Findings Of Fact Petitioner has licensed Respondent to operate the James E. Holmes Regional Medical Center located at 1350 South Hickory Street, Melbourne, Florida ("Hospital"). Petitioner's Office of Licensure & Certification performed a license- renewal inspection of the Hospital on April 7, 1987. Petitioner discovered during this inspection that Schilling tests and blood volume tests were performed in the nuclear medicine laboratory. These tests have been performed continuously since 1962 by Respondent in its nuclear medicine laboratory without previous criticism from Petitioner. On April 8, 1987, Petitioner notified Respondent that its nuclear medicine laboratory was not licensed as required by Section 483.091, Florida Statutes, to perform Schilling and blood volume tests and that the performance of laboratory procedures by "an unlicensed laboratory" must cease immediately. The letter further advised Respondent that failure to cease could subject "your laboratory/hospital" to legal action. The Schilling test is a diagnostic procedure to determine if the patient has an absence of B-12 factor in his body. The test is performed by having the patient ingest radioactive B-12 orally at the same time that he receives an injection of nonradioactive B-12. Over the next 24 to 48 hours, urine samples are then collected from the patient, who may remain at the hospital or go home. The urine is then analyzed in order to count the radioactivity and thereby determine the rate of absorption of B-12 by the patient. The blood volume test is a diagnostic procedure to determine the volume of blood in the patient. There are two forms of the test. In one, radioactive material is injected into the patient's blood. A sample of blood drawn from the patient is analyzed for radioactivity and dilution of the radioactive material. The blood volume can then be calculated. In the other form of the blood volume test, red blood cells are drawn from the patient and tagged with a radioactive material. They are then re-injected into the patient and their dilution is tracked, again to determine the patient's blood volume. Respondent performs both types of blood volume tests. In vivo means "in the living body." In vitro means "outside the living body and in an artificial environment." The Schilling test is in vitro to the extent of the urinalysis, although the ingesting of B-12 is an in vivo procedure. The blood volume test in which the radioactive material is injected directly into the patient is in vitro, insofar that blood is drawn from the patient for analysis, and in vivo, insofar as radioactive material is injected into the patient's blood. The blood volume test in which the blood is removed, tagged with a radioactive tracer, and then returned to the body is exclusively in vivo because the analysis takes place while the blood is in the patient's body. The Hospital contains a clinical laboratory and a nuclear medicine laboratory, which are on different floors in the same building. By letter dated June 25, 1987, Petitioner informed Respondent that in vitro analyses of patient specimens could only be performed in its clinical laboratory. By letter dated August 21, 1987, Petitioner elaborated by stating that licensure by its Office of Radiation Control Radiologic Technologist Program did not authorize individuals to perform in vitro analyses. Respondent is licensed by Petitioner's Office of Radiation Control "to receive, acquire, possess and transfer [certain] radioactive materials ... and to use such radioactive material[s] for the purpose[s] and at the place[s] designated below." The location designated is the street address of the Hospital. Paragraph 9 of the license expressly authorizes Respondent to perform "in vitro studies" and diagnostic procedures as described in Groups I, II, and III of Schedule C, Part III, Chapter 10D-91, Florida Administrative Code. The Schilling test and blood volume tests are described within Groups I and II above. Paragraph 12 of the license also states that the licensed radioactive material described in Groups I and II may be used "by, or under the supervision of," among others, Dr. Laudie McHenry. The clinical laboratory license held by Respondent for the Hospital was not produced at the hearing. At all relevant times, the clinical laboratory license authorized Respondent to conduct, maintain, or operate a clinical laboratory at the Hospital and to perform the Schilling test and blood volume tests. Dr. McHenry is the director of the clinical laboratory, as well as the nuclear medicine laboratory. At all relevant times, all personnel of the nuclear medicine laboratory, with possibly one exception, held certification as nuclear medicine technicians and clinical laboratory technicians. The qualifications of the personnel in the two laboratories are identical in terms of conducting the Schilling test and blood volume tests. Respondent's performance of the Schilling test and blood volume tests in the nuclear medicine laboratory did not and could not result in death or serious harm to the health or safety of any person. Respondent had no previous violations and received no financial benefit from the conducting of the Schilling test and blood volume tests in its nuclear medicine laboratory rather than its clinical laboratory.
Findings Of Fact Patricia Wilkins has been licensed as a laboratory technologist since 1976. She held a laboratory technician license from 1974 until 1976. She has been working continuously as a technician or technologist since 1974. (Testimony of Patricia Wilkins.) Ms. Wilkins obtained her Associate of Science degree from Valencia Community College in April 1974. Her major course of study was Medical Laboratory Technology. In May 1953, she was awarded a Bachelor of Science degree from Tennessee State University, with a major course of study in business. She obtained a masters in Business Administration from Vanderbilt University in July 1985. (Petitioner's application and transcript.) The Department of Health and Rehabilitative Services is responsible for administering Chapter 483, F.S., related to health testing services. The Department prescribes minimum qualifications and licenses clinical laboratory personnel. (Section 483.161, F.S.) Ms. Wilkins' application cites Section 10D-41.68(3)(a), Florida Administrative Code, as the rule under which she believed she qualified for licensure as a supervisor. (Petitioner's application.) The Department's denial letter dated July 23, 1986, is based upon Ms. Wilkins' lack of a bachelor's degree in a chemical, physical or biological science required by Section 10D-41.68(3), Florida Administrative Code.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Patricia Williams' application for licensure as a clinical laboratory supervisor be DENIED. DONE and ORDERED this 8th day of December 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 8th day of December 1986. COPIES FURNISHED: James A. Sawyer, Jr. District Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida 32801 Pat Wilkins 1630 Grange Circle Longwood, Florida 32750 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner's application for a license by endorsement to practice medicine in the State of Florida should be granted or denied.
Findings Of Fact Petitioner is a medical doctor. Petitioner graduated medical school from the University of Miami in Miami, Florida, in May 1994. Petitioner signed an application for medical licensure by endorsement with the Board on January 9, 2003. On or about January 16, 2003, the Department of Health received Petitioner’s application for medical licensure by endorsement. Following receipt and review of the subject application, Petitioner was required to provide some additional information to the Board. Petitioner was eventually required to appear before the Credentials Committee of the Board to answer questions about his application. On October 17, 2003, the Board issued a Notice of Intent to Deny Licensure, in which the Board notified Petitioner of its intent to deny his application. That notice read as follows, in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003 in Tampa, Florida[,] and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant lied before the Committee and lied on the licensure application as to the following: the applicant took a leave of absence during his training; the applicant was placed on probation at 3 schools; the applicant did not finish his training in the normal time frame; and, the applicant answered #15 b, c, d and #31 incorrectly on the application. The applicant is guilty of violating Section 458.331(1)(gg), Florida Statutes, for misrepresenting or concealing multiple material facts at any time during any phase of a licensing or disciplinary process or procedure. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.3331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure be DENIED. Petitioner attended the following four postgraduate training programs (residency programs): Medical College of Pennsylvania; Sinai Hospital1; Wayne State University/Detroit Medical Center; and University of Medicine and Dentistry of New Jersey (“UMDNJ”). Petitioner’s dates of attendance in those four residency programs were as follows: Medical College of Pennsylvania from July 1, 1994 to June 30, 1995. Sinai Hospital from July 1, 1995 to June 30, 1999. Wayne State University/Detroit Medical from July 1, 1999 to June 30, 2001. UMDNJ from July 1, 2001 to June 30, 2003. Question number 15a on the application for medical licensure by endorsement asks, “Have you ever been dropped, suspended, placed on probation, expelled or requested to resign from a postgraduate training program?” Petitioner answered “yes” to question number 15a and submitted a written supplemental answer which stated, “I was placed on probation regarding the expectations of running a University service in a manner that kept attending physicians informed of patients’ clinical changes in July of 2000. Specific goals were given to me that I immediately fulfilled and was taken off probation in September of 2000 and remained in good academic standing until the time of my graduation.” On his application for licensure, Petitioner only admitted to being on probation at one residency program, Wayne State University/Detroit Medical Center. During the processing of the subject application, an employee of the Department of Health, Wendy Alls, advised Petitioner as follows by e-mail: “We are in receipt of your response to the inquiry from Wayne State University [Sinai Hospital], regarding your Residency from 7/95 to 6/99. It indicates that you were placed on probation and received negative reports. It also stated that limitations were placed upon you due to academic incompetence. Please respond.” On May 6, 2003, Petitioner submitted an e-mail response to Wendy Alls regarding his probation at Wayne State University [Sinai Hospital] which stated: “It is true that I did receive negative reports during my residency training from 7/95 to 6/99 for my work ethic. However, I was never formally placed on probation as per the guidelines of the Wayne State University. I, as well as the Graduate Medical Education Office, must receive formal written notification identifying the areas of deficiency and the duration of the probation period. Written notification must be submitted to both the GME office and myself after successful completion of the probation period. This was never done. In addition, no limitations or restriction were ever placed upon me due to academic incompetence or for any other reason for that matter.” Petitioner did not admit this on his initial application to the Florida Board of Medicine. Sinai Hospital submitted a Training Evaluation Form to the Board and stated on the form that Petitioner was on academic probation during his residency from 1996 to 1997. Sinai Hospital submitted a report to the Federation Credentials Verification Service (“FCVS”)2 and stated on the report that Petitioner was on academic probation during his residency from 1996 to 1997. Sinai Hospital reported that Petitioner was placed on probation during his residency in response to faculty concerns regarding both academics and behavior. While at Sinai Hospital, Petitioner was informed of the issues he needed to improve during his probationary period. These issues included, but are not limited to the following: Petitioner’s tardiness, sleeping during conferences, unavailability when on call, failing to follow hierarchy, and inability to carry his share of the workload. Petitioner admitted at the formal hearing he was told that he was on probation at Sinai Hospital. During his appearance before the Credentials Committee on September 13, 2003, Petitioner testified under oath, that he did not disclose the fact he was on probation at Sinai Hospital because he was never informed that he “was ever placed on probation.” A letter dated November 4, 1999, from Dr. Andrew Saxe (who was then the general surgery residency program director at Sinai Hospital) states that Petitioner was on “probationary status” at Sinai Hospital during his residency from 1996 to 1997. Dr. Andrew Saxe also noted Petitioner’s probationary status in a memo dated April 28, 1999, which Petitioner himself signed. Petitioner signed a memo dated December 18, 1996, stating that he was on “probationary status” at Sinai Hospital during his residency. Petitioner also signed a memo dated April 16, 1997, stating that he was “off probationary status” at Sinai Hospital during his residency. Wayne State University/Detroit Medical Center submitted a Training Evaluation Form to the Board and stated on the form that Petitioner was on academic probation during his residency from 1999 to 2000. Petitioner failed to fully disclose all of the reasons why he was placed on probation at Wayne State University/Detroit Medical Center. Wayne State University/Detroit Medical Center submitted a report to the FCVS and stated on the report that Petitioner was on academic probation during his residency for four months beginning in September 2000. The report stated that the probation was based on evaluations which cited “inadequate performances in clinical application of knowledge especially recognitions of own capabilities and limitations. There were also concerns over attention to details and work habits.” Petitioner’s supplemental answer to question 15a does not fully disclose his deficiencies in clinical knowledge and work habits at Wayne State University/Detroit Medical Center. At all times material to this case, Dr. Mark Granick has been the director of the plastic surgery program at UMDNJ. UMDNJ submitted a Training Evaluation Form to the Florida Board of Medicine and stated on the form that Petitioner was on academic probation during his residency “due to poor in-service exam scores.” After UMDNJ submitted the Training Evaluation Form, Petitioner contacted Dr. Mark Granick to discuss his probation at UMDNJ and the “program’s specifications in defining probation.” Dr. Mark Granick was prompted to send a second Training Evaluation Form to the Board, changing the substance of the first submitted Training Evaluation Form. The second Training Evaluation Form to the Board was submitted along with a letter from Dr. Mark Granick dated February 14, 2003, which stated he made an error in filling out the original form. When Dr. Mark Granick drafted Petitioner’s Fourth- Quarter Report on May 31, 2002, he was “documenting the reasons why I wanted him on a period of supervision, which I thought of as probation at that point in time.” Petitioner’s Fourth-Quarter Report dated May 31, 2002, was in fact signed by Petitioner. The Fourth-Quarter Report documented that Petitioner was “deficient on multiple occasions” with regard to Patient Care; Petitioner had a “poor acquisition of a central knowledge base in Plastic Surgery”; Petitioner’s tardiness needed to “stop”; Petitioner demonstrated “immaturity” in interpersonal skills; and, Petitioner had “been acting in an unprofessional manner.” Petitioner signed a memo dated January 8, 2003, stating that he was placed on “probation” at UMDNJ during his residency due to “poor performance on the in-service examination and overall perception of weakness in academic level.” Dr. Mark Granick testified that when he used the term “probation” in the January 8, 2003, memo, the word was consistent with his own thinking, and not consistent with university definitions. Dr. Mark Granick stated that Petitioner indicated to him during their meetings at UMDNJ that Petitioner understood he was on “probation” at UMDNJ. Dr. Mark Granick testified that in his mind he considered it “probation” when he put Petitioner under direct supervision, gave Petitioner academic support, and advised Petitioner of the areas in which he needed to improve. Although the period of academic supervision imposed on Petitioner did not qualify as probation at the university level, it did constitute “probation” in the mind of Dr. Mark Granick and was understood to be “probation” by the Petitioner himself. Petitioner misrepresented to the Board the circumstances which caused him to be placed on probation at Wayne State University/Detroit Medical Center. He also misrepresented his understanding of his probationary status at both Sinai Hospital and UMDNJ. Question number 15c on the subject application asks: “Did you take a leave of absence during a postgraduate training?” Petitioner answered “no” to question number 15c on the application. But Wayne State University/Detroit Medical Center documents show that Petitioner took a month-long leave of absence. Petitioner asserts that his month-long leave of absence from Wayne State University/Detroit Medical Center was not a “leave of absence” because he used a combination of sick time and vacation time. However, Petitioner signed a Family Medical Leave Act Certification asking for a leave of absence due to his being “unable to perform work of any kind” while training at Wayne State University/Detroit Medical Center. Petitioner requested a leave of absence for one month from his training program at Wayne State University/Detroit Medical Center in March of 2001. While on leave in March 2001, Petitioner was hospitalized for benzodiazepine poisoning, pace maker insertion, and possible seizure disorder secondary to cardiac rhythm disturbance. After Petitioner’s hospitalization, Petitioner needed to have a letter clearing him to resume unrestricted activity. During this period of time Petitioner was also told that he should avoid driving motor vehicles. Once questioned by the Credentials Committee, Petitioner admitted to taking a leave of absence in 2001 while training at Wayne State University/Detroit Medical Center. Prior to being questioned by the Credentials Committee, Petitioner concealed from the Florida Board of Medicine that he took a leave of absence while at Wayne State University/Detroit Medical Center. Question number 31 on the subject application asks “In the last five years, have you been treated for or had a recurrence of a diagnosed physical impairment?” Petitioner answered “no” to question number 31 on the application. However, after questioning by the Credentials Committee, Petitioner admitted he had a pacemaker. After his hospitalization, Petitioner had to be cleared by his doctors to return to his duties as a resident. Despite Petitioner’s own definition of “physical impairment,” he concealed his hospitalization, pacemaker, and possible seizure disorder from the Board. Question number 15b on the subject application asks “Was attendance in a postgraduate training program for a period other than the established time frame?” Petitioner answered “no” to question number 15b on the application. Petitioner attended the General Surgery postgraduate training program at Medical College of Pennsylvania for one year from July 1, 1994, to June 30, 1995. Petitioner attended the general surgery postgraduate training program at Sinai Hospital for four years from July 1, 1995, to June 30, 1999. Petitioner attended the general surgery postgraduate training program at Wayne State University/Detroit Medical Center for two years from July 1, 1999, to June 30, 2001. As indicated by the foregoing, Petitioner spent seven years attending general surgery postgraduate training programs. Physicians applying for licensure by endorsement in Florida are required to show that they have completed an “approved residency program” in a “slotted” position. The Accreditation Council for Graduate Medical Education (“ACGME”) accredits postgraduate training programs, sets the standards for training programs, and determines the number of “slotted” positions a program has. The Board considers an “approved residency program” to be one that has been accredited by the ACGME. The Board relies on the ACGME in making determinations for licensure. The Board relies on the information provided in the ACGME directory when processing applications. The ACGME established time frame for completing a general surgery postgraduate training program is five years. The ACGME-established time frame for completing the postgraduate training program in general surgery at Medical College of Pennsylvania, Sinai Hospital, and Wayne State University/Detroit Medical Center was five years when Petitioner attended these programs. Thus, a five-year general surgery residency was considered standard by ACGME, the Medical College of Pennsylvania, Sinai Hospital, Wayne State University/Detroit Medical Center, medical educators, and residents like Petitioner. Therefore, Petitioner would have had to complete all his postgraduate training in general surgery within five years in order to have finished his training within the “established time frame.” It took Petitioner seven years to complete all of his postgraduate training in general surgery. Petitioner’s attendance in his general surgery postgraduate training programs was for a period other than the normal time frame established by both ACGME and by the programs he attended. Question number 15d on the subject application asks, “Were you required to repeat any of your postgraduate training?” Petitioner answered “no” to question number 15d on the application. A memo dated December 3, 1997, written by Dr. Andrew Saxe (general surgery residency programs director at Sinai Hospital) and placed in Petitioner's training file, included the observation that "this is a consequence of his being asked to repeat the current clinical year." In a memo dated April 28, 1999, also written by Dr. Andrew Saxe and also placed in Petitioner’s training file, Dr. Saxe stated, “in light of prior probation and concerns regarding clinical competency an additional year of training would be of service to him.” At final hearing, Petitioner himself explained that each postgraduate year (“PGY”) runs from July 1st of one year to June 30th of the following year. On the Verification of Postgraduate Medical Education form submitted to FCVS, Sinai Hospital listed Petitioner as only completing PGY 2 through PGY 4 while attending their program. On the Verification of Postgraduate Medical Education form submitted to FCVS Wayne State University/Detroit Medical Center listed Petitioner as completing PGY 4 and PGY 5 in their program. While attending his postgraduate training programs, Petitioner was continuously evaluated, as evidenced in his training files. A review of Petitioner’s evaluation forms demonstrates that Petitioner was evaluated as a PGY 2 from July 1995 through June 1997. That means Petitioner was a PGY 2 for two years. A review of Petitioner’s evaluation forms demonstrates that Petitioner was evaluated as a PGY 4 from July 1998 through June 2000. That means Petitioner was a PGY 4 for two years. Therefore, Petitioner repeated both PGY 2 and PGY 4 levels of training. As demonstrated by Petitioner’s postgraduate training files, Petitioner’s education levels of training did not consistently progress through the calendar years. Petitioner concealed from the Board that he had to repeat PGY 2 and PGY 4. Over the course of the last year, the Board has licensed at least 55 applicants who were found to have made one or more material misrepresentations on their licensure applications, or in the course of the licensure process.3 Over the course of the last year, the Board has licensed a number of applicants alleged to have made material misrepresentations regarding one or more of the issues raised in this matter. In a few cases that are arguably similar to the facts presented in this case, the Board has granted the license application, but with conditions that required the applicant to file a new application, to pay a new application fee, and to pay an administrative fine in the amount of $5,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order denying Petitioner’s application for medical licensure by endorsement. DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2004.
Findings Of Fact On March 17, 1977, the Petitioner, Rosa M. Richardson, made application with the State of Florida, Department of Health and Rehabilitative Services, to become a licensed clinical laboratory technologist. After reviewing the application of the Petitioner, the application was rejected by the Respondent. The rejection was made in the form of a letter addressed to the Petitioner, that letter being dated April 12, 1977, and appearing in the record as Joint Exhibit #2 by the parties. Basis for the denial of the license application was the allegation by the Respondent that the Petitioner had failed to have 60 semester hours of academic study as required by Section 10D-41.25(9), Florida Administrative Code. Subsequently, by a pleading entitled Amendment to Notice of Denial of License, the Respondent indicated that it recommended the rejection of the license application on the additional ground that the Petitioner failed to have four years of pertinent experience in an approved laboratory, again under the provisions of Section 10D-41.25(9), Florida Administrative Code. The Petitioner disagreed with the opinion of the Respondent concerning the issue of her qualifications to become a licensed laboratory technologist, and by correspondence of May 9, 1977, requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for consideration. On the initial date of hearing of August 18, 1977, the Petitioner gave testimony concerning her work experience. Some of that experience pertained to a job which she held in May, 1972 through July, 1975, this employment being with the Department of Business Regulation, Division of Pari-Mutual Wagering. The job there was working in the racing laboratory doing routine urinalysis of the horses who were running on the race program. An additional function was to do blood tests for the presence of drugs in certain prisoners who were incarcerated by the law enforcement officials in Dade County. Mrs. Richardson also worked six months at a regional laboratory as a laboratory technician I. This employment was during the year 1975. Those duties included DKU for new born babies, in other words testing for phenylhetonuria. In 1975 through 1977,to include the date of hearing, the Petitioner worked for the North American Biological Laboratory Inc. of Miami, Florida. This job was as a laboratory technician. Some of the duties included routine tests for hepatitis. Mrs. Richardson had also worked from July, 1968 through March, 1977 with the National Cardiac Childrens Hospital in Miami, Florida, as a laboratory assistant. All the work related experience stated above was in the position of a laboratory technician; that is to say that the work was in a position of a laboratory employee and under the supervision of a person qualified in laboratory work. Mrs. Richardson's educational background includes a high school diploma from the State of South Carolina; and two years of various courses at the Miami Dade Junior College to include courses in Math, Biology and Chemistry; however, the only courses in which the Petitioner received credit in this latter enrollment period was the credits for Math. The amount of total hours was three credit hours. This initial enrollment in the Miami Dade Junior College was in the years 1968 through 1970. Mrs. Richardson has also completed a course offered by Charron-Williams College, Paramedical Division. This course was offered in the City of Miami, Florida, and was completed by the Petitioner on August 2, 1974. Moreover, a diploma was given to Mrs. Richardson indicating that she had completed the prescribed course as a clinical laboratory technician. The Respondent concedes that the Petitioner is entitled to function as a laboratory technician and as a matter of fact the Petitioner is licensed by the Respondent in that capacity. As stated before, the opposition of the Respondent to the licensure of the Petitioner pertains to the attempt of the petitioner to be a licensed laboratory technologist. From the position taken at the hearing, the Respondent has abandoned its position in opposition to the licensure based upon the failure of the Petitioner to have completed at least four years of pertinent experience in an approved laboratory. This change in position by the Respondent has been made in view of the prior experience which the Petitioner has. On the second matter of opposition which pertains to the requirement of a minimum of 60 hours or equivalent in quarter or trimester hours in an accredited college or university with a chemical, physical or biological science as a major subject, the Respondent still asserts that the Petitioner has failed to meet those requirements. When this modified position was made known to the Petitioner in the course of the August 18, 1977 hearing, it was brought to the attention of the undersigned that the Petitioner was presently attending a college program which would lead to the completion of 60 semester hours or equivalent of work which would bring about an approval of her application to be a licensed laboratory technologist. By agreement of the parties, the hearing was recessed to allow the Petitioner to pursue that course study with the understanding that if the Petitioner decided that she was unable to achieve licensure through the completion of that course study, this knowledge could be made known to the undersigned and a recommended order would be drafted on the basis of the information which had been presented at the August 18, 1977 hearing. A period of time passed in which no one indicated their position on the question of requiring a recommended order to be made. This period of inactivity came to a close when the undersigned was made aware of the fact that the Petitioner wished to have a determination of the issue of her entitlement to a license as a laboratory technologist made before any completion of the current program in which she has enrolled. Therefore, on March 6, 1978 the hearing was reconvened. At that time it was offered into the record that 21 hours out of the needed 60 hours had been completed in the junior college program in which the Petitioner was now enrolled. Consequently, it left the hearing in the posture that any entitlement which the Petitioner would have to a license as a laboratory technologist must be conferred on the basis of the completion of the course with Charron-Williams College or some other alternative method expressed in Section 10D-41.25, Florida Administrative Code. This provision of the Florida Administrative Code pertains to the requirements for licensure as a laboratory technologist. A perusal of those requirements leads to the conclusion that the only possible basis for licensure which could be demonstrated, after an examination of that section, and in view of the testimony, would be the Section 10D-41.25(9), Florida Administrative Code, that provision states: 10D-41.25 Laboratory Personell -- Quali- fications, Technologist. A technologist shall meet one of the following requirements: * * * (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of pertinent experience in an approved laboratory, or There are insufficient credit hours in the current enrollment In the junior college to meet the 60 semester hours or equivalent demand. Likewise, an examination of the Composite Exhibit #2, by the Petitioner, which includes the diploma, would show that the course study with Charron-Williams College was for purposes of becoming a clinical laboratory technician and not for the purpose of becoming a laboratory technologist. Moreover, assuming for purposes of argument that the program was designed as a course for clinical laboratory technologists, the credit received from Charron-Williams would not qualify because Charron- Williams is not an accredited college or university within the meaning of the aforementioned section of the rule. That rule is Section 10D-41.25, Florida Administrative Code. This conclusion on the subject of accreditation has been reached by an examination of Section 483.051(11), Florida Statutes. That provision says that the Respondent may approve the curriculum in schools and colleges offering education and training leading toward the granting of a license. The Respondent has taken the opportunity to set the qualifications and by its Section 10D-41.22(11), Florida Administrative Code, has defined the term accredited. In that provision it states: 10D-41.22 Definitions. In addition to definitions set forth in Section 483.041, F.S., as used in this chapter, unless context indicates to the contrary, the following terms shall mean: (11) Accredited -- refers to educational accreditation by a nationally recognized accrediting agency or association as deter- mined by the U.S. Commissioner of Education, or the Florida Department of Education, or, on an equivalent basis by the Department of Health and Rehabilitative Services. In the course of the hearing proof was offered that the publication Higher Education-Education Directory (1974-75), published by the U.S. Department of Health, Education and Welfare, Education Division; is a directory which list the institutions accredited by agencies, which agencies are recognized by the U.S. Commissioner of Education as being an acceptable accrediting agency or association. That publication does not list Charron-Williams College as being an accredited institution for purposes of academic study, at the time that the Petitioner received her diploma from that college. Finally, the Charron-Williams College seems to recognize that it has not achieved sufficient status to even have its graduates licensed as clinical laboratory technicians, a lesser level of endeavor than that necessary to become a clinical laboratory technologist. This recognition is stated in the December 23, 1977 letter from the president of the Charron-Williams College, Miami, Florida, addressed to the Director of the Office of Laboratory Services within the State of Florida, Department of Health and Rehabilitative Services. This letter may be found as Respondent's Exhibit #1, entered into evidence. Through that correspondence, the president of the college is requesting of the Respondent those things necessary to have its students accepted for licensure. Upon the consideration of all the facts, the petitioner does not qualify for licensure as a laboratory technologist within the meaning of Chapter 483, Florida Statutes, and Section 10D-41.25, Florida Administrative Code.
Recommendation It is recommended that the license application made by the Petitioner, Rosa M. Richardson, to become a licensed laboratory technologist be denied. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Rosa M. Richardson Leonard Helfand, Esquire 17935 Northwest 47th Place Department of Health and Carol City, Florida 33055 Rehabilitative Services 2445 West Flagler Miami Florida 33135
Findings Of Fact In October 1985, Dennis J. Donegan, Petitioner, qualified for and took the examination for medical technologist in hematology. He passed the examination and was subsequently so licensed. Effective January 1, 1986 new rules were adopted increasing the requirements for eligibility for applicants to take examinations in the various fields of medical technologist specialties. Although this rule was adopted by Respondent after complying with the procedural requirements for adopting rules, Petitioner was not personally notified of the change and was unaware of the increased requirements until his application to take the fall 1986 examinations in chemistry and microbiology specialties was denied. By letter dated August 27, 1986 Respondent denied the application because Petitioner did not meet the education requirements established by the rule which became effective January 1, 1986. Petitioner contends that had he known of the proposed rule change he would have applied and sat for all of the various laboratory technologist specialty examinations before the rule change became effective. Petitioner further contends that under Rule 10D-41.69(6) he is qualified to sit for the examination by reason of being an applicant who was qualified to sit for an examination prior to January 1, 1986.
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.
