The Issue May the Department of Children and Family Services properly terminate Respondent as a Medicaid provider pursuant to its letters of March 6, 1996, and the same letter bearing the date, April 12, 1996? If the Department's termination was unlawful, may Respondent be awarded reinstatement and back "wages?" If the Department's termination was unlawful, may Respondent be awarded attorney's fees?
Findings Of Fact The Motion to Dismiss On March 6, 1996, the Agency served a termination letter upon Respondent Charest. Because that letter was not sent certified mail, the same letter was re-dated April 12, 1996, and served by certified mail. Respondent Charest timely requested formal hearing, pursuant to Chapter 120, Florida Statutes, but there was no request that a formal hearing be conducted within 90 days pursuant to Section 409.335, Florida Statutes. The Preliminary Statement, above, sets out the procedural history of this case before the Division of Administrative Hearings and is incorporated here by reference. The 1996 termination letter(s) provided, in pertinent part, as follows: This letter is to notify you of your termination as a Medicaid provider for a term of three (3) years. This termination also applies to your company, Family Choice Support Services. Since you were suspended effective May 1, 1995, the suspension of three years will run from that date, making you eligible to reapply for certification as of May 1, 1998. This termination is pursuant to §409.913(9)(b), Florida Statutes. Termination is authorized by the fact that you have violated the provisions of §409.13(8) by: Failing to provide Medicaid-related records on a timely basis as required under §409.913(8)(g). Failing to abide by the requirements of state law as required by §409.913(8)(h), in that you violated §409.919(2)(e) by offering Jackie Fagan compensation in return for referring clients to you. Also by submitting false or misleading information in connection with your application to qualify as a support coordinator eligible for Medicaid reimbursement in violation of §409.919(2)(g). Submitting applications and requests for reimbursement containing materially false or incorrect information in violation of §409.913(8)(j) and (k). (emphasis supplied) Paragraph 3 of the termination letters, alleging that Respondent had submitted requests for reimbursement containing materially false or incorrect information in violation of Section 409.913(8)(j) and (k), was orally dismissed by the Agency at the commencement of formal hearing. Respondent Charest previously had requested formal hearing in DOAH Case No. 95-3469. Charges in that case arose from April 24, 1995, and May 23, 1995, suspension letters similar to the March 6, 1996, and April 12, 1996, termination letters in the instant case. At the commencement of that formal hearing, Mr. Charest had moved to dismiss DOAH Case No. 95-3469 because the administrative complaint (the 1995 suspension letters) were based on an unadopted Agency rule. The DOAH Hearing Officer entered a December 15, 1995, Recommended Order which recommended that the Agency grant the Motion to Dismiss. The August 7, 1996, Agency Final Order read, in pertinent part, The department's certification termination letter cites only violation of certain unadopted rules. No other authority . . . is provided . . . . I must, therefore, concur . . . that the termination letter is facially deficient. Accordingly, it is ORDERED that the administrative action against petitioner's provider certification is dismissed. (emphasis supplied) At formal hearing in the instant case, Respondent moved to dismiss the 1996 termination letters. In part, he asserted that the formal hearing of June 11, 1997, was not timely, pursuant to Section 409.335, Florida Statutes.4 Respondent further asserted that the 1996 termination letters were vague because, pursuant to Section 409.913(9)(a), a suspension cannot be for more than one year, and the current charging documents were insufficient to advise him if he were subject to suspension or termination.5 The remaining thrust of Respondent's oral Motion to Dismiss was that due process had not been afforded to him because he had been given inadequate notice of the charges in the March 6, 1996, and April 12, 1996, termination letters because Sections 409.13(8), 409.919(2)(e), and 409.919(2)(g) do not exist. The Agency conceded that its citation to Section 409.13(8) in the second sentence of the 1996 termination letters was in error because the correct citation should have been to Section 409.913(8) Florida Statutes. The Agency also conceded that the termination letters' citation to Section 409.919(2)(e) and 409.919(2)(g) also should have been to 409.920(2)(e) and 409.920(2)(g), respectively. The undersigned orally denied Respondent's motion to dismiss and specifically found that there was clear and adequate pleading within the 1996 termination letters at least as to the statutory citations within numbered paragraphs 1 (Section 409.913(8)(g), Florida Statutes) and numbered paragraph 2 (Section 409.913(8)(h), Florida Statutes), and that under the circumstances of this case, the letter as a whole otherwise gave adequate notice of the charges Respondent would be called upon to defend against. However, the parties were also instructed that the issue of the statutory discrepancy in the 1996 termination letters could be re-visited in the parties' post-hearing proposals. The Merits Respondent began working as a Medicaid provider and support coordinator during February 1993. On June 20, 1993, Respondent signed a Florida Medicaid Provider Enrollment Application for certification as a Medicaid provider and was certified. On this application, Respondent answered "yes" to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pretrial intervention program?" Respondent was certified, despite his affirmative answer, which related to a pre-1993 assault charge based on a dispute with a neighbor. No further Agency action ensued. Annual re-applications and re-certifications of provider status were anticipated, but due to creation of the Agency's new Geographic Service District 13, in order to comply with increased screening by the abuse-prevention registry, and because of missing paperwork for 1994, the Agency asked Respondent to apply for re-certification in December 1994. On December 13, 1994, Respondent signed a new Florida Medicaid Provider Enrollment Application for recertification. At that time, he answered "No," to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pre-trial intervention program?" The Agency did not pursue the discrepancy between Respondent's June 20, 1993, and December 13, 1994, applications. However, a 1995 "screening," pursuant to Chapter 415, Florida Statutes, alerted Agency Medicaid personnel to the problem. When requested, Respondent provided the Agency with a 1993 "Disposition of Charges" on a domestic violence charge against him. That document is not in evidence, but apparently, it did not show that any pre-trial intervention had taken place and suggested that the case was dismissed. The Agency did not pursue the matter. At formal hearing, official recognition was taken of an "Announcement Of No Information" entered December 8, 1993, in State of Florida v. Charest, Marion County Court Case No. 93- 9765MM. Therein, the State Attorney in and for Marion County announced that the case would not be prosecuted on the basis that the defendant, (the Respondent herein) participated in, and successfully completed the Salvation Army Probation Pre-Trial Intervention Deferred Prosecution Domestic Violence Program. Respondent maintained that he had never received a copy of the Announcement of No Information and that no one had adequately informed him that the December 1993 domestic violence charges against him were not simply dismissed. However, he also admitted that he had been required to go to at least one session of counseling as a result of a 1993 domestic violence case and that this had occurred since he had filled out his original June 20, 1993, application. Considering Respondent's testimony concerning his work experience with the Department of Corrections and his 20 years as a mental health counselor, the undersigned does not find credible Respondent's protestations that he did not know that he had been involved in December 1993 in a pre-trial intervention program for domestic violence. Therefore, it is found that Respondent knowingly submitted false or misleading information on an application to the Medicaid Program for the purpose of being accepted as a Medicaid provider. Due to the vulnerability of the mentally challenged clients served by support coordinators, a charge of domestic violence and entry into a pre-trial intervention program are material to Respondent's fitness as a provider of services for the Agency's clients and should have been disclosed. Support plans are necessary to determine what services are appropriately reimbursable by Medicaid. The Agency experienced an ongoing problem in that most of its providers filed their "support plans" late, pursuant to Section 409.313(8)(g), Florida Statutes. Respondent's company submitted untimely reports in a greater degree than any other similar provider. Respondent was only one of two principals in his company. The Agency requested a Corrective Action Plan from Respondent, due April 1, 1994. Respondent's company continued to have chronically late plans after April 1, 1994. Respondent was cautioned on several occasions about the importance of timely submission of support plans, more particularly in a January 31, 1995, letter. Despite Respondent's hiring someone to assist him, five of eight reports attributable to him were still late just prior to his termination. Jackie Fagan is a staff member of the Key Learning Center operated by the Citrus County Association for Retarded Citizens. She was employed in that capacity in 1994 and 1995. Over several months in the latter part of 1994, Respondent negotiated with Ms. Fagan, trying to hire her for his company as a support coordinator. Ultimately, Respondent's increased salary offers did not entice Ms. Fagan to leave her 20- year employment with Key Learning Center. Part of the negotiations seem to have included Respondent's offer of a "bounty" to Ms. Fagan for each client who transferred to Respondent's company, when and if Ms. Fagan changed employments. There is no concensus on whether this would have been ethical. Even after she finally turned down Respondent, Ms. Fagan also understood Respondent to be offering her a bounty for any client she was able to sway to change to his company. Ms. Fagan clearly remembered that Respondent told her he would have to pay her off the premises of Key Training Center for this type of service. Susan Jaynes, who was Ms. Fagan's secretary, overheard Respondent say that if Ms. Fagan recommended clients to him, he "would make it worth her while." Originally, the Agency had required Respondent to bill Medicaid in quarter-hour increments, but at the time of Respondent's "bounty" conversations with Ms. Fagan after she had turned down his offer of employment, Medicaid paid support coordinators $147.00 per month for each client signed up with the support coordinator. Each support coordinator would have 30 to 35 clients at any one time. There was not a complete overlap of services between the type of services provided by Key Learning Center and Family Choice Support Services. However, where there was an overlap, the effect of Ms. Fagan proselytizing for Respondent would have been to persuade vulnerable mentally challenged clients and/or their supportive family members to change support coordinators for purely economic gain to Ms. Fagan and Respondent. It was contrary to Key Learning Center's ethical policy. Ms. Fagan also considered this type of persuasion ethically wrong. She reported it. Respondent established that if Key Learning Center employees simply handed out his advertising flyers, there would be no legal or ethical offense, although it was also shown that it was more common for him to mail his flyers directly to potential clients living in family homes. Respondent testified, without refutation or corroboration, that upon learning of his attempts to hire Ms. Fagan, the director of Key Learning Center had not permitted him to come on its premises to pick up and deliver mutual clients and had threatened Respondent that if he hired Ms. Fagan away, the director would see that Respondent lost all his own clients. Assuming, but not finding, that such a threat was actually made, it was never demonstrated that the director of Key Learning Center could carry out this alleged threat or that he ever approached or influenced the Agency to file charges against Respondent. The Agency suspended Respondent's certification on May 1, 1995, and the prosecution of DOAH Case No. 95-3469 then took the route described above in Finding of Fact 6. The Agency never restored Respondent's certification pending resolution of Respondent's first request for formal hearing in DOAH Case No. 95-3469. Respondent has been effectively decertified since May 1, 1995. He has been unable to draw on Medicaid funds pursuant to his certification since May 1, 1995. The 1996 termination letters in the instant case preceded exhaustion of any one year suspension under the 1995 suspension letters and also preceded the August 7, 1996, Final Order in the prior case. Even if de-certification had been frozen pending Section 120.57(1) proceedings, any certification existing on May 1, 1995, would have expired at the latest one year from its grant, pursuant to Respondent's December 13, 1994 application.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order ratifying its termination of Respondent's certification as a Medicaid individual support coordinator provider, retroactive to May 1, 1995. DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997.
The Issue Whether Petitioner is entitled to credit for her response to Question 36 or for her response to Question 41 of the X-ray interpretation portion of the Chiropractic Licensure Examination administered in November 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a Final Order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the X-ray portion. The X-ray portion consists of 60 multiple-choice questions, with each question having four possible answers. A chiropractic or pathology film is displayed for each question. The candidates are instructed to select from four possible answers the best answer to the written question pertaining to the accompanying film. The candidates are given 90 seconds to answer each question. The X-ray portion of the examination tests minimal competency and does not provide the candidates a certification or specialty in the field of radiology. Petitioner received a failing score on the X-ray portion of the examination. A candidate must correctly answer 45 of the 60 scores to pass. Petitioner received credit for correctly answering 44 questions. If Petitioner is awarded credit for correctly answering Question 36 or Question 41, she will be entitled to a passing score on the X-ray portion of the examination as well as the over-all examination. The written portion of Question 36 described certain symptoms being experienced by a 60-year-old female. The X-ray depicted a patient whose trachea was deviated to the left of its usual position. Candidates were asked to select the answer that best responded to the question "what is your impression of the radiograph." The parties agree that two of the four answers were incorrect. The other two answers will be referred to as Answer A and Answer B. Answer A, the answer Respondent considered the correct answer, was that the radiograph showed the trachea was deviated to the left of its usual position. Answer B, the answer selected by Petitioner, is a possible reason the trachea was deviated to the left. Petitioner agrees that the radiograph showed that the trachea was deviated to the left, but argues that because the question asks for the candidate's impression, she should attempt to answer why the body part was deviated. 2/ The written portion of the question and the radiograph do not provide sufficient information for a candidate to determine that Answer B was the reason the trachea was deviated to the left. Additional testing would be required before a practitioner could reach a correct diagnosis for the cause of the deviation. Answer A was the best answer to Question 36. Petitioner should not be awarded credit for her answer to Question 36 because her answer was not the best answer to the question. The written portion of Question 41 advised that the candidate's examination of a patient did not find a reason for the patient's mild back pain. The candidate was required to select the best answer to the question "[w]hat does the X-ray disclose." The greater weight of the credible evidence established that the only correct answer was the answer selected by Respondent as being the correct answer. Petitioner concedes that the X-ray disclosed what Respondent asserted was the correct answer, but chose another answer because Respondent's answer would not account for the patient's pain. Petitioner chose the answer that the X-ray disclosed a bilateral fracture. There was a dispute among the experts as to whether the X-ray contained jagged lines, which would indicate a fracture. Respondent's expert testified that there were no significant jagged areas. Dr. Stern testified that there may be some jagged areas, but that further testing would be necessary to reveal a fracture. Dr. Richard Santo testified that there were jagged areas that disclosed a severe fracture. The conflicting evidence is resolved by finding that the X-ray did not clearly disclose an area that had been fractured and did not disclose a bilateral fracture. Petitioner should not be awarded credit for her answer to Question 41 because her answer was not the best answer to the question. Respondent's psychometrician evaluated the responses to Question 36 and Question 41, and found that both questions performed at an acceptable level. For Question 36, 77% of the candidates who took the examination with Petitioner chose Respondent's correct answer, while 17% of the candidates choose Petitioner's answer. For Question 41, 74% of the candidates chose Respondent's answer, and 24% chose Petitioner's answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for her responses to Questions 36 and 41 of the X-ray portion of the Chiropractic Licensure Examination administered in November 2000. DONE AND ENTERED this 11th day of October, 2001, 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 (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 11th day of October, 2001.
The Issue The issue for determination at formal hearings was whether Respondent committed the offenses set forth in the amended administrative complaint, and, if so, what action should be taken.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency charged with regulating the practice of medicine pursuant to Sections 20.165 and 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material hereto, Alejandro Jose Vilasuso (VILASUSO) has been a physician licensed in the State of Florida, having been issued license number ME 0042999. At all times material hereto, VILASUSO's primary practice was located at 4995 S.W. 82nd Street, Miami, Florida. This address was filed with the Board of Medicine and for the past five years was a part of its records. Also, at all times material hereto, VILASUSO had a satellite office located at 2245 S.W. 27th Street, Miami, Florida. On or about March 11, 1993, Patient J. K. presented to VILASUSO at his satellite office for hypertension. From March through June 1993, she had monthly appointments with him at the satellite office. Patient J. K.'s former husband, Patient C. M., was having a prostate problem. Patient J. K. recommended that he consult with VILASUSO regarding his prostate problem. On or about June 28, 1993, Patient C. M. presented to VILASUSO, at his satellite office, regarding the prostate problem. Patient J. K. accompanied Patient C. M. to VILASUSO's office. Patient C. M.'s blood was drawn for lab tests. He was also provided with a two-week prescription for medication and scheduled for a follow-up appointment on July 8, 1993, at which time VILASUSO would discuss the lab results and his recommendations. Patient C. M. informed Patient J. K. that he had had blood drawn for lab tests, regarding his prostate problem, and that he was returning on July 8, 1993, to discuss the test results with VILASUSO and his (VILASUSO's) recommendations. VILASUSO and his landlord at the satellite office had been having an ongoing rent dispute, concerning an increase in VILASUSO's rent. VILASUSO had refused to sign a long-term lease agreement and, as a result, was on a month-to- month lease. Hoping to force a settlement of the dispute, VILASUSO withheld his rent for June 1993. However, in the last week of June, approximately two days before July 1, 1993, the landlord reacted by threatening to lock VILASUSO out of his office. It was clear to VILASUSO that the dispute could not be resolved and that he had to move on or before July 1, 1993. On or about July 1, 1993, VILASUSO relocated his satellite office. However, he saw all patients scheduled for that day before relocating. He moved about five blocks away. Before leaving his office that day, VILASUSO indicated his new address on a piece of cardboard and posted it on the outside of the office. Telephone service for the satellite office was discontinued between June 28, 1993, and July 8, 1993. Attempting to directly notify his patients of his relocation immediately after the move, VILASUSO directed his office staff to notify all patients by telephone who had an appointment within the following two weeks or who were very ill of the relocation and/or to reschedule their appointments. All other patients were notified of his new location by letter. Patient C. M. had an upcoming appointment within the two-week period. However, for some unknown reason, he was not contacted and VILASUSO did not discover this mistake until sometime after Patient's C. M.'s scheduled appointment on July 8, 1993. On or about July 6, 1993, Patient J. K. went to VILASUSO's former satellite office and found it deserted. She contacted Patient C. M. and told him what she had discovered. On July 8, 1993, Patient C. M. was unable to keep his scheduled follow-up appointment because he was unaware of VILASUSO's new location. On or about July 15, 1993, Patient J. K. discovered the location of VILASUSO's new satellite office and informed Patient C. M. On that same day, Patient J. K. went to VILASUSO's new office and requested a copy of Patient C. M.'s medical records. Believing that Patient J. K. was Patient C. M.'s confidant and that she was requesting the medical records on behalf of Patient C. M., VILASUSO released the records to her. VILASUSO released a copy of Patient C .M.'s records to Patient J. K. without written authorization from Patient C. M. Patient J. K. was neither Patient C. M.'s legal representative nor his other health care provider. On or about July 15, 1993, Patient J. K. notified Patient C. M. by telephone that she had obtained a copy of his medical records and was mailing the copy to him. Patient J. K. mailed the records, and Patient C. M. received them. On June 29, 1993, VILASUSO had only received Patient C. M.'s partial lab results, so the medical file contained only the partial lab results. On July 20, 1993, VILASUSO received the remainder of the lab results, which were normal, and mailed them to Patient C. M. At all times material hereto, VILASUSO did not place an advertisement in the newspaper notifying his patients of the effective date of his relocation and an address at which patients could obtain their records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Dismissing Count One of the Amended Administrative Complaint. Finding a violation of Section 458.331(1)(g), Florida Statutes, as stated in Count Two of the Amended Administrative Complaint. Imposing a reprimand and an administrative fine of $1,500. Imposing a requirement of reading Chapters 455 and 458, Florida Statutes, and submitting an affidavit attesting to such fact. Imposing Continuing Education requirements concerning confidentiality of patient records under terms and conditions determined to be appropriate by the Board of Medicine. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995. ERROL H. POWELL 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 23rd day of March 1995
The Issue As to Case 93-6927, whether Respondent, a licensed physician, violated the provisions of Section 458.331(1)(m), (t), (v), and (dd), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6928, whether Respondent violated the provisions of Section 458.319(5), 458.327(1)(a), and 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6929, whether Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged 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 that regulates the practice of medicine. Respondent is a licensed physician in the State of Florida and has been issued license number ME 0028412 by the Petitioner. CASE NO. 93-6927 On December 12, 1990, Susan D. Bernhardt conducted an inspection for the Florida Department of Health and Rehabilitative Services (DHRS) of an abortion clinic named Miami International Esthetics Center (MIEC). Ms. Bernhardt was hired as a consultant by DHRS to conduct random inspections of MIEC pursuant to a stipulation between DHRS and MIEC. Ms. Bernhardt is a registered nurse and is experienced in surgical procedures. Ms. Bernhardt observed Respondent perform an abortion on a patient at MIEC on December 12, 1990. Also present in the operating room was a nurse anesthetist, to whom Respondent referred as Mr. Martin. Respondent, Mr. Martin, and Ms. Bernhardt were present in the operating room at all times during the procedure. Mr. Martin administered anesthesia and the patient lost consciousness. Shortly after losing consciousness, the patient began making sounds which Ms. Bernhardt described as "crowing noises" and to which Dr. Van Eldik referred to as "stridors". These sounds indicate that the patient's air passages are blocked, a condition that requires prompt action from the physician or from the person administering anesthesia since the condition can be life threatening. Ms. Bernhardt testified that she went to the patient and used her stethoscope to confirm that the patient was having breathing difficulties. She thereafter tilted the patient's head and restored her breathing. The amount of time that lapsed between the time the patient first experienced difficulties breathing and the time Ms. Bernhardt acted was not established. While it is clear that neither Respondent or Mr. Martin 1/ acted to provide the patient with any relief or to assure that her air passages were open so that she could receive adequate oxygen, it is not clear whether the action of Ms. Bernhardt obviated the necessity for either the physician or the nurse anesthetist to act. Consequently, it is found that Petitioner failed to establish by clear and convincing evidence that Respondent failed to properly supervise Mr. Martin by failing to order him to assist the patient when Ms. Bernhardt acted promptly to relieve the patient. Emergency equipment was maintained on a crash cart that was in the operating room during the procedure Ms. Bernhardt observed. As the operating surgeon, Respondent was responsible for making sure that appropriate emergency equipment was readily available. Appropriate emergency equipment would include emergency drugs on the crash cart. Throughout the procedure there were no emergency drugs present on the crash cart. Respondent failed to adequately supervise Mr. Martin to ensure that appropriate emergency equipment was readily available. As part of her inspection of MIEC, Ms. Bernhardt reviewed medical records at the clinic pertaining to patients of the Respondent. Some of the records that were reviewed by her are contained in Petitioner's Exhibit 5. Respondent's records reviewed by Ms. Bernhardt were of overall poor quality. Documentation concerning physical examination was scanty and often failed to include the size of the patient's uterine and a description of the presumptive signs of pregnancy. Anesthesia records were not filled out. Documentation concerning the recovery room period was virtually nonexistent. No vital signs or progress notes were charted. There was no follow-up documentation evidencing a pelvic examination and no notation of patient complaints or symptoms. The records reviewed by Ms. Bernhardt during her inspection did not justify or adequately document the course of treatment for the respective patients. A subpoena was served on Respondent by one of Petitioner's investigators that required him to turn over all medical records pertaining to certain named patients. A similar subpoena was served on Mr. Angel Caso, the owner of MIEC. In response to the subpoena that was served on his client, Respondent's attorney informed the investigator that Respondent did not have any medical records other than those that would have been maintained at the MIEC. In response to the subpoena that was served on him, Mr. Caso turned over medical records pertaining to 45 patients. These records reflect that the Respondent was their attending physician. Mr. Caso could not be subpoenaed by Petitioner to compel his attendance at the formal hearing because he could not be located. The medical records that were turned over to Petitioner pursuant to subpoena were admitted into evidence as Petitioner's Exhibit 5 as records received by Petitioner during the course of an official investigation. There was no evidence that any other medical records pertaining to these patients exist. The medical records that constitute Petitioner's Exhibit 5 do not justify or adequately document the course of treatment of the respective patients. CASE NO. 93-6928 Section 458.319(5), Florida Statutes, provides, as follows: (5) The licensee must have on file with the department the address of his primary place of practice within the state prior to engaging in that practice. Prior to changing the address of his primary place of practice, whether or not within this state, the licensee shall notify the department of the address of his new primary place of practice. The Petitioner maintains the addresses of physicians by computer. There is no statute or rule that requires a physician to notify the Department in writing as to a change of address, but the Department's policy is to require that address changes be in writing and that the request for a change of address come from the physician. There was no written notification from Respondent to the Petitioner that his business address had changed prior to September 1992. At the time of the formal hearing, Respondent's business address was 102 East 49th Street, Hialeah. His former business address was 4821 West 4th Avenue, Hialeah, Florida. At the times pertinent to this proceeding, Respondent's home address was 14710 Day Pine Avenue, Miami, Florida. As of December 17, 1990, Petitioner had been informed of that address. Petitioner's investigator, Diane Robie, interviewed Respondent at his business address on East 49th Street on August 22, 1991. Respondent had been at this address for approximately eight months as of August 22, 1991. This new business address was reflected by Ms. Robie's report, which was filed with Petitioner on October 8, 1991, but that report did not trigger a change of the business address Petitioner maintained for Respondent in its computers. Respondent's license to practice medicine was scheduled to expire on December 31, 1991. In mid October 1991, the Department of Professional Regulation (Department) mailed a renewal notice to Respondent's former business address on West 4th Avenue. As required by Section 458.319(4), Florida Statutes, the Department routinely mails to the physician a renewal form that the physician must use to renew his license. This mailing takes place 60 days before the physician's license is scheduled to expire. This renewal form is generated by computer and is sent to the mailing address that is on record with the Department and maintained by computer. It was the Department's policy to try to notify a physician at his home address if a renewal notice is returned from a stale office address. There was no evidence that the renewal notice and the renewal form that was mailed to Respondent at his former address in October 1991 was returned to the Department as being an incorrect address. The evidence failed to establish what happened to the renewal notice that was mailed to Respondent in mid-October 1991. There was no further attempt by the Department following the mid-October 1991 mailing to notify the Respondent at his home address or business address that his license was about to expire. Respondent's license expired on December 31, 1991, and his licensure automatically reverted to inactive status pursuant to Section 458.319(3), Florida Statutes. Respondent made no effort to contact the Department until June 1992 at which time his secretary/office manager contacted the Department by telephone and advised that Respondent had not received the renewal documentation. On August 10, 1992, the Petitioner wrote to Respondent at his home address. This was the first written communication between the parties since the mid-October 1991 mailing. Respondent mailed a check in the amount of $500.00 for the renewal of his license to the Department in September 1992. On October 6, 1992, the Department wrote Respondent at his former address on West 4th Avenue and advised that prior to the renewal of his license, Respondent had to pay an additional fee in the amount of $350.00 for the processing of his renewal application and that he would also have to submit proof that he had earned required continuing medical education credits. On February 15, 1993, the Department sent to Respondent a letter at his East 49th Street address that provided as follows: This letter is in response to your (sic) to your submission to renew your Florida medical license which was received in the Board office on 9-15-92. Unfortunately the Board of Medicine cannot comply with your request until the follow- ing is received: $350.00 renewal fee. (in addition to the $500 already submitted) You did not fill out the Financial Respon- sibility portion of the renewal application, therefore, you will need to fill out a new form, and have it properly notarized. Please submit an affidavit for your active practice activities between January 1, 1992, and the present date. Any person applying for reactivation of a license must show either that such licensee main- tained tail insurance coverage which provided liability coverage for incidents that occurred on or after January 1, 1987, or the initial date of licensure in this state, whichever is later, and incidents that occurred before the date on which the license became inactive; OR that such licensee MUST SUBMIT A NOTARIZED AFFIDAVIT STATING THAT SUCH LICENSEE HAS NO UNSATISFIED MEDICAL MALPRACTICE JUDGMENTS OR SETTLEMENTS AT THE TIME OF APPLICATION FOR REACTIVATION. After July 1, 1992, you will need to submit copies of at least 40 hours of Category I CME earned between January 1, 1990, and the present date. Five of these hours must be in Risk Management. Also one hour of HIV/AIDS Category I CME needs to be submitted. Once the above items are received, we will proceed with the issuance of an active Florida medical license. (Emphasis is in the original.) Respondent met all requirements for the renewal of his medical license on March 16, 1993, the date on which his license was reactivated. Between January 1, 1992, and March 15, 1993, Respondent engaged in the practice of medicine in the State of Florida without an active license. Case 93-6929 Petitioner filed an Administrative Complaint against Respondent on April 27, 1988, which was subsequently referred to the Division of Administrative Hearings and assigned DOAH Case No. 88-5546. On February 28, 1989, the parties to that proceeding executed a "Stipulation" which settled the dispute. On April 19, 1989, the Board of Medicine entered a Final Order that accepted the Stipulation and ordered the parties to abide by its terms. Pertinent to this proceeding, Paragraph 4 of the Stipulation required the following: 4. Within one (1) year of the date of filing of the Final Order incorporating the terms of this stipulation, Respondent shall complete twenty-five (25) hours of Category I Continuing Medical Education in the areas of Risk Management and/or Medical Records Keeping. Such continuing education shall be in addition to that amount required for renewal of licensure. Category I Continuing Medical Education is a course approved by the American Medical Association as a top level course. In March 1990, Respondent completed a 25 hour course sponsored by Jackson Memorial Hospital in the area of "Medical Records Keeping". Respondent notified Petitioner on March 21, 1990, that he had completed this course. This was the only course that Respondent claimed to have taken in satisfaction of the Final Order entered in DOAH Case 88-5546. This course has not been designated as a Category I Continuing Medical Education course by Jackson Memorial Hospital. The Petitioner advised the Respondent that the course he had taken did not satisfy its order. Respondent thereafter requested that the matter be reviewed by Petitioner's Probation Committee. This request was granted, but the Probation Committee determined that the course was not acceptable. Respondent did not comply with the order until March 16, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and which incorporates the following: Find Respondent not guilty of practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes, as alleged in Count One of Case 93-6927. Find Respondent not guilty of practicing below the standard of care in violation of Section 458.331(1)(t), Florida Statutes, as alleged in Count Two of Case 93-6927. Find Respondent guilty of failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes, as alleged in Count Three of Case 93-6927. For this violation, Respondent should be reprimanded, assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent not guilty of failing to properly supervise the nurse anesthetist when the patient experienced breathing difficulties in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93- 6927. Find Respondent guilty of failing to ensure that the crash cart was appropriately equipped, thereby failing to properly supervise the nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93-6927. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.319(5), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by failing to timely notify Petitioner of his change of business address as alleged in Count One of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.327(1)(a), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by practicing medicine in the State of Florida after his license expired as alleged in Count Two of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent guilty of violating the provisions of Section 458.331(1)(x), Florida Statutes, by failing to timely comply with an order of the Board of Medicine alleged in Case 93-6929. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. DONE AND ENTERED this 31st 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 31st day of January, 1995.
The Issue The issue in this case is whether the Board of Osteopathic Medicine (the Board) should discipline the Respondent's license on charges alleged in an Administrative Complaint, AHCA Case No. 94-09207, filed against him on August 17, 1994.
Findings Of Fact On March 31, 1986, the Respondent's license to practice osteopathic medicine was revoked. The Respondent reapplied for licensure, and the Board issued an Order on April 5, 1993, approving the application and relicensing the Respondent subject to a period of probation. One of the conditions of the Respondent's probation was: "Respondent shall not examine or treat any female patients without a female employee who is a health care practitioner licensed by the Department of Professional Regulation present in the room during the examination." On various occasions since April 5, 1993, while on probation, the Respondent examined female patients while just one of the following female employees was present in the room during the examination: Jacqueline Mehle, a licensed practical nurse who worked for him from approximately July through October, 1993; Teresa Patrick, a medical lab technician licensed by the Department of Business and Professional Regulation (formerly the Department of Professional Regulation, now the ACHA), who worked for the Respondent in 1994; Lynn Gongre, either a licensed practical nurse or a licensed registered nurse who worked for the Respondent starting in June, 1994; Susan Almgreen, a certified nurse assistant; and Lynn Sanford, a licensed X-ray technician. During times when Mehle worked for the Respondent, usually she would be present, but sometimes Almgreen or Sanford would take her place when she stepped out of the room. While Gongre worked for him, usually she would be present, but sometimes Patrick would be and sometimes one of the others took their place when Gongre or Patrick stepped out of the room. In 1994, before Gongre started working for him, Patrick usually would be present, but sometimes one of the others took her place when she stepped out of the room. The Respondent did not see patients during the time period after Mehle left but before Patrick started working for him. On other occasions, Almgreen or Carmen McGrew were present in the examination room with female patients to take information concerning insurance and payment for services, but those interviews generally occurred before the Respondent entered the examination room with Mehle, Patrick or Gongre. It was not proven whether either Patrick, Almgreen or Sanford is a "health care practitioner licensed by the Department of Professional Regulation" under the terms of the Respondent's probation conditions. It was not proven that the Respondent believed that either Patrick, Almgreen or Sanford was not a "health care practitioner licensed by the Department of Professional Regulation" under the terms of the Respondent's probation conditions. There is no evidence that any female patient has complained about anything the Respondent has said or done during an examination since his relicensure. After his relicensure, the Respondent reapplied for Drug Enforcement Agency (DEA) certification to prescribe and dispense controlled substances. When the Respondent filled out the DEA application, he correctly checked the box on the form to indicate that he was applying as a "Practitioner," not as a "Teaching Institution" or one of the other categories. But he misread the form and mistakenly checked the "no" box in answer to the following question, which was single-spaced in very small print on the form: Has the applicant ever been convicted of a crime in connection with controlled substances under State or Federal law, or ever surrendered or had a Federal controlled substance registration revoked, suspended, restricted or denied, or ever had a State professional license or controlled substances registration revoked, suspended, denied, restricted or placed on probation? The evidence on the DEA application process is confusing. This finding reflects what is believed to be what transpired. It is believed that the Respondent's initial application was returned for failure to include an osteopathic medicine license number. The Respondent telephoned the DEA to resolve the problem and fully discussed his prior revocation and relicensure under probation. (In addition, copies of the documentation of the prior revocation were contained in DEA files under the Respondent's name both in the DEA's Florida office and in Washington, D.C.) After his discussions with the DEA, the Respondent contacted the Board to obtain a license number. After being told that it takes time, the Respondent resubmitted the DEA application, together with copies of both the Final Order revoking his previous license and the April 5, 1993, Order relicensing him under probation conditions. When the Respondent received his DEA certificate, it mistakenly indicated that the Respondent was a "Teaching Institution," instead of a "Practitioner." The Respondent again telephoned the DEA to have the error corrected. While the Respondent was waiting for his certificate to be corrected, a DEA investigator noticed the mistaken reference to the Respondent's being a "Teaching Institution" and investigated. While investigating, she also noticed the false statement in the Respondent's application. She notified the AHCA, which dispatched an investigator to accompany the DEA investigator to the Respondent's office. The charges in the Order of Emergency Restriction of License and the Administrative Complaint followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Osteopathic Medicine enter a final order dismissing the Administrative Complaint. RECOMMENDED this 3rd day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4595 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. 4.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as not proven. 9.-10. Accepted, but whether either was a "health care licensee" is not the issue. Rejected as not proven. Also, whether she was a "health care licensee" is not the issue. Accepted, but whether she was a "health care licensee" is not the issue. Rejected as not proven. Also, whether he had a "health care licensee in the room" is not the issue. Rejected as not proven. Rejected as largely not proven. Accepted and incorporated that his license was revoked and that his application for relicensure was granted with probation conditions. 16.-17. Rejected as not proven. Accepted and incorporated. Rejected as not proven. Respondent's Proposed Findings of Fact. Rejected as unclear. His license was revoked; he applied for relicensure; he was relicensed with probation conditions. Rejected as contrary to the greater weight of the evidence. It is believed that he applied, that the application was returned for failure to include a license number, and that then he spoke to DEA about the probation conditions. Accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence. See 2., above. Third sentence, also rejected as contrary to the greater weight of the evidence. (It is believed that the conversation related here took place after the surrender of the Respondent's DEA certificate on June 2, 1994.) Otherwise, accepted and incorporated. Accepted and incorporated. Generally accepted but largely argument, and subordinate and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence that the Respondent always "keeps the Torah." Otherwise, accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. Sometimes Almgreen or Sanford replaced them for periods of time. 10.-14. Accepted and incorporated. 15.-16. Accepted; subordinate to facts found. 17. Accepted and incorporated. COPIES FURNISHED: Francesca Plendl, Esquire Agency for Health Care Administration Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Salvatore Carpino, Esquire 8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614 Henry Dover Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
Conclusions Having reviewed the Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review, dated May 12, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. 1 Filed July 10, 2009 2:23 PM Division of Administrative Hearings. DONE and ORDERED this _f_day of _ ,,_of""""--"'"""'"-l""""A-'-t_f , 2cf.i inTallahassee, Leon County, Florida. Holly Benson, ecretary Agency for He th Care Administration 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. Copies furnished to: Stephen T. Maher Shutts & Bowen LLP 201 $outh Biscayne Boulevard Suite 1500, Miami Center Miami, Florida 33131 Jamie L. Jackson Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Karen Rivera Agency for Health Care Administration Laboratory Unit Manager 2727 Mahan Drive, Bldg #3, MS #3 Agency for Health Care Administration Tallahassee, Florida 32308 2727 Mahan Drive, MS #28 (Interoffice Mail) Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the _._8:,.._P_day of-=:......-.--=-""-7-·....,,,. '-----' 20 g:- -- Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 To:RS09210158 CHARLIE CRIST GOVERNOR Mi,y 1l, 2009 ADMTNTSTR.ATOR B1HMf HHlth care for.,,Flor'ltlltms MOU.Y BEN50N SECReTARY CEKTlPIBD MAll. / RETURN R.ECEW'r Rl?Q STED 'PETER M WALLACH AND ST·TART F TOP.PER MOS PA 1480 N UNIVERSllY DRIVE COP.AL SPR.INGS, E'L 3307 l LlC:f.NSE NUMBER: 800004917 CAS£ #: 200900.5482 !i()J'JC& a,ViUNT TO pEEM Al'fUCA:rJmr,,lX,COM1"1.V.Il., 'ND wrrlJDBAl»'ll fRQM FURTHER gvur.w or Your tappJIClltlan for license is d.:cmod lncompleto and wlthdrnwn ftom further consideration punnuu,t 10 SQQllon 408,806(3)(b), Plorida St11-Mea, wJii\;b i1litll¢8 that "Tteque vd informition omiHod from an 11ppllc•tk,n for Uccnsure, license renewal, or obnn1io ownership, other than an lnspectjon, must be.fll•d wilh the a cncy within 21 do.y, after the llSCDcy'1 rcqu fi:il' Qmltted inform11tion or tho oppllcadon shall be deemed incomplete and shitll be withdrawn from further oon,idonition llnd the f,ot sh•ll bo forfoi d' '. You were notified by c:orrcq,o"d11m:111 dntod Fobruar)' 28, 2009 to provide furthar infonnat1o11 nddrol\ ing identified appt1rcnt c1Tnr11 or ,'lmlsslont within twenty-one da.)'I trc,m &he rcoelpt of the Agency's correspondence, Our rec:ordl lndlc1110 you received this cornr11pondcncc: by certified mllfl on Murch 09, 2009. A11 this requested Information wa. not timcl)' received by tho Agency, your application is dc:c:mcd Incomplete and withdmwn C'l'oTTI further uonsidcnuion, TI1e ou'tt)IAl\dll\Q h1sue1 rornalnlng for liconsure are: Corrected LIit ofTU!lts Performed: Tbe Pl'Clflclcney TtJstlng Comp ¦11)' Ji11red I• not CLIA approved, ·-·· .. EXPLANAJJOJ! OF RlGWl'S l'ursuant to Section 120.S69, F.S., you h1n1c the rlgt11 to rcquost ,in 1.1dn1iuilllfAtfvc bc:arins, .(n or(J¢r to obtidn a formal proc;aodina before tho Di'lision of Admlnlstrn\.lvo 'Htorin under Section 120.57(1)1 P.S., your rcq1,1 1t for on administrative hearin11 musr i.:onronn to·m requfre1no11t.li in Seotlon 28-106.%0 I, FlorldA MminlNtr'o1tiYC Code (F.A.C), nnd must state tho material fru;ts you dispula. ION AND EXPLANATION OF RICRTS IORMS. Katen Rivera, Manaa r r :.bomtory LicL.'JldUrt: U11it l.)C: Agit,1.;y Cl\lrk, MBil Stop j Legal Lnt ¢ Unit. Mnll Stop '.l T:u1an11111, Plorida 32305 Z7:z7 M11han Oriv,,MS#U Certified Adidti Nun1bcr SENDERS RECORD 111111· 1/lhCI.myflcirld•. i:cim • Vi:rn Ai'iCA !lrtllno II\ EXHIBIT I ( JUN-05-2009 16:40 From: To:9509210158 STATE OF FLOlUl)A AGENCY FOR HEALm CARE ADMlNlSTRATION RE: Pc,tor M Wall11c:h And Shari F Topper Mds P11 CASE NO: 2009005482 El,.RCTION OF RIGHTS Thill Jlh;:cti9n of Rishta form Is attaohed to II proposed Noti of lntont to Dcein Inc:omploio Rlld Withdraw fl-0111 Purther Rt!Vlew of the Agency for Hoslth Care Admi11istration (AHCA). Tua lltlc may be Nottcc ot lnlenc fO Dc:orn Incompluto and Withdraw from P'arthor Rcwlow or ,nmo otbcr notice vr •ntondcd adlon by AJiCA. An £1,sdpp oflUc,ltM muu be rclyrnecl hyJDBll or by fqr \Y.i!Jlln 21 de:m or the dg YOU rn:eh,e lhJ iHtaehefl rfgtlt:e o( Jntent to peom Tnenm111.11,s ¦qd WltLdraw,,.ftpm fynher Reylm or pny nrJ,sr PDIURl d gctJon h,y ARCA. If' an Rleclkn1 g{ Rigg with )'OUI' IClecmtd optJon i, not nctlvccl by ,'\HCA within twenty.one (21) dn)'S from the dato you rocoivcd d1i1 notice of propo_.d ac;t(Qn, you will havo given up your right to t1on1.esr rhe Agenc)''III proposed agtlon amd w ti1111l ordorwfll b,:1,.ued. (PlciU$a n::J)Jy using thi, B)ccti,:1n qf Rjght, fnnn unless you.)'Our attorney er your roprosentBtiv prc:rcr io reply ncc:ordlna to Chapter 120, Florida Statutes (2006) lllld .Rul, :28, Florida Administrative Cod ¦.) Plcase return your EL6C',CIQN 9.FRIQHTS to: Agency for HCA!th Administration AL1QnUon: Agency Clt::rk 2727 Mahnn Drive, Mail Slup N3 T•llahusao, Florida 32308 Phon,:: (8SO) 9ll-:B73 Fax: (850) 921·01S8 'PLM S.W...F-.c:r QNLY 1 op TI:JESE 3 OPTIONS, Ol''l"lON ONE (I.) I admit to tbe aJltptlons of facts and law contutned 11- tbo Notlee ofintcnt to DCIClm lncontpleta abd Withdraw from Furth•.- Rovti!W. o, other notice ot lnte•dod acdun by ABCA aad I waive my rli:bt to object and bavi, a hcnrln1, I 1.tndermnd that by Jiving up my rigbt lO A h•ring, a tlnal order will be 1,,cued that adopts tbc prop0scd agency nction and impoao11 the: proposed pcn11lty, fine= or nction. OP'flON TWO (2) I 11dmit to tha allcuation1 or taotl tOJ1C1ln111d In tbc N1,1Uce ur lnt.:Pt to 0111-,sn lnaompl"to 11.,d.Wllhdraw rrom 11'ut111or Rovlew, or olbcr propoKd aetfoa by AHCA, but I w,,h to be bcurtl at 011 Informal prooeeclln1 (pursuant to Se<:tion 120.57(2), f'luridA Statute:1) where I mtiy submit testimony and wtincn cvld nce to tbc Agency tu shuw t..hat the proposed administrative llC: ion i, too 11cverc or that Lhc floe sbou Id bv roduccd. OPTION 1".l-lltf:E (3) _ - I cU11p11te the ancsatloo» uffatt contained In tho Notice otlntont fo Ocam I11completo •nd Wlthdnn, fmrn Further luview or other proposed acdoo by AHCA, And I r1:q11est a tormal hearing (pursuant to Sc:ctiun 120.57(1). Floridn Statuto1) before an . Adminis1ntlvc Law Judge l\J)pointed by the Divlsil)n of Administrative Hc11rin1:s, fl.,lliASE,.NOTE: Choo11in1 OPTIOii THREE (3), by i oit, l» u9-I tufflclcnt to obtain n f1mr..aJ hcarlni;. Yuu ahm mu t nte II writtan petition in order to obtnin a formal hc11ring before tho ...,... ., · - _,.. -' .. ,- = ••n?:. ,_ U.nr:... ......,4,.,. c:.. 1-..,..,.tfn" 1')0 <i7f1' f.'lnl'l.-fn L'\tUtell. It must be JUN-05-2009 16:41 From: To:8509210158 P.17,,.17 recelv(:d b)' the Agency Clerk ut tha address above within 21 clllys o( receipt or lhls proposed adminislrutivc aotlon. The roqut:u1L for rorrnal h rlng m1Jsl. cottform tc;, thi: requirements of Rule lR- 106.201. Florida Administrntivc Code, which willim lhat it contnin: l. The T!M1\: and addre'5 of coch agi;noy llfl'ect(:d ond each agency's 1tfe or ldi,ntJfielldon nurnbor. If known: Your numc, addn1111, and telephone numoor, 111td th nimc, uddrcs!I, and telephone number of )'Our rcpti,acntativo or l1twyor, If any: An 9pJanation of how yoUl' sub1tantl11I Interests will be affected by Ihc Agency's proposed action; A statement of when and how you rccoivod notice ot'tho Agency's proposed action: A statement of tlll disputed issues of nmwria1 fact, If there arc nunc, you must s111tc that thon:t arc none; _ A concise statement of me ultimate f111:1:S allc9cd. including the specific facts you contend wnmint rav rsJl or modi.flcatlon of the Aaency's proposed nclion; · A 6tati:nient of the spc:oific rules or su.tu.tcs )'OU c;lnlm require ri:,vorsal or modlflcAtion of the Agcn )"I proposed aotlon; and A 1tfttcment of the r¢lli=f yo1,1 are sceklns, stating ex.,ctly what uc.tion you wi1h th Agcnt:-y to take with respeet to It., proposed 11otion. (Medl11tlon under Section 120.S73, Florida. Statutes. may bo avaUablci in thill matter If the Agen y agrees,) License type: clinical laborntocy T..iccr.is= number: 800004917 Lfccn cc Nnme: Peter M Wallach And Shari F Topper Meis Pn Contact l)crson: ·------ Name 'i'itle Ad Ms:. _ Streot and numb(tt' -··· ··clty Zip Code Telephone No. Fax No•. Email (optional). _ 1 hereby eortify that J. pm duly authQTl d ro submit this Notice of Election of Righis to the Agency for Meahh Caro Adrninhitmtlon on behalf of th lictn$eo referred to 11bova. Signed; Dat9; Print Namo:. 'rittc: ·------- USPS -Track & Confirm Page 1 of 1 Hl2trul I t.il.lJI I SlgnJn Track & Confirm Search 'Results Label/Receipt Number: 7180 390198481045 5162 Service(s): Certified Mall"' Status: Delivered Your item was delivered at 12:27 PM on May 18, 2009 in MIAMI, FL 33144. Detailed Results: Delivered, May 18, 2009, 12:27 pm, MIAMI, FL 33144 Notice Left, May 15, 2009, 11:22 am, MIAMI, FL 33144 Jrack & Confirm •!!i_ o.nQp i ..._ _ Track & Confirm by email _ _ _ Get current event information or updates for your Item sent to you or others by email. (oii> ) Return Receipt (Electronic) Verify who signed for your item by email. (iii) ,..,,.,. f.;f<" I:lll!!!ll. Pdyat:y Polk:y Terms of Us uslness customer GatewllV Copyright© 2009 USPS. All Rights Reserved. No FEAH Act EEO Data FOIA { 1\i t1! f. •"ti(:1•:: 1\: "1·'<'• -1 t'. h••'.J. • http://trkcnfrml.smi.usps.com/PTSinternetWeb/InterLabelinquiry.do 05/19/2009 STATE OF FLORIDA
