(16); 34(17); 35(18); 36(19); 37(20); 38(21); 39(22); 40(23). 41(24); 42(25); 43(26); 44(27); 45(28); 46(29); 47(30); 48(31), 49(32); 50(33); 51(34); 52(35); 53(36) 54(37); 55(38); 56(39). 57(40); 58(41); 59(42); 60(43); 61(44); 62(45); 64(46); 65(47) 66(48). 67(49); 68(50); 69(51); 70(53); 74(73); 75(74); 76(76); 79(75); 81(78). Proposed Findings of Fact 23, 63, and 80 are irrelevant. Proposed Findings of Fact 71, 72, 73, 77 and 78 are subordinate to the facts found.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' prehearing stipulation, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been for approximately the past 15 years, a physician licensed to practice medicine in the State of Florida. He specializes in internal medicine and cardiology and is board certified in these specialities. He currently is the Chief of Cardiology and head of the Coronary Care Unit at North Ridge Hospital and has staff privileges at approximately five other hospitals in the Broward County area. At all times material to the instant case, Health Imaging, Inc., (Health) was in the business of providing ultrasound imaging services in the State of Florida at the request of physicians, hospitals and members of the community at large. The tests performed by Health were non-invasive studies that involved no health risks. They included echocardiograms, carotid ultrasounds and other studies of the heart and vascular system done with ultrasound equipment. Unlicensed technicians operated the equipment and administered the tests. Florida-licensed physicians interpreted the test results. In August of 1987, Warren Green and his wife, the owners of Health, contacted Respondent and asked him if he would be interested in contracting with Health to provide such interpretive and diagnostic services. After looking into the matter and satisfying himself that Health's equipment was of good quality and that its technicians were well qualified, Respondent entered into a written agreement (Agreement) with Health, the body of which provided as follows: This agreement made and entered into this 18 day of August 1987 by and between Health Imaging, having its principal business address at 6278 North Federal Highway, Suite 372, Ft. Lauderdale, Florida, hereinafter referred to as "HEALTH" and Jorge Flores, M.D., having his principal business address at 5700 N. Federal Highway, Ft. Lauderdale, Florida, hereinafter referred to as "DOCTOR" is made with reference to the following: WHEREAS, HEALTH is engaged in business throughout the Florida area providing ultrasound and vascular services to hospitals, physician offices and the community. DOCTOR is engaged in the business of providing medical services to his patients and patients of other doctors and hospitals in the Ft. Lauderdale, Florida area. Health desires to contract from DOCTOR for certain diagnostic interpretation services for its own patients and patients of other doctors and hospitals in the Florida area. NOW THEREFORE, HEALTH AND DOCTOR AGREE AS FOLLOWS: Equipment. HEALTH agrees to provide all necessary equipment and supplies to perform the services according to the schedule set forth on Exhibit A, attached hereto. Personnel. Health shall provide qualified technologists to operate the equipment for the services set forth on Schedule A, attached hereto. Solicitation of Employees. DOCTOR shall not during the term of this agreement nor a period of One (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by HEALTH during the term of this agreement without the prior written consent of HEALTH. Physician Interpretation Personnel. DOCTOR agrees to provide necessary qualified physicians for interpretations. Payment. For and in consideration of the services and promises contained herein by DOCTOR, HEALTH agrees to pay DOCTOR in accordance with the fee schedule set forth on Schedule A, attached hereto. All fees are to be paid in advance or at time of interpretation. Default. In the event of the default of any payment this contract may be terminated by DOCTOR. Term, Termination. The term of this agreement is for one (1) year. After Thirty (30) days either party may terminate this agreement, without cause, by giving Thirty (30) days written notice provided that in no event may HEALTH terminate this agreement unless all monies owing to DOCTOR under the terms hereof are paid in full. Compliance with Law. Both parties agree to comply with all municipal, state and federal laws and regulations. Governing Law. This agreement shall be construed under the laws of the State of Florida. Independent Contractor. DOCTOR is performing the service and duties required hereunder as an independent contractor and not as an employee, agent, partner, or joint venturer with HEALTH. Entire Agreement. This instrument shall be deemed to contain the entire agreement between HEALTH and DOCTOR and supercedes [sic] any prior or existing agreements, understandings, arrangements, terms, conditions, negotiations, or representations, oral or written, made by either party concerning or affecting the subject matter hereof. No modification of this agreement may be made except in writing, signed by HEALTH and DOCTOR. Schedule A, which was referenced in and appended to the Agreement, read as follows: INTERPRETATION FEE SCHEDULE Community, Corporate, Club and Association Screening Program Fee Schedule. EXAM: Echocardiography only FEE: One thousand dollars (1,000.00) per month for 400 studies in any thirty (30) day period. Five dollars ($5.00) per study for all studies exceeding four Hundred (400) studies in any given thirty (30) day period. Community, Corporate, Club and Association Screening Program Fee Schedule. EXAMS: (Any combination of the following) Carotid Ultrasound with Doppler and Periorbital Doppler Echocardiography Upper and Lower Extremity Doppler Study FEE: Three thousand dollars ($3,000.00) per month for any combination of the above studies, not to exceed 1,500 studies in any thirty (30) day period. Any combination of the above studies will be at a rate of Five Dollars ($5.00) per study in any given thirty (30) day period. Hospital and Physician offices fee Schedule: (Any studies performed in a hospital or Physician office, ordered by a physician) EXAMS Carotid ultrasound with doppler $65.00 Echocardiography $65.00 Abdominal ultrasound $65.00 Holter monitoring $65.00 Peripheral arterial examination $35.00 Peripheral venous examination $35.00 The Agreement and Schedule A were drafted by the Greens without the assistance of an attorney. Respondent furnished Health with interpretive and diagnostic services under the Agreement for approximately 18 months. He provided Health with no other services. Respondent was compensated $1,000 per month the first four months and $3,000 per month the remaining 14 months for his services. Most of the individuals whose test results Respondent interpreted during his 18-month association with Health were self-referred. The remainder of the test takers were referred by physicians. None had any prior professional relationship with Respondent. 1/ Respondent prepared a signed, written report of his findings for each test taker. 2/ He sent the report, along with the materials that he had reviewed in making his findings, to Health, which in turn provided the report to the test taker or to the referring physician, if there was one. 3/ Respondent did not consider the test takers to be his patients. He therefore did not keep copies of the reports he had prepared and sent to Health or the test materials upon which these reports had been based. 4/ The Greens had assured Respondent at the outset, however, that they would maintain these records and make them available to Respondent upon his request should he need them for some reason. The Greens were true to their word. Whenever Respondent asked to see a copy of a report or test materials, 5/ the Greens complied with his request. The Greens still have in their possession copies of the reports Respondent had prepared and transmitted, as well as the related test materials. While Respondent was aware that Health advertised to generate business, he was not asked to assist in any way, either as a consultant or otherwise, in the preparation or placement of any of Health's advertisements. Indeed, the first time he saw one of these advertisements was approximately five or six months after he began his association with Health. The advertisement was in a local newspaper that he happened to be reading. Some months later he saw another advertisement in the same newspaper. He found the contents of this particular advertisement to be "totally unacceptable." He therefore telephoned the Greens and complained about the advertisement. The Greens responded to Respondent's complaint by discontinuing the advertisement. A short time thereafter, upon the suggestion of a Department investigator who warned Respondent "to stay away from these people," Respondent severed his relationship with Health. He did so, not because he believed that he had done anything wrong, but because the Department, through its investigator, had expressed its concerns regarding the matter.
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 dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of January, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1993.
