The Issue The issue in this case is whether Respondent, Peter N. Brawn, M.D., committed violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on January 21, 2004, in DOH Case Number 2002-15991; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2005). Respondent, Peter N. Brawn, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 75202. Dr. Brawn is board-certified in pathology. Dr. Brawn has not previously been the subject of a disciplinary proceeding in Florida. Dr. Brawn's address at the times relevant to this proceeding was 525 Caroline Street, Key West, Florida 33040. His telephone number was (305) 292-1917. Dr. Brawn's Prescription Dispensing Log of May 14, 2002. Dr. Brawn's prescription dispensing log for May 14, 2002, indicates that Carisoprodol was dispensed to an individual whose initials are J.T. This individual's name is identical, except for the last letter of his last name, to Patient J.T., the patient at issue in the Administrative Complaint. The last letter of the individual listed in the log is "r" (hereinafter referred to as "J.Tr"), while the last letter of the patient in the Administrative Complaint is a "z" (hereinafter referred to as "J.Tz"). The Events of May 17, 2002. On or about May 17, 2002, Douglas Lee Howard, a police officer with the police department of the City of Tustin, Orange County, California, was serving as a resource officer at Tustin High School. Officer Howard was summoned to the assistant principal's office at approximately noon. When he arrived, he observed a student, J.Tz, who had been removed from his classroom, leaning against the wall, falling asleep. J.Tz is the same individual identified in the Administrative Complaint as Patient J.T. J.Tz was 16 years of age at the time of this incident. Officer Howard told J.Tz to go into the assistant principal's office and sit down. J.Tz complied, running into a lobby counter and the office doorjamb on the way. When he attempted to sit, he sat on the arm of the chair, nearly tipping the chair over. When asked if he had taken any drugs, J.Tz produced a white plastic medicine bottle (hereinafter referred to as the "Medicine Bottle"), from his pants pocket. The permanent manufacturer's label on the Medicine Bottle indicates that it contained 100 350 mg tablets of Carisoprodol, commonly referred to as "soma." This is the same medication which Dr. Brawn dispensed on May 14, 2002, to J.Tr. Carisoprodol is a legend drug which acts as a muscle relaxer and is used for muscle strains. Physiologically, it causes drowsiness, dizziness, and loss of coordination or ataxia, all symptoms that were exhibited by J.Tz on May 17, 2002. The Medicine Bottle also contained a printed label (hereinafter referred to as the "Added Label") which had been pasted onto it which included the following information: Peter Nelson Brawn, M.D. 525 Caroline St. Key West Florida 33040 305.292-1917 1-888-491-4545 Patient Name J[] T[] Date Dispensed 5/14/02 Name & Strength of Drug Directions for Use 1 tablet 4X/day The "Patient Name," "Date Dispensed," and "Directions for Use" had been written in ink on the Added Label. The last name of the patient name written on the Added Label can be read as either J.Tz or J.Tr. Officer Howard confiscated the Medicine Bottle from J.Tz. Officer Howard and a school nurse counted 84 pills remaining in the Medicine Bottle. Officer Howard, after asking J.Tz where he had obtained the pills, called the toll-free telephone number listed on the Added Label, a number listed next to Dr. Brawn's name and his address and phone number of record. He spoke to an individual who identified himself as Peter Brawn. The individual he spoke with indicated that, while he had no record of dispensing any medication to J.Tz, he did have a record of having dispensed Carisoprodol to J.Tr on the date in question. The individual Officer Howard spoke with also indicated that J.Tr had reported his age to be 18. The information disclosed to Officer Howard was medical information which would not have been generally known by anyone other than Dr. Brawn. Officer Howard had never spoken to Dr. Brawn and, therefore, could not have identified the individual he spoke to as Dr. Brawn through voice recognition. Based upon the fact that the phone number Officer Howard called was listed on the Added Label next to Dr. Brawn's name, address, and phone number, the fact that the individual identified himself as "Dr. Peter Brawn," and the fact that the individual disclosed medical information which Dr. Brawn was privy to, it is found that the individual Officer Howard spoke to was in fact Dr. Brawn. Dr. Brawn explained to Officer Howard that he had prescribed the Carisoprodol to J.Tr after being contacted by him through two e-mails. Dr. Brawn admitted that he had not spoken to J.Tr and that he had not confirmed any medical history. Having not spoken to J.Tr, it is found that he also did not perform any physical examination of J.Tr. Finally, given the foregoing, it is found that J.Tr and J.Tz are the same individual. It is, therefore, concluded that the J.Tr Dr. Brawn dispensed Carisoprodol to on May 14, 2002, is the Patient J.T. of the Administrative Complaint. Medical Records. Based upon the admissions against interest made by Dr. Brawn to Officer Howard during the May 17, 2002, telephone conversation Officer Howard testified about, it is found that Dr. Brawn, not having taken any medical history of J.Tr and not having given him an examination, did not make any medical record to support his dispensing Carisoprodol to Patient J.T. Without Dr. Brawn's admissions against interest, the evidence failed to prove that Dr. Brawn did not have medical records relating to the medications he provided to J.Tr. No direct evidence, other than phone conversation, was presented that would support a finding that such records do not exist. On or about February 27, 2003, the Department had served a subpoena on Dr. Brawn, through counsel, requesting the following: All medical records and reports for J[] T[z], DOB . . . including but not limited to, patient histories, examination results, treatments, x-rays, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. In the "Application Affidavit for Patient Records Subpoena Without Patient Release" which was used to get permission for serving the subpoena on Dr. Brawn, J.Tz is also referred to as "a/k/a Tr." Despite the Department's awareness of the possibility that J.Tz and J.Tr were the same individuals, the subpoena actually served on Dr. Brawn did not request any medical records or other information relating to J.Tr. By letter dated March 12, 2003, Dr. Brawn, through counsel, informed the Department that he had "no medical records responsive to th[e] subpoena." The Standard of Care. Keith Fisher, M.D., accepted as an expert, testified convincingly and credibly that a reasonably prudent physician, similarly situated to Dr. Brawn, would, before dispensing Carisoprodol, a legend drug: (a) obtain a complete medical history of the patient; (b) make a diagnosis, prepare a treatment plan for the patient, and keep a medical record for the patient; and (c) perform a physical examination of the patient to determine that the patient was truly in need of Carisoprodol. Dr. Brawn failed to take any of the steps Dr. Fisher opined were necessary before dispensing Carisoprodol. Dr. Brawn dispensed the Carisoprodol to Patient J.T. based upon two e-mails he received. He did not conduct any examination of Patient J.T. and he did not obtain a medical history of Patient J.T. These findings, again, are based upon the telephone conversation between Dr. Brawn and Officer Howard. Without those admissions, the evidence in this case failed to prove, however, that Dr. Brawn did not carry out the responsibilities described by Dr. Fisher when he dispensed Carisoprodol to who he believed was J.Tr, but was actually Patient J.T. The Admissibility of Officer Howard's Deposition. Officer Howard's deposition, Petitioner's Exhibit 1, was taken by telephone on July 12, 2002, just over two weeks before the final hearing. Officer Howard's deposition was taken by telephone because he works and resides in California. No order was obtained from this forum or any court to take the deposition by telephone. The Notice of Taking Deposition sent to Dr. Brawn scheduling Officer Howard's deposition indicates that it was to be taken by telephone. It also put counsel for Dr. Brawn on notice of the following: "This deposition is being taken for purposes of discovery, for use at an administrative hearing, or any other purpose for which it may be used under applicable laws of the State of Florida." [Emphasis added]. At no time before or during the deposition was any objection made by counsel for Dr. Brawn to the manner in which the deposition was taken. In particular, no objection was made to taking the deposition by telephone. By his silence, Dr. Brawn gave tacit agreement to the taking of Officer Howard's deposition by telephone. In addition to the foregoing, the Joint Pre-Hearing Stipulation filed by the parties only two days after Officer Howard's deposition was taken does not list Officer Howard as a witness, and the transcript of Officer Howard's deposition is listed as a potential Petitioner's exhibit. Given these facts and the fact that Dr. Brawn was aware that Officer Howard works and resides in California, it is inferred that Dr. Brawn knew or should have known that the deposition would be offered in lieu of Officer Howard's appearance and testimony at hearing. Yet, counsel for Dr. Brawn waited until hearing to raise any objection to the admissibility of Officer Howard's deposition testimony. While part of Officer Howard's testimony constitutes hearsay testimony, in particular, comments made to him by J.Tz, no finding of fact has been based upon such testimony. For example, while Officer Howard testified that J.Tz told him who he obtained the pills from and how, that testimony has not been relied upon to make a finding as to how J.Tz got the pills. During Officer Howard's testimony, he referred to seven photographs which he had taken of the Medicine Bottle. Those photographs were taken by Officer Howard on May 17, 2002. While Dr. Brawn objected during the deposition to their admissibility, he did not state the basis of his objection. At hearing, Dr. Brawn objected to the admissibility of not only the photographs, but also to the entire deposition, suggesting that he had not been able to effectively cross examine Officer Howard about the photographs because he did not have them before him while the deposition was being taken. Officer Howard, however, used the photographs to refresh his memory and described adequately what they depicted. His testimony alone, without regard to any consideration of the photographs, supports the findings made herein. Additionally, the Department's file on Dr. Brawn, which had been provided to Dr. Brawn, contained a single-page copy of an e-mail with all the photographs testified to by Officer Howard. Those smaller photographs, which were available during the deposition, and Officer Howard's description of the Medicine Bottle and its labels, were adequate to eliminate any prejudice to Dr. Brawn.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Peter N. Brawn, M.D., has violated Section 458.331(1)(m), (q), and (t), Florida Statutes (2001), as described in this Recommended Order; suspending his license for a period of two years from the date of the final order; and requiring that he pay an administrative fine of $15,000.00. DONE AND ENTERED this 2nd day of September, 2005, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 2nd day of September, 2005. COPIES FURNISHED: Patrick L. Butler Ephraim D. Livingston Assistants General Counsel Prosecution Services Unit Office of General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Sean M. Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this matter is whether Respondent timely requested an administrative hearing to contest an Administrative Complaint.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing assistance in Florida. See §§ 20.43(3)(g)8. and 464.201-.208, Fla. Stat. Respondent is a certified nursing assistant (“CNA”) in the State of Florida, having been issued certification number CNA 95701. On June 28, 2017, the Department filed an Administrative Complaint against Respondent’s CNA certificate. The Administrative Complaint alleged that Respondent committed “unprofessional conduct” in April 2017 while working at Titusville Rehabilitation & Nursing Center. On June 29, 2017, the Department mailed the Administrative Complaint to Respondent’s address of record with the Department via Certified U.S. Mail. At that time, Respondent’s address of record was 844 Faull Drive, Apartment A, Rockledge, Florida 32955. On August 2, 2017, the Administrative Complaint was returned to the Department as “unclaimed.” On both August 24, 2017, and September 5, 2017, the Department attempted to personally serve the Administrative Complaint on Respondent at the 844 Faull Drive, Rockledge, Florida, address. The service by hand was not successful. Thereafter, the Department published a Notice of Action in Brevard County, Florida, in the Florida Today newspaper for four consecutive weeks beginning on October 2, 2017. On November 8, 2017, Respondent called the Department. He reached Kristen Summers. Ms. Summers is the Department attorney assigned to Respondent’s case and works in the Department’s Prosecution Services section. During the call, Respondent expressed to Ms. Summers that he had not received the Administrative Complaint. Respondent also apprised Ms. Summers that he had a new mailing address of 1946 Otterbein Avenue, Apartment 604, Cocoa, Florida 39296. That same day, November 8, 2017, Ms. Summers arranged for the Department to mail the Administrative Complaint, together with an Election of Rights form, to Respondent at his new address of 1946 Otterbein Avenue, Apartment 604, in Cocoa, Florida. At the final hearing, Respondent admitted that he received the Administrative Complaint, as well as the Election of Rights form, on November 20, 2017. The Administrative Complaint included a NOTICE OF RIGHTS, which stated: A request for petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in the Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. The Election of Rights form included a provision, which stated: In the event that you fail to make an election in this matter within twenty-one (21) days from receipt of the Administrative Complaint, your failure to do so may be considered a waiver of your right to elect a hearing in this matter, pursuant to Rule 28- 106.111(4), Florida Administrative Code, and the Board may proceed to hear your case. Based on the receipt date of November 20, 2017, 21 days after Respondent received the Administrative Complaint was December 11, 2017. At the final hearing, Ms. Summers conveyed that she further communicated with Respondent between November 20, 2017, and December 11, 2017. During their conversation, Ms. Summers notified Respondent that the Department had not received his Election of Rights form. She also stressed to Respondent that, in order to contest the Administrative Complaint, he must submit a written request to the Department before the expiration of the 21-day deadline. In response to Ms. Summers’ remarks, Respondent claimed that he had faxed an Election of Rights form to the Department. Thereafter, Ms. Summers “never looked harder” to locate a fax from Respondent. After a thorough search, however, she concluded that the Department had not received Respondent’s Election of Rights form, or any other document requesting an administrative hearing, on or before December 11, 2017. Despite the fact that she had no record that Respondent had timely submitted an Election of Rights form by December 11, 2017, Ms. Summers magnanimously agreed to extend the deadline for Respondent to file a written request for a hearing. At the final hearing, Ms. Summers explained that during her communications with Respondent, he expressed his desire to contest the Administrative Complaint. However, for some reason his attempt to do so had been unsuccessful. Therefore, in December 2017 (but after December 11, 2017), Ms. Summers told Respondent that, if he still wished to dispute the allegations against him, she would accept his Election of Rights form. Ms. Summers did not give Respondent a specific deadline in which to comply. By March 2018, however, after waiting approximately three months, Ms. Summers still had not received Respondent’s Election of Rights form. She determined that she could not extend the deadline any longer. Therefore, on March 20, 2018, Ms. Summers sent a letter to Respondent at all of his known addresses via Certified U.S. Mail. In her letter, Ms. Summers wrote that the Department’s records indicated that Respondent had received the Administrative Complaint on November 20, 2017. However, the Department still had no evidence that he had submitted the Election of Rights form, or any other responsive pleading, contesting the Administrative Complaint. The letter then specifically instructed Respondent to return the Election of Rights form to Ms. Summers’ office “via mail, fax, or electronic mail within ten days of the mailing of this letter.” Ms. Summers concluded her letter by warning Respondent that “[f]ailure to return the Election of Rights form within this period of time will result in your case being forwarded to the Board of Nursing for determination of waiver and entry of a final order.” Ten days from the date of Ms. Summers’ letter was March 30, 2018. With her letter, Ms. Summers included another copy of the Administrative Complaint and the Election of Rights form. Both the letter and the Election of Rights form included Ms. Summers’ address, telephone number, and fax number at the Department. On March 28, 2018, Respondent received, and signed for, Ms. Summers’ letter at his address on 1946 Otterbein Avenue in Cocoa, Florida. On April 11, 2018, 22 days after the date of Ms. Summers’ letter (and 14 days after Respondent signed for the letter), the Department received, in the mail, an Election of Rights form completed by Respondent. On the form, Respondent indicated that he disputed the allegations of material facts contained in the Administrative Complaint. Respondent also wrote: I have been cleared from [the Department of Children and Families] and a settlement has been reached [with] Titusville Rehabilitation and Nursing Center. I have been going thru some [sic] much and I’m so anxious to get back [to] my profession and what I love to do. I was with this company for 10 1/2 years. I’ve suffered enough humility and false allegations. With his Election of Rights form, Respondent included a letter, dated December 22, 2017, entitled ACKNOWLEDGMENT OF RECEIPT OF SETTLEMENT CHECK (the “Acknowledgment Letter”). The body of the Acknowledgment Letter, which was prepared by a law firm, recorded that Anthony Chambers (Respondent) acknowledged receipt of a check to settle the matter of “Anthony Chambers (SEIU-1199) v. Fl-Titusville Rehabilitation and Nursing Center.” At the final hearing, Respondent fervently declared that he is innocent of the underlying allegations of misconduct at the Titusville Rehabilitation & Nursing Center. Respondent professed that the Florida Department of Children and Families has cleared him of all wrongdoing. Therefore, he was extremely frustrated that the Department continues to pursue this matter, which is preventing him from returning to work as a CNA. Respondent testified that he sent proof to the Department before April 2018 that he did not commit the alleged unprofessional misconduct. At the final hearing, Respondent explained that his proof was the Acknowledgment Letter. As stated above, the Acknowledgment Letter was dated December 22, 2017. When confronted with this fact at the final hearing, Respondent conceded that he did not provide this letter to the Department until after that date. However, he insisted that he submitted it before Christmas via Certified Mail. Respondent did not offer evidence to support this statement. Conversely, Ms. Summers maintained that the Department did not receive any documents from Respondent in December 2017. More importantly, Ms. Summers testified that the Department did not receive an Election of Rights form from Respondent until April 11, 2018. Respondent did not dispute Ms. Summers’ representation that the first time he submitted his Election of Rights form was in April 2018. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file a petition requesting administrative review within 21 days of receipt of the Administrative Complaint. Further, Respondent did not prove that he may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Respondent’s petition for an evidentiary hearing must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 13th day of February, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 2019.
The Issue This issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with regulating the practice of nursing pursuant to Section 20.43(m), Florida Statutes, and Chapters 455 and 464, Florida Statutes. Respondent is, and at all times material hereto, a licensed registered nurse in the state of Florida. Her license number is RN 1948882. Emory L. Bennet Veterans Nursing Home (the facility) is located in Daytona Beach, Florida. At all times relevant here, the facility employed Respondent as its Executive Director of Nursing. At all times material to this case, the facility had a written policy regarding the recording and implementation of verbal orders given by doctors over the telephone. The policy sets forth the following procedures: Verbal orders, including telephone orders, for medications and treatments are taken only by a registered nurse or other licensed or registered healthcare specialists in their own area of specialty and are immediately recorded, dated, and signed by the person receiving the order. Telephone and verbal orders are written in triplicate: Original copy to nursing office where it is promptly faxed, mailed or hand carried to physician for signature. Second copy remains on chart in designated area until signed copy is returned. Third copy is sent to pharmacy for inclusion in the following months [sic] printed doctor's orders. *All telephone and verbal orders are to be written on physician's order sheet by person receiving order. *All telephone and verbal orders by consulting physicians must be countersigned by attending physician. *After receiving telephone or verbal order, that order is to be noted. *All telephone and verbal orders are signed by the ordering physician within 48 hours. The facility's telephone/verbal order form, in triplicate, includes space for the following information: (a) facility name and address; (b) patient name, admission number and room number; (c) attending physician name; (d) date and time of order; (e) date order discontinued; (f) order; (g) signature of nurse receiving order; (h) signature of physician; (i) date of physician signature; (j) initials of nurse notating orders on various documents in patient's medical chart, including but not limited to, nurse's notes, patient care plan, doctor's order sheet, and medication administration record; (k) initials of nurse sending copy of order to pharmacy; and (l) date, time and signature of nurse communicating or following through with order. At all times material here, the facility had an "at- risk committee" (committee) that met at least once a week. The purpose of the committee was to review and make recommendations on patient care issues, including but not limited to, weight loss, bedsores, and falls. For patients considered to be "at risk," the committee's recommendations were supposed to be recorded on a "Residents at Risk" form. This form listed the following: (a) patient's room number; (b) patient's name; (c) problem/concern; (d) recommended intervention; (e) person responsible; (f) date; and (g) follow-up. After the committee made a recommendation that required physician approval, the nurse following through with the recommendation was supposed to contact the doctor by telephone or facsimile transmission, seeking his or her approval. Changes in medication could not be implemented without prior approval from the doctor. If the nurse received a physician's approval in a verbal order, the nurse was supposed to fill out and sign a telephone/verbal order form. The nurse would then implement the order herself or delegate that responsibility to a floor nurse. If a second nurse implemented the verbal order, she would add her initials and signature in the appropriate places, indicating the date and time of each action taken. The doctor would sign the telephone/verbal order form on his next visit to the facility. Respondent was the chairperson of the committee at all times relevant here. Other members of the committee included the following: nursing supervisor for the seven a.m. to three p.m. shift, consultant dietitian, food service director, rehabilitative/restorative supervisor and therapist, care plan coordinator, infection control nurse, and social service director. Occasionally, the facility's pharmacist and administrator participated in the committee meetings. Pursuant to the facility's policy, a telephone order form was to be filled out immediately after and not before receipt of a verbal order from the doctor. Despite this policy, the committee, before and during Respondent's tenure as Executive Director of Nursing, routinely recorded its recommendations for at-risk patients on a telephone/verbal order form as well as the "Residents at Risk" form. On March 23, 1999, Respondent conducted a committee meeting. In addition to Respondent, the following people attended the meeting: (a) Joan Locke, nursing supervisor of the seven a.m. to three p.m. shift; (b) Lee O'Malley, therapist; (c) Sandra F. Law, infection control nurse; (d) Gersom Marchena, social services director; and (e) Debra Weaver, listed as other. During the meeting, Respondent filled out the "Residents at Risk" form for seven patients, including C.K. She did not list W.A. as an at-risk patient. The committee discussed, among other things, standing physician orders for Ativan to be administered to C.K. and for Vistaril to be administered to W.A., both prescriptions on an as needed basis. The committee was concerned due to C.K.'s history of falls and because W.A. appeared to be overly sedated. Ativan and Vistaril are psychotropic medications. Respondent expressed her opinion that the three p.m. to eleven p.m. nursing staff was lazy and using the medicines as chemical restraints for C.K. and W.A. Respondent then directed her subordinate nursing supervisor, Joan Locke, to fill out telephone/verbal order forms discontinuing Ativan for C.K. and Vistaril for W.A. Respondent knew or should have known that the telephone/verbal order forms should not have been completed until after the doctor verbally approved the committee's recommendations. Following Respondent's instructions, Ms. Locke filled out the telephone/verbal order forms to discontinue the above- reference medicines for C.K. and W.A. She did not sign the forms as having received the orders from the doctor. Instead, Ms. Locke gave the telephone/verbal order forms to her subordinate, Barbara Majors, a licensed practical nurse. Ms. Locke instructed Ms. Majors to follow through with the orders. Ms. Majors incorrectly assumed that a doctor had verbally approved the changes in medication for C.K. and W.A. Ms. Majors then signed the forms on the lines for the signature of the nurse receiving the orders. Ms. Majors proceeded to make the proper notations in the patients' charts, to send copies of the orders to the pharmacy, and to remove the medicines from the patients' respective drawers in the medication cart. When the shift changed at three p.m. on March 23, 1999, the nursing supervisor for the three p.m. to eleven p.m. shift was Mary Lou McMaster, R.N. Ms. McMaster questioned the change in medication for C.K. and W.A. Ms. McMaster was unsuccessful in her attempt to contact Dr. Timothy Johnston, the facility's medical director, to verify the orders. Because she was unable to contact Dr. Johnston, Ms. McMaster contacted the facility's pharmacist, Rhomell Calara. Later in the evening of March 23, 1999, Mr. Calara contacted Dr. Johnston by telephone. During the conversation, Dr. Johnston made it clear that he had not approved orders to discontinue medicines for C.K. and W.A. and did not intend to do so. As a result of this telephone call, the medicines were not discontinued. The next morning, March 24, 1999, in a meeting of department heads, Mr. Calara questioned Respondent about the telephone/verbal orders. Respondent did not attempt to explain that the telephone/verbal orders were written as the committee's recommendation. Instead, Respondent stated that she was going to have the medications discontinued again because the afternoon shift was using them as chemical restraints and the patients were too sedated during the day. On the morning of March 25, 1999, Dr. Johnston attended the facility's meeting of department heads. During the meeting, Dr. Johnston questioned Respondent regarding the committee's procedures for implementing physician orders. When Dr. Johnston asked Respondent if she had given a direct order to discontinue the medications or a recommendation to discontinue them, Respondent got up and left the meeting. Respondent did not attempt to explain that the committee's recommendations were written as telephone/verbal orders as a result of miscommunication or other inadvertent mistake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500, placing her on one year's probation with conditions, and requiring her to take appropriate continuing education courses. DONE AND ENTERED this 17th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 17th day of January, 2001. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Williams and Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 Reginald Moore, Esquire 559 Dr. Mary McLeod Bethune Boulevard Suite 1 Daytona Beach, Florida 32115 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Principal Nursing Services, Inc. meets the statutory and rule criteria for the issuance of a certificate of need to operate a home health agency in Dade County, Florida, Agency For Health Care Administration District 11.
Findings Of Fact Principal Nursing Services, Inc. ("Principal") applied to the Agency For Health Care Administration ("AHCA") for a certificate of need ("CON") number 7285 to establish a Medicare certified home health agency in Dade County, AHCA District 11. Principal operated a home health agency in Dade County from 1991 through 1994, which became Medicaid certified in 1992. AHCA is the state agency authorized to administer CON laws for health care facilities and services in Florida. The parties agree that there is a numeric need for the services proposed by Principal, if its application satisfies the other criteria in statutes and rules which AHCA listed as being at issue. Elizabeth Dudek, AHCA's representative, testified that AHCA believes that Principal failed to meet preferences regarding AIDS patients and the Hispanic speaking population, by failing to show the absence of such services currently or any percentages of such individuals who would be served by Principal. AHCA regarded Principal's 3 percent indigent commitment, without more, as an inadequate indicator of meeting unmet needs. AHCA also determined that Principal's application failed to document availability, access, appropriateness, or efficiency of existing agencies, and the financial feasibility of its proposed. On this basis, AHCA maintains that Principal's application should be denied. By proffer, Ms. Dudek also expressed concern that Principal's Medicaid reimbursements have been suspended because some its claims had been questioned. Within the proffer, Ms. Dudek testified that AHCA has become aware of a federal court case against Principal related to alleged Medicaid fraud, and is in the process of drafting rules to permit the denial of CONs under such circumstances. Ms. Dukek cited section 408.034, Florida Statutes, the general authority to issue, deny or revoke CONs, and quality of care criterion as the authority for AHCA to deny a CON to an applicant charged with Medicaid fraud. She compared the situation to one in which AHCA denied a CON to a nursing home after a moratorium was imposed on further admissions based on patient care issues. On the issue of financial feasibility, Roger Bell, AHCA's accountant, testified that Principal failed to list any capital projects or to affirmatively state that it had none. Absent either, AHCA takes the position that an applicant's financial feasibility cannot be determined. AHCA uses an applicant's capital projects list of expenditures proposed, pending, and underway to determine if the applicant also has the resources to undertake the project proposed in its CON application. In this case, AHCA failed to notify the applicant of any deficiency in the capital projects list in a request for omissions responses. Mr. Bell also noted that Zenaida Ulloa was listed as Principal's treasurer in the application. A letter offering funding for the project also referred to a joint financial statement of Zenaida Ulloa and others, while subsequent information indicates that Zenaida Ulloa was not involved with the corporation. Zenaida Ulloa is the wife of Principal's president, Lazaro Ulloa. See, Findings of Fact 30. Examining Principal's monthly financial statements, Mr. Bell found a drastic reduction in revenues, expenses of $35,000 in February 1994, and expenses of $20,000 in March 1994, of which subcontractors were paid $230. On this basis, he determined that the corporation ceased operations in February, while subsequently eliminating expenses and paying down debts from $4,000 in expenses in May to $12 in bank charges in July. Principal's cash overdraft, at the time of hearing, was over $7,000. Mr. Bell also testified concerning errors in the original audited financial statements submitted with Principal's application, including the failure to follow the format and words prescribed by Generally Accepted Accounting Principles ("GAAP"). Specific examples were the absence of a date on the first page, failure to double underline totals, and the word principles misspelled as "principals." The forms used for the "Statement of Income and Retained Earnings" uses the term "sales," as if for a retail establishment, rather than "revenue from patient care" which is more typical for a health care business. While admitting that any one of these errors is in and of itself meaningless, Mr. Bell found more serious discrepancies. Accrued liabilities for 1992 are listed as $10,000 and the additional paid in capital as $500, yet the total at the bottom of the column, in which these are the only two items, is $54,429. Accrued liabilities are listed on the page labeled "Liabilities and Stockholder's Equity" as $10,000 in 1991 and $10,000 in 1992, however, the 1992 over 1991 increase in accrued liabilities on the page labeled "Statement of Cash Flow" is listed as $10,000 rather than zero. Although liabilities are disclosed, there is no interest expense. GAAP requires notes on fixed assets and depreciation, and on stock ownership and transactions, which are missing from Principal's audited financial statements. Mr. Bell compared the audited financial statements to the pro forma of projected income and expenses from operations. Although the audited financial statements show revenues of $89,000 in year one and $145,000 in year two, the pro forma projected a one thousand percent increase in revenues over those reported in 1992. The pro forma is discredited because the normal situation is that a pro forma will project reasonable growth and inflation over current operations, according to Mr. Bell. Projected charges for home health visits were the same for the first and second years, in contrast to any normally anticipated inflation. Charges were also virtually the same for each type of visit, despite variations in the costs of nursing, therapy, and home health aids. Mr. Bell's testimony on the financial feasibility of Principal's proposal was inconsistent with AHCA's findings in the state agency action report ("SAAR") issued after the initial review of the applications submitted in this batching cycle. At least one inconsistency, a 5 percent profit in the pro forma in contrast to 14.3 percent profit from actual 1992 operations, shows that the pro forma is a more conservative projection of revenue. Ruling was reserved, after objections and motions by Principal's counsel, on whether to consider or strike from the record Mr. Bell's testimony about comparisons he made between Principal's audited financial statements and its income tax returns. Ruling was also reserved on the admissibility of the income tax returns to allow counsel to make legal arguments in their proposed recommended orders. Principal's counsel objected to the authenticity of the tax returns, claiming not to know whether or not he produced the documents in response to AHCA's discovery request. On this basis, the tax returns are not received in evidence, and the testimony related to the tax returns is stricken. Subsection 408.035(1)(a) - State and Local Health Plans and Rule 59C-1.030, Florida Administrative Code Principal's application meets the first preference of the state and district health plans by proposing services to identifiable sub-groups with unmet needs, including AIDS patients. Services are also provided to Spanish and Creole speakers. Principal has had a Medicaid waiver to allow reimbursed care for AIDS patients since October 1992. Principal also served areas of Dade County which some home health agencies refuse to serve, including Liberty City, Overtown, and Little Haiti. In the SAAR, AHCA found that Principal only partially met the first preference. AHCA, in the SAAR, gave full credit for Principal's proposal to serve 85.7 percent Medicaid in year one and 84.9 percent Medicaid in year two, as meeting both the district health plan preference number 2 and state health plan preference number 3. Principal was already serving Medicaid patients and its commitment was the largest proposed by any of the applicants in this batch. Initially, Principal projected 9,730 Medicare visits for 6.4 percent of revenue in year one, and 17,518 visits for 10.3 percent revenue in year two. However, Principal's witnesses testified that, if necessary, Principal would substitute Medicare visits for Medicaid visits to be financially feasible. On the basis of the evidence presented at hearing, Principal is not committed to meeting the preference. The preference is, however, of questionable value. Before any doubt about the Medicaid level had been raised, AHCA used the preference against the applicant, questioning its commitment to serve as a Medicare-certified agency, due to the sizable Medicaid commitment. The SAAR includes a statement that "An overview of the application does not reflect an overwhelming desire to provide services to Medicare eligible clients." In an apparent contradiction, Principal received only partial credit for service to Medicaid patients. Principal is also entitled to at least partial credit for meeting the criterion of subsection 40.035(1)(n), for its past, but not proposed, service to Medicaid and the medically indigent. Principal meets the third local and the second state preferences by providing or proposing to provide ventilator and intravenous therapies, as a part of a full range of high technology services. Dr. Elton Scott, an expert testifying for Principle, demonstrated that AHCA erroneously overlooked Principal's plans to offer intravenous chemotherapy and other IV therapies, as outlined in its application, and gave Principal only partial credit for the services proposed. The fourth state preference, for meeting the needs of a county under- served by home health agencies, is inapplicable. According to Dr. Scott, no determination has been made that either District 11 county, Dade or Monroe, is an under-served county. AHCA's representative conceded at hearing that Principal meets the sixth state preference requirement for quality assurance methods, including programs to ensure that its personnel are well trained. Principal committed to obtaining accreditation from either the National League for Nursing, or the Joint Commission on Accreditation of Health Care Organizations, also in compliance with preference six of the state health plan. District health plan preference six requires working arrangements with hospitals, physicians, nursing homes and community service agencies. Dr. Scott noted that the preference requires working arrangements, not written contracts, and that AHCA gave another applicant in this same batch credit for listing entities "with which it had undertaken steps to establish relationships." The depositions of other applicants' representatives confirm that there were no commitments to enter into the arrangements required, prior to AHCA's issuance of their CONs. Mr. Ulloa confirmed that Principal has had and could reestablish such working arrangements. Principal meets the requirements of the preference. Subsection 408.035(1)(b) - availability, access, utilization and efficiency of existing services Consistent with the position taken earlier in the SAAR, AHCA noted, at hearing, that Principal failed to provide any inventory or analysis of existing Medicare certified home health care agencies. Subsection 408.035(1)(c) - quality of care and 408.035(1)(l) - effects of competition Principal established that it has provided services of unquestioned quality, having been licensed, surveyed and relicensed by AHCA. In addition, the quality of its proposed services was established, in part by Principals' compliance with state health plan preferences two and six. Dr. Scott also explained how Principal's proposal will foster competition to provide a higher quality of care. Although Principal's projected Medicare costs are among the lowest in the batch, other charges may not be affected directly. According to Dr. Scott, Medicare cost-based reimbursement results in a lack of concern with charges by providers or the clients. Competitors use non-cost factors to attract clients, such as quality of services, which is therefore, enhanced when new providers enter the market. See, Findings of Fact 15 and 17. Subsection 408.035(1)(d) - alternative types of services in the district AHCA found documentation submitted by all of the applicants in the batch inadequate in addressing alternative types of services which could also meet the needs of Medicare home health agency clients. AHCA's application of the criterion was not inconsistent. In general, as AHCA noted, Principal and the other applicants in the batch relied on the published fixed need to respond to the statutory criteria related to need, availability, access, and alternatives. Section 408.037(2)(a) - capital projects list Lazaro Ulloa, Principal's president, testified that Principal has no other capital projects. AHCA, in the SAAR, reached the same conclusion, after having made no omissions request for capital projects information. For this batch, AHCA treated the absence of a capital projects list as equivalent to a statement that none existed. Sections 408.035(1)(h) and 408.035(1)(i) - Resources and Financial Feasibility Mr. Ulloa testified that he has the resources and funds necessary to establish the project proposed, including the ability to provide $43,500 in capital costs. He also claimed that Principal is entitled to approximately $160,000 billed and another $300,000 to $400,000 in unbilled Medicaid claims, for which less than $100,000 in costs, if any, are due to sub-contractors. After, Medicaid payments stopped, officers of the corporation paid Principal's salaries, wages, rent, legal fees, and loan payments, including interest, for computers and two vehicles. These payments have been made by Mr. Ulloa or his parents. Mr. Ulloa was unable to explain why, on financial statements loans to stockholders were not reduced or stockholders equity increased to reflect those payments. The testimony tends to support Mr. Bell's criticism of the preparation of Principal's financial statements and pro forma. See, Findings of Fact 9 and 10. The company reported $37,615 as its total corporate assets, which also represented its total liability at the time, in the form of stockholder equity. Principal's project will have capital costs of $43,500. Mr. and Mrs. Ulloa committed to provide the funds for the project, if necessary. Although Principal has ceased operations, it does have some former salaried and contract staff willing to return if the CON is granted. Principal, according to Dr. Scott, is in no worse position than a start-up company which was approved by AHCA. It is Dr. Scott's opinion that the project is still financially feasible even if Medicare replaces all projected Medicaid visits. Any indigent care provided would have to be offset by private pay patients, because those costs cannot be passed on to Medicare. See, Findings of Fact 14. AHCA contends that Principal's proposal is not financially feasible or cannot be found financially feasible for the reasons given by Elizabeth Dudek and Roger Bell. In response, Principal's accountant, Alfonso Rodriguez, testified, by deposition, that the audited financial statements were prepared according to GAAP, and that it is his opinion that Lazaro Ulloa can provide that $43,500 in capital costs for the project. Mr. Rodriguez, in deposition, responded to certain comments regarding the audited financial statements as follows: QUESTION: You have seen, have you not, a copy of this document called State Agency Action Report? ANSWER: Yes. QUESTION: And you looked at that pursuant to my request, is that correct? ANSWER: Right. QUESTION: Let me ask you to look at page 64 of that document, please. ANSWER: OKAY. QUESTION: Page 64 has a reference to Principal Nursing Services and they made some comments that I believe about the financial statements that you prepared that were attached to Principal's application, is that your understanding? ANSWER: Right. QUESTION: Would you read -- would you read and have you reviewed those comments? ANSWER: Yes, I read them over once. QUESTION: Have you compared those comments to the documents that you prepared for Principal Nursing Services. ANSWER: Yes QUESTION: Let me read the first comment into the record and ask you if you have a response to it? The first sentence says: During the course of the review, it was noted that the applicant's CPA had not accounted for shareholder's equity in the proper category. ANSWER: I believe that was - yeah, I don't know exactly what they mean, but it already has been cleared, it was cleared on that one we discussed. QUESTION: Do you believe that statement was correct? ANSWER: No. When I read it I didn't understand it. But with all the financial statement it was clear. I don't know what they mean when accounted for stockholder's equity in the proper category. QUESTION: Do you believe that you accounted for stockholder's equity in the proper category in accordance with how you prepared the financial statements? ANSWER: Yes. QUESTION: I want you to look at the second sentence. Quote, it was also noted under the category of net sales as a category of subcontract services that is not explained in the note; do you understand that statement? ANSWER: No. Because the reason I don't understand it is subcontract services is a cost, it's not in any way related in net sales. QUESTION: It's reflected in Principal's audited statement? ANSWER: It was a separate category, separate category as a cost of sales. QUESTION: Cost of sales being monies owed -- that Principal may have owed to subcontractors of Principal? ANSWER: Right. Then finally, Page 38, Line 18: QUESTION: All right. But if the financial statement reflects the notation "See attached schedule" it would be considered incomplete if that schedule's not attached, correct? ANSWER: What I'm saying is I have the schedule in my work papers. That completes our reading from the deposition of Alfonso Rodriguez. Transcript, Pages 466-469. The testimony of Mr. Ulloa and the deposition of Mr. Rodriguez, submitted into evidence by Principal, fail to explain the discrepancies in the audited financials and pro forma, which were noted by AHCA's accountant. See, Findings of Fact 9 and 10. Rule 59C-1.008, Florida Administrative Code - Corporate Officers and Owners Mr. Ulloa testified, and his wife's affidavit confirmed, that she briefly worked at Principal in February and March 1993. During that time, plans were made, but never finalized, for Mrs. Ulloa to join the corporate board and comptroller/Treasurer. Another applicant in the same batching cycle had a change in directors and submitted a subsequent resolution. The Principal proposal does not rely on the experience, knowledge or expertise of Mrs. Ulloa and, on that basis, Mr. Ulloa asserts that the error in listing Mrs. Ulloa was not material. Based on the failure to establish the financial feasibility of Principal's pro forma, primarily due to unexplained and apparently inconsistent entries on its audited financial statement, Principal's CON application should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency For Health Care Administration enter a final order denying Certificate of Need 7285 to Principal Nursing Services, Inc. DONE AND ENTERED this 27th day of March, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 27th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4913 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner, Principal Nursing Services, Inc.'s Proposed Findings of Fact. Accepted in Findings of Fact 3. Accepted in or subordinate to preliminary statement and Findings of Fact 1. Subordinate to Findings of Fact 15. Accepted as correct, on balance, in Findings of Fact 13-23. Rejected in relevant part in Findings of Fact 22. Accepted in Findings of Fact 23. Accepted in or subordinate to Findings of Fact 13-18. Accepted in part and rejected in part in Findings of Fact 13-31. 9-23. Accepted in relevant part or subordinate to Findings of Fact 3,4,5 and 22. 24-27. Accepted in general in Findings of Fact 20. Conclusion rejected in Findings of Fact 29 and 31. Accepted in or subordinate to Findings of Fact 30. Accepted in or subordinate to Findings of Fact 25. Accepted in or subordinate to Findings of Fact 5. 32-33. Accepted in or subordinate to Findings of Fact 20. 34. Accepted in Findings of Fact 14. 35-36. Accepted in or subordinate to Findings of Fact 25. Accepted in or subordinate to Findings of Fact 20. Accepted in Findings of Fact 25 and 29. Accepted facts in preliminary statement and Finding of Fact 22. Accepted in Findings of Fact 23. Accepted in Findings of Fact 30. Accepted in or subordinate to Findings of Fact 30. Accepted in Findings of Fact 15. Accepted in Findings of Fact 17. Accepted in relevant part in Findings of Fact 13-30. 46-47. Accepted in relevant part or subordinate to Findings of Fact 6 and 23. Accepted in or subordinate to Findings of Fact 24. Accepted in Findings of Fact 13 and 22. Accepted in Findings of Fact 15. Accepted in Findings of Fact 17. Accepted in Findings of Fact 18. Accepted in Findings of Fact 13. Accepted in Findings of Fact 25. Rejected as subordinate to Findings of Fact 13 and 22. Issue not established in Findings of Fact 8 and 24. Accepted in Findings of Fact 5. 58-59. Accepted in Findings of Fact 6 and 23. 60-61. Rejected conclusions in Findings of Fact 8-10, and 24-29. Respondent, AHCA's Proposed Findings of Fact. Accepted in Findings of Fact 1. Accepted in Findings of Fact 7. Accepted in or subordinate to Findings of Fact 1. Accepted in Findings of Fact 6. Accepted in or subordinate to Findings of Fact 1 and 23. Accepted in or subordinate to preliminary statement. 7-11. Accepted in or subordinate to Findings of Fact 7 and 30. 12-15. Accepted in or subordinate to Findings of Fact 6. 16-20. Accepted in Findings of Fact 13. 21. Rejected in Findings of Fact 13. 22-24. Accepted in or subordinate to Findings of Fact 14. 25-28. Accepted in or subordinate to Findings of Fact 15. 29-30. Accepted in or subordinate to Findings of Fact 18. 31. Accepted in or subordinate to Findings of Fact 18 and 24. 32-35. Accepted in or subordinate to Findings of Fact 13 and 21. Rejected in Findings of Fact 13. Accepted in or subordinate to Findings of Fact 15. 38-39. Rejected in Findings of Fact 15. Accepted in or subordinate to Findings of Fact 14. Rejected in Findings of Fact 13. Accepted in or subordinate to Findings of Fact 24. Accepted in Findings of Fact 14. 44-45. Accepted in Findings of Fact 16. 46-48. Accepted in or subordinate to Findings of Fact 17. 49-51. Accepted in or subordinate to Findings of Fact 19. 52. Rejected in Findings of Fact 14. 53-54. Accepted in or subordinate to Findings of Fact 19. 55-56. Accepted in or subordinate to Findings of Fact 24. Rejected in part in Findings of Fact 20 and accepted in part in Findings of Fact 14. Accepted in Findings of Fact 20. 59-70. Accepted in or subordinate to Findings of Fact 20. 71-72. Accepted in Findings of Fact 8 and 24. 73-76. Accepted in Findings of Fact 21. 77-87. Accepted in or subordinate to Findings of Fact 8 or 24. 88. Accepted in or subordinate to preliminary statement. Rejected in part in Findings of Fact 11. Issue not reached. 92-93. Rejected in Findings of Fact 23 and 30. 94-104. Accepted in Findings of Fact 8-11, and 24-29. 105-107. Issue not reached, See, Findings of Fact 12. 108-109. Accepted in or subordinate to Findings of Fact 10 and 11. 110-113. Accepted in or subordinate to Findings of Fact 8-11 and 24-29, except first sentence of footnote in Findings of Fact 8. 114-116. Accepted in or subordinate to Findings of Fact 20. Rejected in Findings of Fact 20. Subordinate to Finding of Fact 20. 119-120. Accepted in relevant part or subordinate to Findings of Fact 14. 121. Accepted in part in Findings of Fact 29. COPIES FURNISHED: James H. Peterson, III, Attorney Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, Florida 32303-4131 Heidi Garwood, Attorney 1317 Winewood Boulevard Building B, Room 234 Tallahassee, Florida 32399-0700 Steven M. Weinger, Attorney Elaine Tetzell, Attorney Kurzban, Kurzban & Weinger, P.A. 2650 Southwest 27th Avenue, 2nd Floor Miami, Florida 33133 R. S. Power, Agency Clerk Agency for Health Care Administration Atrium Building, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Harold D. Lewis, Esquire The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Respondent's medical license should be disciplined because he filed false insurance claims.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Pursuant to Section 20.43(3)(g) Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils or boards, as appropriate, including the issuance of emergency orders of suspension or restriction. Dr. Shugar is a physician holding Florida license ME 0053263, which was issued to him by Petitioner. Dr. Shugar, during all times pertinent, practiced medicine in Perry, Florida. Dr. Shugar began practicing in Perry in 1991. Although Respondent is currently known to be primarily an ophthalmologist during all times pertinent, he was engaged in the general practice of medicine. Patient B.O. B.O., a 49-year-old female, became a patient of Dr. Shugar in February 1995. On June 8, 1996, Patient B.O. was seen by Dr. Shugar. He observed a lesion on her nose. Patient B.O. and Dr. Shugar were concerned that the lesion might be malignant. On or about July 27, 1996, Patient B.O. presented to Dr. Shugar for the purpose of having the lesion removed. Using local anesthesia, Dr. Shugar surgically removed the lesion and some surrounding tissue. This material was sent to a pathologist in Tallahassee, Florida, who upon examination, opined that the growth was a benign nevus rather than a carcinoma. On August 5, 1996, the sutures were removed and Patient B.O.'s medical records indicated that the area was, "well healed." Patient B.O. had no complaints with regard to the outcome of the surgery. When Patient B.O. subsequently received a bill in the amount of $2,225, she was shocked at the amount. She called Respondent's office and her insurance company. She personally paid only $100. Sheila Hilson was the person who assigned Physicians' Current Procedural Terminology (CPT) codes for Dr. Shugar. CPT codes are numbers assigned to actions taken during patient evaluation and management and to procedures performed. CPT codes are widely used by government agencies and insurance companies. CPT codes translate into dollar amounts used for billing patients and provide the basis for reimbursement by insurers and governmental agencies. A CPT code for a simple procedure will translate into a certain number of dollars. A CPT code for a more complex procedure will translate into a larger number of dollars. Dr. Shugar utilized a superbill, which is a list of CPT codes provided in the written word and in a bar code. The superbill contained only the most common ailments. In the usual case, Dr. Shugar, subsequent to treating a patient, would circle the appropriate CPT code on the superbill. The superbill with the circled item would then be forwarded to his administrative office and the appropriate charge would be billed to the patient or third party payer in accordance with Dr. Shugar's direction. If the superbill did not contain an item for a particular procedure, Dr. Shugar would make a note on a patient and evaluation management form and his clerical staff would divine the correct CPT code from his note. Dr. Shugar did not regularly supervise the billing process. He would only become involved when a problem was encountered. As noted above, Dr. Shugar, during times pertinent, had a general or family type practice which meant that he treated a wide variety of ailments. Because of this, it was impossible for his superbill to reflect all of the work that he accomplished. The procedure performed on Patient B.O. was not reflected on the superbill. This being so, Ms. Hilson reviewed Respondent's notes on the patient management and evaluation record and determined a CPT code. This was her usual practice when the procedure was not listed on the superbill. Ms. Hilson, when reviewing the patient evaluation and management form, noted that Respondent had performed work on Patient B.O.'s nose and observed the word "plasty." She began her code determination exercise by turning to the section under "nose" and thereafter went to the section under "repair." Following this trail resulted in the conclusion that the procedure was a rhinoplasty. As will be noted hereinafter, determining correct CPT codes is fraught with difficulty and often experts on CPT codes will disagree as to the proper code to be assigned when presented with identical descriptions of a procedure. That having been said, Ms. Hilson's determination, nevertheless, was far off the mark. A rhinoplasty, CPT Code 30400, is what is colloquially called a "nose job." A rhinoplasty is a substantially more involved procedure than the excision of a lesion. Moreover, it is usually, but not always, considered a cosmetic procedure of a type not usually reimbursed by insurance. Ms. Hilson also filed for this procedure under CPT Code 13152, "Repair, complex, scalp, arms, and/or legs; . . . 2.6 cm to 7.5 cm." It was this error that resulted in Patient B.O.'s being shocked when she received her bill. The bill, in the form of a claim, was also sent to B.O.'s medical insurance carrier. Patient B.O.'s insurance carrier responded to the claim with a letter dated August 27, 1996, which was date stamped by Respondent's office on September 5, 1996. This letter requested documentation as follows: (1) Degree of functional impairment; (2) date of injury; (3) X-ray report of the injury; (4) pre-operative photographs; and (5) patient's history and physical examination report. Neither the coding of the procedure nor the word rhinoplasty was mentioned in the letter. On September 10, 1996, Ms. Hilson discussed the matter with Dr. Shugar for the first time. Dr. Shugar answered the carrier's letter on September 23, 1996. Neither the coding of the procedure nor the word rhinoplasty was mentioned in this letter. The response was factually correct. The claim, despite the additional information supplied by Dr. Shugar, was denied by the carrier. In the ensuing months Ms. Hilson and the carrier exchanged letters. Eventually Dr. Shugar discovered that Ms. Hilson had filed a claim for a rhinoplasty. Subsequently, on September 8, 1997, the claim was re-filed under CPT Codes 11441 and 13150-51. This was incorrect also and resulted in codes which caused Dr. Shugar to be inadequately reimbursed for the procedure performed. Subsequent to this filing, Patient B.O.'s insurance carrier paid $600 to Dr. Shugar. This amount, along with the $100 paid to him by Patient B.O., resulted in Respondent's receiving a total of $700 for treating the lesion on Patient B.O.'s nose. Patient V.A.A. V.A.A. became a patient of Dr. Shugar in 1995. On February 14, 1996, Patient V.A.A. presented to Dr. Shugar with a lesion on her cheek and a crusted place on her nose. Both areas caused concern for malignancy which Dr. Shugar desired to rule out. Dr. Shugar made a referral to a Dr. Grate in Tallahassee, Florida, an ear, nose, and throat physician, because of Respondent's concern that the area on her nose was a basal cell carcinoma. On March 23, 1996, Dr. Shugar removed the lesion on Patient V.A.A.'s cheek. Dr. Shugar noted that the lesion was 1.1 centimeters in diameter. He documented in V.A.A.'s medical record that he "excised under loupe mag., 3.0 cm length, complex closure." A pathology report was generated by Ketchum Wood and Burgert Pathology Associates which diagnosed an absence of malignancy. On April 4, 1996, it was noted that the incision was "well healed." Ms. Hilson reviewed the Patient Evaluation and Management Record and filed a claim with Patient V.A.A.'s insurance carrier for the cheek surgery using CPT Codes 11403 and 13131. CPT Code 11403 addresses, "Excision, benign lesion, except skin tag (unless listed elsewhere), trunk, arms or legs; . . . lesion diameter 2.1 to 3.0." CPT Code 13131 addresses, "Repair, complex, forehead, cheeks, chin, mouth, neck, axillae, genitalia, hands and/or feet; 1.1 cm to 2.5 cm." Ms. Hilson's use of CPT Code 11403 was improper because that code does not address procedures involving the cheek and because the lesion, as noted in the Patient Evaluation and Management Record, was 1.1 centimeters. It was the length of the closure which was three centimeters. Upon consideration of all the available evidence, it appears that Ms. Hilson simply made a coding error because of a transposition of the length of the lesion and the length of the closure. Because of the coding error, Dr. Shugar obtained less compensation than he was entitled to. When Patient V.A.A. came to Dr. Shugar on April 4, 1996, for follow-up on her cheek incision, Dr. Shugar was concerned because Patient V.A.A. had not visited Dr. Grate as she had been advised. Patient V.A.A. had decided to forgo treatment by Dr. Grate because her medical insurance would not pay for treatment by him. Dr. Shugar had previously made a differential diagnosis on the suspicious area on V.A.A.'s nose of basal cell and squamous cell carcinoma. The passage of time since February 14, 1996, when he first observed the area, and a closer examination of the area, enabled Dr. Shugar to make a diagnosis of basal cell carcinoma during the April 4, 1996, visit. After considering the desires of Patient V.A.A. and the treatment regimens available in the local area, Respondent decided on that date to prescribe Efudex. Efudex is a chemical, which when applied to a growth on the skin, will destroy the growth and, for that matter, skin not having a growth upon it. Dr. Shugar referred to this procedure as, "Chemical treatment of malignancy." This was billed by Ms. Hilson under CPT Code 17283. This code is under the general heading of, "Destruction, Malignant Lesions, Any Method," and specifically, "Destruction, malignant lesion, any method, face, ears, eyelids, nose, lips, mucous membrane,: . . . lesion diameter 2.1 to 3.0 cm." Patient V.A.A. obtained the Efudex and applied it to the lesion herself, having been instructed by Dr. Shugar as to its proper use. On April 25, 1996, Dr. Shugar saw Patient V.A.A. and instructed Patient V.A.A. to discontinue the use of the Efudex. On May 29, 1996, V.A.A.'s last visit with him, Dr. Shugar noted that the carcinoma on her nose was "well-treated." After receiving the superbill for the April 4, 1996, treatment provided to Patient V.A.A., Ms. Hilson selected CPT Code 17283. She selected this code based upon Dr. Shugar's note that he had used "chemical treatment." This selection was not discussed with Dr. Shugar. When Patient V.A.A. received her explanation of benefits she believed it to be in error because it indicated a surgical procedure had been performed on April 4, 1996. She contacted Dr. Shugar's office on September 5, 1996, and pointed out that she did not have a surgical procedure on April 4, 1996. Dr. Shugar called her and explained that the chemical treatment, according to the CPT manual, was the same as a surgical procedure. In the 1996 CPT Code Manual, the narrative description for CPT Code 17283 states, "Destruction, malignant lesion, any method, . . . nose." Destruction is further defined to include chemical treatment. The CPT Code Manual language is amended from year to year to resolve ambiguities and confusion over code selection. In 1999, the CPT Code Manual was amended to clarify that initiation of treatment with Efudex should no longer be billed under the series of codes for chemical treatment of benign lesions. Dr. Shugar was correct in his use of the 1996 manual. Patient V.A.A. was insured under a cancer policy issued by American Family Life Assurance Company. In October of 1996, Patient V.A.A. was provided a claims form by her insurance representative. She called Dr. Shugar to inquire again about the nature of the procedure he provided. Patient V.A.A.'s insurance representative suggested that she complete it and send it to the insurance company. She either faxed or personally delivered it to Dr. Shugar's office. Subsequently, she received the claims form from Dr. Shugar's office. The claims form has what appears to be Dr. Shugar's initials on it. Dr. Shugar denied that he initialed the form. Broward Taff, who was accepted as a handwriting expert, testified that the initials on the claim form were inconsistent with the more than one hundred known signatures and initials provided by Dr. Shugar. The claim to the insurance company would have resulted in a payment directly to Patient V.A.A. The record contains no evidence that Dr. Shugar was aware that the claim form was submitted to his office or that he participated in its completion. Petitioner's experts Jean Acevedo conducts coding and billing compliance audits for health care practices. She is a licensed health care risk manager and a certified professional coder. She was accepted as an expert in the area of CPT coding. In conducting an audit she reviews between ten and 15 patients per provider. Physicians make mistakes when determining CPT codes upon which billing amounts are determined. She is of the opinion that a physician who is in a general practice treating a wide variety of maladies is apt to make more billing errors than a physician who is a specialist. When performing a compliance audit on providers who have been previously determined to have submitted false bills, Ms. Acevedo will audit between 20 to 50 patient charts. She considers a provider to be in compliance so long as the errors do not exceed five percent of the total dollar amount of the charges billed. The testimony of Ms. Acevedo was credible. Thomas Breza, M.D., is a dermatologist. He was accepted as an expert witness in the area of CPT coding. He never performs services which are not on his superbill. It is his opinion that physicians are responsible for every billing error which results in an incorrect claim being filed. He believes he would be committing fraud if he allowed an incorrect bill to leave his office. However, Dr. Breza admitted that he has mailed incorrect bills from his office. Dr. Breza's testimony indicated that his personal definition of fraud is different from the legal definition of fraud. His opinion, with regard to the requirements of accuracy, are based on his experience as a specialist and failed to take into account the variety of diagnoses and procedures experienced in a general practice. Diana Calderone, M.D., was accepted as an expert witness in the area of CPT coding. Like Dr. Breza, Dr. Calderone takes a Draconian approach when addressing coding errors. While opining that coding and resultant billing errors were unacceptable, she conceded that total accuracy is unrealistic and acknowledged that she had made mistakes in this area. Dr. Calderone, is also a dermatologists with little or no experience with the coding problems inherent in a general practice. Margie Vaught is an independent health care consultant. She is a certified professional coder, and sits as a board member of the National Advisory Board of the American Academy of Professional Coders. She performs compliance audits for health care practices. She was accepted as an expert witness in the area of CPT coding. She reviews between ten to 30 patient charts per practitioner when doing a compliance audit. She has never made an audit that did not reveal coding errors. Ms. Vaught reviewed all of the information provided in this case regarding the bills prepared by Dr. Shugar. It is her opinion that there is insufficient information for one to determine whether there is any pattern to Dr. Shugar's billing procedures. Ms. Vaught noted that the HCFA Form 1500 was a form developed for billing in the case of federal medical programs. A HCFA Form 1500 will be accepted by federally funded programs with the signature of a physician's agent rather that the actual signature of the physician. She explained that many private carriers use the HCFA Form 1500 for billing purposes and some of them require no signature. Ms. Vaught's testimony was credible. Mitchell King, M.D., is a board-certified family practice physician. He is an assistant professor and director of the Department of Family Medicine at Northwestern University Medical School in Chicago. Dr. King was accepted as an expert in the area of CPT coding. Dr. King has published three studies related to CPT coding by family practice physicians. One of the studies demonstrated that 38 percent of family practice physicians delegate all or a portion of CPT coding to a staff member. Another found that physicians selected the wrong code 48 percent of the time. Another found that certified coders disagreed as to the appropriate code 43 percent of the time. Dr. King agreed with Ms. Acevedo to the effect that a family practice physician would have more coding errors because of the broad nature of the services rendered. He believes that the CPT code manual is difficult to use. Dr. King's testimony was accepted as credible.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That a final order be entered which dismisses the allegations of the complaints. DONE AND ENTERED this 11th day of June, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 June, 2002. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Room 3226, Mail Stop 39 Tallahassee, Florida 32308 Gary A. Shipman, Esquire Brian Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner, Beth Mulligan McKnight, was terminated from her position with Respondent as a Call Center telephone operator on or about August 28, 1997, based on her sex, (pregnancy), in violation of Section 760.10(1)(a), Florida Statutes (1997).
Findings Of Fact The Respondent, Sears Termite & Pest Control, is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a Termite Technician. Her duties included servicing existing customers, solicitation of contract renewals, and the sale of contracts to new customers during the relevant period April 1, 1997 through termination on August 28, 1997. Petitioner was earning between $800.00 to $1,300.00 per month, a combination of hourly wages from servicing existing customers and from commissions from her sale of renewals and of new contracts. Each week Respondent paid Petitioner an advance draw of $225.00 and at the end of the month, previously paid draws were deducted from Petitioner's commissions earned during the preceding month. Commissions paid Petitioner were eleven percent on contract renewals and twelve percent on new contract sales. Petitioner worked an average of 30 to 60 hours each week during her employment with Respondent. Ed Blumenthal was Petitioner's immediate supervisor and zone manager. Petitioner was assigned to the Ovedia/Geneva/ Chuluota route for the service of existing customers and for the solicitation of new customers. Though he could assign Petitioner routes within his zone, Blumenthal had no authority to transfer Petitioner from his technician service center to another service center. Ed Blumenthal assigned Petitioner a company vehicle and permitted her to take the vehicle home overnight to provide technicians more route time to service customers and additional time for sales of contracts to new customers. On August 4, 1997, at about 7:30 a.m., Petitioner arrived at the Sears Longwood district office for her daily assignments. Petitioner informed Ed Blumenthal of her recently confirmed pregnancy (about three and one-half months at that time). Petitioner initiated a discussion with Ed Blumenthal regarding her desire to continue working as a technician until the end of August, thereby enabling her to earn additional commissions. Petitioner specifically requested that, if possible, her requested transfer to the call center become effective the first Monday of the following month, September 1, 1997. Ed Blumenthal, without promising specific results, assured Petitioner that he would make some calls and see what he could do with her transfer request. Within the next few hours, Ed Blumenthal called Petitioner into his office and informed her he had a telephone conversation with his manager, Kemp Anderson, regarding her request for transfer to the call center. Ed Blumenthal instructed Petitioner to contact Robert Gleeson, call center director, for further details regarding the requested transfer. Ed Blumenthal, at that time, reassigned Petitioner to a new service-solicitation route. Petitioner worked as a service technician on her newly assigned route until August 19, 1997. On that date, Robert Gleeson, instructed Petitioner to report to the Edgewater Drive corporate office and contact Erskin Nunn, call center manager, for an interview and discussion of her technical and secretarial skills background. During the course of her interview with Erskin Nunn, Petitioner alleged Mr. Nunn said, "A woman in your condition should not be doing that kind of work . . . crawling around attics with guys." Petitioner understood Nunn's comment to have been made in reference to her recently announced pregnancy. Petitioner did not report Erskin Nunn's comment about her pregnancy to Ed Blumenthal, Robert Gleeson, Kemp Anderson or the Human Resource Director at or near the time the statement was made. Though upsetting to her, Petitioner did not consider Nunn's comment to have an impact on her continued employment with Respondent. Erskin Nunn hired Petitioner and informed her that August 20, 1997, training class would be her first work day. Robert Gleeson testified that training class was mandatory for every call center worker. The actual transfer of Petitioner from the service center to the call center was accomplished by verbal communications from Ed Blumenthal to Kempt Anderson to Robert Gleeson to Erskin Nunn. Petitioner made repeated requests to Ed Blumenthal, Erskin Nunn, Robert Gleeson, and Kempt Anderson to start her new assignment on September 1st. The requests were denied. Petitioner's request for a September 1, 1997, starting day for her transfer to the call center was made to Kempt Anderson. During the meeting with Petitioner, Anderson said, "A women in your condition should not be doing this." From August 20 through August 24, there were daily telephone calls between Petitioner and Robert Gleeson. Gleeson inquired if Petitioner was coming to work and Petitioner responded that due to her lack of personal transportation and her requested starting day of September 1st she would not be in to work. By September 24th, Petitioner had not appeared for training as requested, and Robert Gleeson fired Petitioner on September 25, 1997. On November 26, 1997, three months after Petitioner's termination on August 28, 1997, Robert Glesson fired Erskin Nunn. Nunn's termination letter listed the reason for his dismissal as "inappropriate behavior in the workplace." The "inappropriate behavior" was two or more sexual harassment offenses made toward female employees by Erskin Nunn. Petitioner first raised Nunn's sexual harassment conduct during her cross-examination of Robert Gleeson at the final hearing. Robert Gleeson acknowledged that his firing of Nunn was, in fact, because of Nunn's repeated sexual harassment conduct toward female employees at Sears. Respondent's handbook, "Employee Personnel Policies Manual," February 1997, was given to Petitioner at the time of her initial employment. The manual contains the company's blanket reservation of the "right to transfer employees to whatever job or location may be necessary to accomplish the objectives of the company." The actual transfer of Petitioner from the service center to the call center was accomplished by verbal communications from Ed Blumenthal to Kempt Anderson to Robert Gleeson and finally to Erskin Nunn. Robert Gleeson, at all times pertinent hereto, as director of the Customer Service Center (call center) was responsible for the overall operational functions of the call center. Gleeson gave Esrkin Nunn, call center manager, sole authority to hire and to train personnel to work in the call center. Erskin Nunn, at all times pertinent hereto, was Robert Gleeson's assistant. Mr. Nunn reported directly to Robert Gleeson who reported directly to Kemp Anderson. At all times pertinent hereto, Kemp Anderson was District Manager, with duties and responsibilities for an area just north of Vero Beach to Gainesville, consisting of seven or eight zones offices, several hundred trucks and employees and administrative staff. He was responsible for sales and renewals on a monthly basis, employee retention, customer services, and basic operational functions. Mr. Anderson was Ed Bulmenthal and Robert Gleeson's immediate supervisor. As district manager, Kemp Anderson was the first person called by Ed Bulmenthal to convey Petitioner's pregnancy condition and her transfer request. Robert Gleeson, call center manager, reported directly to Kempt Anderson. Accordingly, Kemp Anderson's testimony, that he did not have authority to grant Petitioner's request for transfer, nor could he alter her starting date for training in the call center, nor was he involved in her termination, is suspect.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon her (sex) pregnancy. DONE AND ENTERED this 6th day of June, 2001, in Tallahassee, Leon County Florida. FRED L. BUCKINE 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 6th day of June, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Donald C. Works, III, Esquire Anthony J. Hall, Esquire Jackson, Lewis, Schnitzler & Krupman 390 North Orange Avenue Suite 1285 Orlando, Florida 32801-1641 Beth Mulligan McKnight 3083 Erskine Drive Oviedo, Florida 32765 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether or not Respondent should be disciplined for violations charged under Count I of the Administrative Complaint pursuant to Rule 210- 10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [for intentionally or negligently failing to file a report or record required by state or federal law] and pursuant to Rule 210-10.005(1)(e)1. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, inaccurate recording, falsifying or altering of patient records]; under Count II pursuant to Rule 210- 10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, acts of negligence or gross negligence, either by omission or commission]; and under Count III pursuant to Rule 210- (1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct including, but not limited to, practicing beyond the scope of the licensee's license, educational preparation or nursing experience].
Findings Of Fact At all times material, Respondent was licensed as a registered nurse in the state of Florida, Board of Nursing license number 84080-2. At all times material, Respondent was employed as a registered nurse/nurse supervisor with North Florida Reception Center (NFRC) Hospital, part of the Florida Department of Corrections. On December 13, 1989, Officer Russell Adler was on duty in 05 dormitory. It was called to Officer Adler's attention and he observed that an inmate, Artis Baker, was crawling around on the floor and was having trouble breathing. At approximately 11:29 p.m. Officer Adler turned over custody of inmate Baker to Officer Willie Hogan for escort to the emergency room. Officer Hogan escorted inmate Baker to the emergency room and went elsewhere while inmate Baker was seen by Respondent, who was the nurse on duty. Shortly thereafter, Respondent returned custody of inmate Baker to Officer Hogan. Officer Hogan testified that the Respondent informed him at that time that he, the Respondent, had given Baker a shot "to calm him down to rest." Hogan escorted inmate Baker back to his dormitory. Officer Adler testified that Hogan told him that Respondent had given Baker "some sleeping medication." However, other witnesses testified that when Respondent was questioned by Dr. Richtine and others after Baker was found dead, Respondent denied that he had medicated Baker. In light of the objective evidence of the autopsy, these contrary so-called "admissions" of Respondent are not sufficient for making a finding of fact that Respondent, did, in fact, administer any drug to Baker. See, Finding of Fact 14. Contrary to NFRC policy, neither inmate Baker's visit to the emergency room nor any medication which may have been administered by Respondent was recorded by Respondent in inmate Baker's patient record. Diane Richtine, M.D., was the on-call physician that night. Contrary to NFRC policy and protocol, Respondent never notified Dr. Richtine that there was an inmate who had presented himself to the emergency room for possible treatment. The foregoing NFRC policies requiring notations in the patient's record and the notification by the on-duty nurse to the on-call physician are contained in a written policy and procedure manual, receipt and reading of which Respondent had acknowledged in writing prior to December 13, 1989, but there was no affirmative proof that these policies or the reports/records required by them are "reports or records required by state or federal law." No statute or Florida Administrative Code rule adopting the Department of Corrections NFRC policy manual was introduced by Petitioner or referenced by any witness. Inmate Baker was returned by Officer Willie Hogan to the dormitory at approximately midnight on December 13, 1989. At 5:55 a.m. on December 14, 1989, Officer Larry Feltner was informed by other inmates that inmate Baker was not responding to the wake-up calls. Officer Feltner checked inmate Baker for a pulse, but was unable to locate one and then called the control room to inform its occupants of the incident. Sergeant Allan Ross and Captain J.D. Wainwright responded. They entered the dormitory and checked inmate Baker for a pulse, and finding none, removed Baker from his bunk and attempted to administer cardiopulmonary resuscitation. The Respondent, David Pearl, then entered the dormitory and while Captain Wainwright and Sergeant Ross were present, checked inmate Baker for life signs and found none. Baker's body was thereafter removed from the dormitory and taken to the NFRC morgue. The Respondent failed to notate inmate Baker's death on his patient records. The first notation of death was made by E. Johnson, R.N., at 8:15 a.m. on December 14, 1989. Patricia K. Bassitt, R.N., was accepted as an expert witness on general nursing practices and record keeping. In her expert opinion, Respondent's failures to notate inmate Baker's visit to the emergency room, to notate his administration of medication to inmate Baker (which administration of medication the expert witness erroneously took to be factually established), and to notate Baker's subsequent death constituted inaccurate keeping of patient records; also in her opinion, Respondent's actions constituted negligent actions and actions below minimum standards of acceptable care. Further, Ms. Bassitt opined that Respondent had acted beyond the scope of good nursing practice, had acted contrary to good nursing practice, and that his actions had been "very lacking." Despite an autopsy performed on inmate Baker, it was not possible to determine the cause of his death. Nothing beyond his regular medications for chronic hypertension was found in his system. No toxic substance, legend drug, or drug which would cause him to sleep was found.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a Final Order finding Respondent not guilty of the portion of Count I of the Administrative Complaint brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(f) F.S. [intentionally or negligently failing to file a report or record required by state or federal law], guilty of the portion of Count I brought pursuant to Rule 210-10.005(1)(e)1. F.A.C. and Section 464.018(1)(h) F.S. [for unprofessional conduct, specifically, inaccurate recording of patient records]; guilty of Count II brought pursuant to Rule 210-10.005(1)(e)12. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically acts of simple negligence]; and not guilty of Count III brought pursuant to Rule 210-10.005(1)(e)15. F.A.C. and Section 464.018(1)(h) F.S. [unprofessional conduct, specifically practicing beyond the scope of the licensee's license, educational preparation or nursing experience], reprimanding Respondent for his actions, and placing his license on probation for two years with the special condition that he successfully complete courses in charting/assessment in addition to other normally required continuing education courses, together with a $250 administrative fine. RECOMMENDED this 27th day of February, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4408 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-5 are accepted. 6-7 are covered in FOF 6 and 10 and the conclusions of law. 8-19 are accepted. 20-22 are accepted as modified to accurately reflect the witness' testimony and to the extent they are not accepted, they are rejected as contrary to the credible record evidence. Respondent's PFOF: None submitted. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 David Pearl 1106 1/2 West Princeton Street Orlando, Florida 32804 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
