Findings Of Fact The Petitioner, Sunrise, a Community for the Retarded, Inc. (Sunrise), owns and operates Corry Group Home No. 3 (Corry), a 12-bed group home for the retarded in Miami, Florida. Corry is a licensed developmental residential facility which is certified as a Medicaid provider for Intermediate Care Facility/Mentally Retarded (ICF/MR) services to eligible Medicaid recipients. The Department of Health and Rehabilitative Services (DHRS) administers Florida's Medical Assistance Program Medicaid) which is funded jointly by the federal and state governments. The federal contribution to Medicaid's funding is approximately 56 percent and the state contributes approximately 44 percent. The Medicaid program is subject both to state and federal laws, rules and regulations. DHRS reimburses Sunrise for Medicaid services provided under the Florida Title XIX ICF/MR Reimbursement Plan (the Plan) which operates prospectively. A provider receives a rate for Medicaid reimbursement which is based on historical costs that are inflated forward through the reimbursement period. This differs from retrospective reimbursement which is based on payment for actual expenses. Under the Plan, a target rate is set for new providers just entering the Medicaid program. This target rate uses a beginning cost reporting period as a base, and inflates the target rate forward to establish a limitation on the rate calculated from subsequent cost reporting periods. The target rate is intended to act as a constraint on increases in the provider's costs in future periods. A target rate was established for Corry in 1983. Under the Plan, it is possible for a provider to incur costs greater than the amount of Medicaid reimbursement. The Plan places the burden of operating within the budgetary constraints on the provider. Inefficient management can result in a loss which will not be compensated for by Medicaid. As a licensed and Medicaid-certified facility, Corry is reviewed on an irregular basis by the DHRS Office of Licensure and Certification for compliance with licensure requirements, as well as Medicaid certification requirements. In 1985, the federal Health Care Finance Administration (HCFA) initiated a "look behind" survey to review Corry's compliance with federal rules and regulations. As a result of this survey, HCFA determined that Corry had fire safety deficiencies, and ordered that it be decertified from participation in Medicaid, effective October 15, 1985. The DHRS Office of Licensure and Certification did not agree with the HCFA determination, and informed HCFA that it would not revoke Sunrise's license for the Corry group home. No action was taken by DHRS to revoke the license of the Corry facility as a developmental residential facility, and this license was later renewed without any requirement for reapplication. Because of the HCFA decertification, the DHRS Medicaid Program was required to terminate Medicaid payments to the Corry facility on October 15, 1985. Since the facility was caring for clients of the DHRS Developmental Services Program, DHRS took steps to license Corry as a long-term care facility so that DHRS would have a contract under which it could make payments from the state's general funds. The amount paid to Sunrise under the contract was the same 44 percent share that DHRS would have been reimbursing under Medicaid. Sunrise covered the remaining amount through private donations. During the period of decertification, while Sunrise was challenging the federal government's action, the Corry facility continued to serve clients placed there by the DHRS Developmental Services Program. It was also required to be in compliance with its license as a developmental residential facility. Also in this period of decertification, there was a shift in the client population of Sunrise, with clients functioning at higher levels being moved from Corry to other Sunrise facilities, and clients who functioned at a lower level and who needed more services being moved into the Corry facility. These moves appear to have resulted from a business decision by the Sunrise management, because there was no regulatory requirement that the moves be made. With assistance from DHRS, Sunrise installed a fire sprinkler system in the Corry facility to alleviate the fire safety problems. Also, Sunrise prevailed in its challenge to HCFA's decertification order, and entered into a settlement with HCFA by which the Corry facility would be treated as if it had never been decertified. Corry's recertification was effective as of January 31, 1986. DHRS assisted Sunrise to obtain recertification of the Corry facility under the Medicaid Program. At the request of HCFA, DHRS calculated the Medicaid reimbursement that would have been made to Sunrise if the Corry facility had not been decertified between October 15, 1985, and January 31, 1986. This amount was only an estimate since Sunrise had not been billing Medicaid during the period of decertification. DHRS based its estimate on the Corry facility's Medicaid rate for the decertification period multiplied by the number of Medicaid client days. In making this calculation, DHRS took into account an interim rate increase which had been allowed for the period, based on increased workers compensation benefits. This estimate was transmitted to HCFA which authorized reimbursement. The authorized amount was reduced by the amount of state funds previously paid Sunrise under the long-term care facility contract with DHRS, and Sunrise is currently being reimbursed through the Medicaid Program based upon claims submitted. The estimated amount will be adjusted to reflect the actual amount when all of the claims have been calculated, and HCFA will pay its share of that amount. If the Corry facility had not been retroactively certified during the period of October 15, 1985, through January 31, 1986, these payments could not have been made. When the Corry facility was recertified as a Medicaid provider it retained the same Medicaid provider number that it previously had operated under. Although the Corry facility's provider agreement issued on February 1, 1986, indicated that it was a "new" facility with an "initial" agreement, these terms are standard on forms utilized by DHRS for facilities reentering the program, as well as for new providers. The terminology had no effect on the Medicaid determination of whether or not the Corry facility was a new provider under the Plan. In September of 1986, Sunrise requested a complete interim rate for its Corry facility, based on its contention that Corry was a new provider under the Plan. This would enable the Corry facility to replace its 1983 target rate with a higher 1986 target rate. DHRS rejected this request for three reasons: Corry's license was never revoked. Corry received its state share of Medicaid payments through general revenue during the period of decertification. Corry is being retroactively reimbursed for the federal share of Medicaid payments for the period of decertification. As a part of its claim that the Corry facility should be considered a new provider, Sunrise contends that Corry has no cost history for the period of decertification. However, all of the elements required to compile a cost report during the period of decertification were in existence, and could be provided by Sunrise. During the decertification period, the Corry facility's services to Medicaid recipients produced Medicaid eligible costs. Therefore the Corry facility had a Medicaid cost history for establishing a prospective rate, as contemplated by the Plan. The changes in the patient population at the Corry facility had no effect on whether or not Corry had a Medicaid cost history because such changes can occur in the routine operation of any ICF/MR facility. Corry was not a new provider. DHRS has recognized that Sunrise is eligible for a component interim rate under the Plan (as opposed to a complete interim rate) for the costs of installing the fire sprinkler system to meet federal requirements. Yet this would not provide a new target rate for the Corry facility.
The Issue The issue is whether Respondent is guilty of being unable to practice massage with reasonable skill and safety due to illness, in violation of section 480.046(1)(g), Florida Statutes, or failing to comply with a monitoring or treatment contract or being terminated from a treatment program for impaired practitioners, in violation of section 456.072(1)(hh), Florida Statutes, and, thus, section 480.046(1)(o), Florida Statutes. If either charge is proved, an additional issue is the penalty that should be imposed.
Findings Of Fact By application dated September 23, 2003, Respondent applied for licensure as a massage therapist. The application lists Respondent's address as 2342 Treasure Isle Drive, Palm Beach Gardens. At all material times, this has been Respondent's official address of record with the Board of Massage Therapy, and Respondent's parents have resided at this address. For much of the time since licensure, Respondent has resided at his parents' home. For the time since licensure that Respondent did not reside at this address, his parents timely forwarded to Respondent all licensure-related mail when they received such mail. Respondent's application mentions a mental illness, so the Board of Massage Therapy referred the file to its History Committee. After consideration of the materials in the file, the History Committee referred the file to PRN for an evaluation of Respondent and his fitness to practice. Respondent's psychiatrist, Jorge H. Caycedo, who practices in Miami, sent a letter, dated January 9, 2004, to the Board of Massage Therapy. The letter states that Respondent has been in out-patient therapy with Dr. Caycedo, "on and off," since October 1997. Dr. Caycedo opined that Respondent suffers from "a Bipolar Disorder." At the time of the letter, Respondent was on a combination of medications that he had found "most helpful." The letter concludes: [Respondent] is well aware of the nature of his mental problems and of the consequences of not taking his medications regularly, as prescribed. In my opinion, he is in condition to practice as a massage therapist provided that he follows the treatment recommended to him. On February 17, 2004, Dr. Aldo Morales, a psychiatrist, examined Respondent at the request of PRN. In his letter of the same date, Dr. Morales detailed Respondent's psychiatric history, which includes four hospitalizations for manic and depressive episodes--mostly the latter--and command auditory hallucinations. Dr. Morales noted that Respondent's family history includes a sibling with bipolar disorder and that Respondent's personal history included daily use of marijuana for six years, but his use of marijuana, as well as alcohol, had ended 11 years earlier. Dr. Morales' letter reports that a ten- panel drug screen, which included a test for marijuana, was negative. Dr. Morales found nothing adversely remarkable in the mental status exam and entered, as Axis I diagnostic impressions, "Bipolar Disorder, most recent episode depressed (3 1/2 years ago), with a prior history of psychosis" and "Cannabis dependence, in full sustained remission . . .." Dr. Morales assessed Respondent's global assessment of function as 70. Based on his examination, Dr. Morales concluded: It is my opinion that [Respondent] can practice his profession with reasonable skill and safety as long as he remains under psychiatric supervision, adheres to his medication regimen, and remains clean and sober. On March 13, 2004, PRN entered into an Advocacy Contract with Respondent. Immediately under "Advocacy Contract," at the top of the first page of the contract, is the following: "***Licensure-Long****." In the contract, Respondent agrees to submit to random urine or blood screens; abstain from all but prescribed medications, drugs, alcohol, and other mood-altering substances; obtain quarterly updates for PRN from Dr. Caycedo; attend a weekly PRN-monitored professional support group; and return messages from PRN within 24 hours. Other requirements included notification of PRN anytime that Respondent, a French citizen, left the United States and anytime that he returned to the United States, as well as a visit to Respondent's treating psychiatrist within one week of returning to the United States with a report from the psychiatrist to PRN. At the bottom of the contract, immediately above Respondent's signature, which is dated March 13, 2004, is the statement: [PRN] agrees to assume an advocacy role with Professional Licensing Board . . . for [Respondent] provided the following terms are agreed to and met. The duration of this contract will be licensure-long. . . . At the meeting of the Board of Massage Therapy on April 22, 2004, pursuant to the contract between PRN and Respondent, a PRN representative made a brief presentation highlighting the above-described facts. In this presentation, the PRN representative assured the Board that the monitoring would apply "license long." The Board agreed to issue a suspended license to Respondent, but to stay the suspension as long as Respondent remained compliant with the PRN contract. Immediately after the vote, a Board member addressed Respondent: You understand what we did? You have your license as long as you stay in compliance. There's a suspension on your license but that suspension is stayed[. A]s long as you stay in compliance with that contract[,] you['re] fine. The Board of Massage Therapy then issued an Order Granting Conditional License dated May 20, 2004. The Order states the application is: CONDITIONALLY APPROVED with the following conditions of licensure: [Respondent] shall remain in compliance with any recommended . . . PRN . . . contract. The license shall be issued suspended, with suspension stayed for so long as [Respondent] remains in compliance with the PRN contract. Should [Respondent] fail to maintain compliance with the PRN contract, the stay of suspension shall be lifted until [Respondent] appears before the Board and demonstrates renewed compliance. The conditions are imposed on [Respondent's] violation of section[s] 480.046(1)(g); 456 072(1)(y) Florida Statutes by being unable to practice Massage Therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of materials, or as a result of any mental or physical condition. The Order concludes with a Notice of Right to Hearing that clearly provides Respondent with a chance to contest disputed issues of fact before an Administrative Law Judge or undisputed issues of fact by other means. Respondent did not avail himself of either of these options. The Board of Massage Therapy issued Respondent license number MA 41103. The licenses issued by the Board of Massage Therapy expire on August 31 in odd-numbered years. Using the address noted above, the Board contacted Respondent each time that his license was approaching the end of its term, and Respondent renewed his license by August 31 in 2005, 2007, and 2009. At all times, Respondent's license number remained MA 41103. Following licensure, Dr. Caycedo provided PRN with periodic updates of Respondent's status, although the frequency of these updates was less than quarterly. These letters are dated June 10, 2004; October 8, 2004; February 8, 2005; February 21, 2005; June 1, 2005; December 1, 2005; and February 16, 2006. The February 8 letter reports that Respondent said on this visit that he had been hearing voices, although they had been friendly and not issuing commands, and he had been "more depressed." The other letters reported that Respondent was in good mental condition and stable, although the last letter reports that Respondent had complained of difficulty concentrating and feeling "racy." This letter states that Respondent's next office appointment would be in two months. Respondent testified that he visited Dr. Caycedo and attended group meetings for the first two years after receiving his license. Respondent's main defense is that the condition of suspension attaching to his license expired when the first license term expired because his renewed license was "new" and not conditioned on his ongoing compliance with the PRN contract. However, Respondent did not take advantage of the opportunity to clarify his claimed misunderstanding when he could have done so easily. By letter dated January 23, 2007, Dr. Raymond M. Pomm, then Medical Director of PRN, warned Respondent that PRN was preparing to refer Respondent's case to Petitioner due to Respondent's failure to comply with his contract and gave Respondent until February 1 to contact PRN staff for "direction." If Respondent had truly misunderstood whether the condition had continued to attach to his license, he would have taken this opportunity to resolve the issue. Respondent received the January 23 letter. It was sent to the address listed above, and Respondent's father signed for it on January 25, 2007. Respondent's admission at the hearing that it was "possible" that he received this letter acknowledges the obvious--he received it, and he received it when it was delivered at his parents' home. At the time, Respondent was living at this address. Also, later in 2007, when Respondent's license came up for renewal, the notice went to the same address, and Respondent did what was required to renew his license. Respondent ignored the February 1 deadline. On February 26, 2007, Dr. Pomm wrote Respondent to advise him that PRN had referred his case to Petitioner for noncompliance with his PRN contract. Again, Respondent received the letter, but took no action. On the same date, Dr. Pomm wrote Petitioner and stated that Respondent was not in compliance with his PRN contract, and Dr. Pomm "cannot say that he is safe to practice with reasonable skill and safety " Respondent continued to practice massage therapy in Florida until September 2008. At this time, Respondent returned to Paris, France, where he lived and worked until about December 1, 2010, when he returned to Florida. Respondent testified that he filed the paperwork to renew his license by August 31, 2009, while he was residing in Paris. Although the record omits any copy of this renewal, unlike the 2005 and 2007 renewals, Mr. Anthony Jusevitch testified that the Board renewed Respondent's license on August 31, 2009. Respondent testified that he visited Dr. Caycedo upon Respondent's return to Florida, but the record contains no indication of when or the findings of Dr. Caycedo, except Respondent's two-edged assurance that Dr. Caycedo thought that it was a "miracle" that Respondent was well. At the hearing, Dr. Rivenbark testified on cross that she has no reason today to opine that Respondent could not practice massage therapy with skill and safety, although, on redirect, she clarified her testimony by adding that, based on Respondent's diagnosis, there is "great potential" that he may be unsafe to practice. Dr. Rivenbark's opinion is about the same as Dr. Pomm's opinion--each expert lacks a basis to say that Respondent may practice with reasonable skill and safety. Of course, such evidence is short of establishing that Respondent is unable to practice with reasonable skill and safety. The only evidence to support a present finding to this effect would be an inference from Respondent's initial diagnoses, as well as his auditory hallucinations and recurring depression, although these occurred five years ago. The most current information appears to be Dr. Caycedo's findings upon Respondent's return to Florida a couple of months ago, but, given its hearsay nature, this testimony is not especially reliable, nor is it at all descriptive of what, if anything, Dr. Caycedo meant. The evidence in this record is therefore short of what is necessary to establish that Respondent may not practice with reasonable skill or safety, but this finding in no way implies that the condition originally attached to his license--ongoing compliance with the PRN contract--is no longer necessary.
Recommendation It is RECOMMENDED that the Board of Massage Therapy enter a final order suspending Respondent's license until he achieves compliance with his PRN contract. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 1st day of March, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Fabian Chanoz 2342 Treasure Isle Drive Palm Beach Gardens, Florida 33410 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3256 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue for consideration in this case is whether the Respondent's license as a certified respiratory therapy technician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner was the state agency in Florida responsible for the licensing and regulation of the respiratory therapy profession in this state, and Respondent was licensed as a respiratory therapy technician under license number TT 0004476. On January 17, 1990, the Advisory Council on Respiratory Care of the Board of Medicine entered an Order granting Respondent licensure as a respiratory therapy technician conditioned upon his passage of the licensure examination and, as pertinent here, "contingent upon his entering into and successfully participating in the Physicians Recovery Network (PRN) program." The Order also provided, "Successful participation shall require fulfillment of any requirements set by the PRN program." A copy of this Order was furnished to the Respondent shortly thereafter and he interposed no objection to the terms thereof. Just previous to that Order, Respondent had entered into an Advocacy Contract with the Impaired Practitioner Program of Florida, administered by the PRN, by which he agreed, inter alia, to participate in random urine drug and or blood screen programs through Dr. Krone within twenty-four hours of notification, and to contact the office of the PRN by monthly letter. It must be noted that the requirement to participate in random urine testing was not limited as to the number of tests Respondent would be required to undergo, and it also must be noted that the requirement to contact the PRN by monthly letter did not specify the content of the letter. However, Dr. Goetz, the Director of the program, indicates that in a conversation he had with Respondent at the time the contract was signed, he indicated to Respondent that he should advise the Network he had abstained from drug use during the period and was experiencing no difficulties in his work because of drugs. Respondent claims not to recall such a conversation, but it is found such conversation was likely in light of the purpose of the program. Nonetheless, Respondent did not file the required monthly letters with the Network though there is some evidence he did participate in the random testing required. The file maintained on Respondent by the Network, however, reveals he was somewhat "testy and obnoxious" in his dealing with Network personnel. In that regard, however, Respondent indicates he had what appears to be a personality clash with a Network representative, Mr. Westmoreland, and his attitude toward Network personnel may well be the result of Westmoreland's approach to Respondent. This does not excuse Respondent's use of gutter language and profanity in some of the oral and written communications he had with the Network, but there was, originally, no requirement in the contract for politeness. In September, 1990, when Respondent had not submitted the required written communications, he was contacted and reminded of his obligation. At that time, he gave some vague explanation for not complying, and as a result, the Network, on October 2, 1990, entered into a new contract with Respondent which, back dated to December 1, 1989, the date of the original contract, again included the requirement for random urine testing and monthly letters - identical to the requirements in the original contract. Thereafter, Respondent still failed to file the written communications until, in June, 1991, he sent in a short, caustic letter. Thereafter, in July, August and September, 1991, Respondent filed short one or two sentence letters which merely indicated the note was full compliance with the contract terms. In the letter sent in by Respondent in October, 1991, he added the comment he had never been chemically dependent on any substance. On November 19, 1991, Ms. King, for Dr. Goetz, advised Respondent in writing of his responsibility to enter and successfully participate in the program of the PRN, and that unless he contacted the Network within seven days to present his proposal to cooperate in meeting the terms of the contract, it would be reported to the Respiratory Council that he had not successfully cooperated in their program. The letter does not tell Respondent wherein he has been delinquent, however, and only by implication asserts his lack of successful cooperation. In response to that letter, on December 4, 1991, Respondent wrote a scathing indictment of the tactics employed against him by Network personnel, specifically Mr. Westmore [sic]. After reiterating his contention that he has never taken drugs for any purpose and that his conviction on the possession charge was, at least in part, because of his race, in sometimes gross language he indicated his frustration with the program and his desire to be taken off it if it was the Council's intention to keep him on it for the rest of his life. Upon receipt of that letter, Dr. Goetz, on behalf of the Network, advised the Respiratory Council by letter that the Network had been unable to successfully monitor Respondent in its program, and offered to forward background information to support that conclusion. It would appear that upon the receipt of that information, the Council contacted the Department's legal section and, after a review of the file by that agency, was advised that Respondent had not violated his contract. Therefore, in an effort to salvage the relationship with Respondent, the Network prepared another contract for Respondent which included a reiteration of the requirement for random urinalysis and for the monthly contact, though this time, the contact was to be by telephone to Dr. Goetz only or, in his absence, his designee. This was to obviate the potential of Respondent getting into any dispute with other staff members. In addition, however, a requirement was added that Respondent be courteous and cooperative in all contacts with the PRN staff and representatives. Respondent refused to sign that contract even though it, too, was back dated to December 1, 1989, and his signature would not have added any time to the period of observation. Instead, on August 17, 1992, Respondent wrote to Dr. Goetz, again outlining his position that he was in full compliance with the PRN requirements and complaining of what he saw as the unfairness of the requirements placed upon him. After fully describing what he considered to be the inappropriateness of the requirements, he outlined his position on the various paragraphs of the proposed contract and indicated he would sign it only if he were guaranteed he would get full credit for time already spent in the program, and the total time of enrollment is reduced below five years. Upon receipt of that letter, Dr. Goetz telephonically contacted the Department's legal section and was advised to obtain a psychiatric evaluation of the respondent. Attempts were made to contact Respondent through September, October and November, 1992, both by telephone and by certified letter. Phone messages were not returned and the certified letter was not accepted. In this regard, Respondent claims he did not receive the letter, possibly because of a residential move. However, he did not indicate when this move took place, and as a result, it is impossible to determine if that is the reason for the nondelivery of the letter or if Respondent merely refused to accept it. Thereafter, in December, 1992, a letter was sent to the Department's legal staff by the Network, forwarding a copy of the latest contract and Respondent's response thereto. In the following February, the Department counsel was advised by Network that it was unable to establish cooperative monitoring of the Respondent and that Respondent was in violation of paragraphs 1 and 4 of the contract, relating to random urinalysis and monthly communication. It would appear that Respondent neither submitted to urinalysis nor had any monthly contact with the Network subsequent to his letter to Dr. Goetz in August, 1992. Respondent admits it is not in his best interests not to comply with the terms of the contracts he executed with the Network, and he would like to comply with as little friction as possible. However, he claims, shortly after the execution of the original contract, he received a call from Mr. Westmoreland indicating he was not complying. When he asked for an explanation, he was brusquely told, "read the contract", without further explanation. It was only when he spoke with another Network representative, Ms. Crummy, that he was told wherein he was delinquent. At that time, he also got the second contract. Notwithstanding Dr. Goetz had discussed the terms of the contract with Respondent at or shortly after the signing, Respondent contends he was not aware of the requirements for monthly letters, claiming he believed he had only to submit to the random urinalysis. In light of the Respondent's educational level, and the extreme simplicity of the contract language, it is impossible to accept that Respondent didn't know what was expected of him, and it is so found. Respondent has always contended he was not a drug user and denied he had any dependency on drugs. Therefore, he claims, he did not see any reason to send in a monthly letter nor did he know what the letter should include. For that reason, he asserts, he merely used the short form letter utilized in the early responses. When he was advised that was not sufficient, he wrote a longer letter which said much the same. He claims not to know what more he could have said. Respondent relates an ongoing disagreement with Mr. Westmoreland, and was, because thereof, transferred to the monitoring of Mr. Fontaine. In November, 1991, he was called for a urinalysis but had no money to pay for it. In light of the fact that Dr. Krone, the physician performing the urinalysis, reportedly had changed his procedure to require cash in advance, Respondent indicated he would take the test when he got paid later in the month. Mr. Fontaine agreed to this, but shortly thereafter, Mr. Westmoreland called Respondent and directed that he take the test. According to Respondent, Westmoreland said he didn't care where Respondent got the money to do so. Though the discussion between the two men became heated, the test was done. In December, 1991, Respondent received the letter stating he was no longer enrolled under the supervision of the PRN and was being reported for noncompliance. He claims that when he called the Network about this, they would not discuss it with him, merely stating he was out. When the Department started its investigation, Respondent spoke with the investigator, Mr. Hannah, and requested he be informed of what was determined. He claims he never received any notice from either the Department or PRN. He subsequently found out it had been determined he had done nothing wrong, but the Network sent him a new contract anyway. This last contract included the requirement for courtesy. Because Respondent felt he had done nothing wrong, he refused to sign it and wrote the letter setting out what he would agree to do and what he would not agree to. He has not received any response to that letter and as far as he is concerned, is still waiting. He believes he has been cancelled from the program, and without the new contract, he is not a part of the Network and has no requirement to cooperate in a program in which he is no longer enrolled. Respondent claims he does not refuse to cooperate but wants a contract which incorporates his terms as he outlined them in his August, 1992 letter to Dr. Goetz. In addition, since he feels he did nothing wrong, he wants an apology from someone. He asserts he has complied with the terms of the Board's Order in that he passed the test and has successfully cooperated with and complied with the requirements of the network as he understood them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that The Board of Medicine enter a Final Order in this case finding that Respondent, Leonard T. Campbell, violated the provision of Section 468.365.(1)(i), Florida Statutes, by failing to successfully participate in the PRN program mandated by the Board's Order of January 23, 1990, imposing a reprimand, and revoking his certification as a respiratory therapist technician, such revocation being suspended for two years conditioned upon his execution of an advocacy contract with the PRN, successful compliance with the terms and conditions of that contract, and such other conditions as the Board deems appropriate to the circumstances. RECOMMENDED this 11th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of May, 1994. COPIES FURNISHED: Alex D. Barker, Esquire Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211-7466 Leonard Campbell, R.T.T. 8215 North 9th Street Tampa, Florida 33604 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Douglas Lyday, D.V.M., committed the violation alleged in an Administrative Complaint, DPBR Case Number 2008-055022, issued by Petitioner Department of Business and Professional Regulation, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to Chapters 455 and 474, Florida Statutes. At the times material to this proceeding, Douglas S. Lyday, is and was a licensed Florida veterinarian, having been issued license number VM 6396. At the times material to this proceeding, Dr. Lyday’s address of record has been 964 Southwest 12th Street, Boca Raton, Florida 33486. Dr. Lyday’s Treatment Through the Professionals Resource Network. In July of 2006, a Dual Diagnosis Advocacy Contract (hereinafter referred to as the “July 2006 PRN Contract”), was entered into between Dr. Lyday and the Professionals Resource Network (hereinafter referred to as the “PRN”), whereby Dr. Lyday agreed to, among other things, undergo treatment for alcohol dependency and psychiatric issues. Consistent with the July 2006 PRN Contract, Dr. Lyday received in-patient treatment until July 26, 2006, when he was scheduled to begin out-patient treatment. On October 30, 2006, due to a failed urinalysis test, rather than entering out-patient treatment, the July 2006 PRN Contract was voided. On March 15, 2007, a second contract, titled a Dual Diagnosis Monitoring Contract, was entered into between Dr. Lyday and the PRN (hereinafter referred to as the “March 2007 PRN Contract”). Inconsistent with the terms of the March 2007 PRN Contract, Dr. Lyday failed a second urinalysis test on or about June 10, 2008. He failed additional tests in June and July 2008, and failed to report to PRN by telephone on a number of occasions. In August 2008 Dr. Lyday again entered inpatient treatment and, as a consequence, the March 2007 PRN Contract was voided. Subsequently, the PRN was informed that Dr. Lyday was no longer in in-patient treatment. The PRN therefore sent a letter by certified mail to Dr. Lyday’s address of record in August 2008. That letter requested that Dr. Lyday contact PRN in order to undergo an evaluation, followed by a third PRN contract. The letter also indicated that, if Dr. Lyday failed to comply, the matter would be referred to the Department. Dr. Lyday never received the August 2008 letter, despite the fact that it had been sent to his address of record. Having failed to contact the PRN as directed, the matter was referred to the Department. On February 3, 2009, the instant action was instituted. Ultimate Findings. The PRN and the Department have concluded that Dr. Lyday is “unable to practice veterinary medicine with reasonable skill or safety to patients by reasons of” “his alcohol dependency issues and his failure to comply with the terms of the treatment program offered by the Professionals Resource Network.” In support of the Department’s position, the following testimony, which is the only non-hearsay evidence in support of the Department’s position, was offered by Debra Troupe, Dr. Lyday’s PRN case manager: Q. Do you believe the respondent is fit to practice veterinary medicine with reasonable skill and safety at this point in time? A. The last contact PRN had with him, we did not believe he was able to practice [with] reasonable skill and safety. Now, we have had no contact with Dr. Lyday since mid-September 2008. In September, we asked the Department to do an emergency suspension. Lines 18-25, page 29, Transcript. Based upon Ms. Troupe’s credible testimony, the Department has proved that Dr. Lyday, as of September 2008, was unable to practice veterinary medicine with reasonable skill or safety to patients by reason of his alcohol dependency issues. The Department did not prove, however, whether Dr. Lyday continues as of the date of this de novo proceeding to be unable to practice veterinary medicine due to alcohol dependency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order dismissing the Administrative Complaint issued against Douglas Lyday, D.V.M. DONE AND ENTERED this 11th day of February, 2010, 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 11th day of February, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Douglas S. Lyday, D.V.M. 964 Southwest 12th Street Boca Raton, Florida 33486 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
