Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this -0*aay of Deeenter 2011, in Tallahassee, Leon County, Florida. £ Elvabeth Dudek, i fo Agency for Health Care Administration s wy i Som a 4 ' fpheameay oy U re Fa ww Agency for Health Care Administration vs. Infinite Personal Possibilities, Inc. Final Order (C.1. #10-9594-000) Page 1 of 3 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Gary Clarke, Esquire STERNSTEIN, RAINER & CLARKE, P.A. 411 East College Avenue Tallahassee, Florida 32301 (Via Facsimile and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Persons with Disabilities 4030 Esplanade, Suite 380 Tallahassee, Florida 32399-0950 (Via Email Only) Agency for Health Care Administration vs. Infinite Personal Possibilities, Inc. Final Order (C.1. #10-9594-000) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on _ ZL this the f—aay of beer 2014. Richard Shoop, Esquireé<_) Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Agency for Health Care Administration vs. Infinite Personal Possibitities, inc. Final Order (C.1. #10-9594-000) Page 3 of 3
The Issue The issue was whether Dr. Camejo should be disciplined for violation of Section 458.331(1), Florida Statutes, by aiding an unlicensed person to practice medicine, and by delegating professional responsibilities to a person Dr. Camejo knew was not qualified by training, experience or licensure to perform.
Findings Of Fact Dr. Camejo is licensed as a physician holding license ME0036005. In 1985 Dr. Camejo practiced medicine at the Seaport Medical Center at 218 Northeast 5th Street, Miami, Florida. The center was operated by a corporation, Seaport Medical Center, Inc. Dr. Camejo and Francisco Orlando Vega were equal shareholders in the corporation. Dr. Camejo sold the Seaport Medical Center. He then worked part time at the Land and Sea Medical Center, Inc. at 1199 West Flagler Street, Miami, Florida. Land and Sea Medical Center was also a corporation. Dr. Camejo had no equity in the Land and Sea Medical Center, Inc. It was owned by Francisco Orlando Vega and Margarita Sarria. Vega acted as administrator of the clinic, and handled paperwork for reimbursement from Medicare, Medicaid and insurers. Francisco O. Vega is not licensed to practice medicine in the State of Florida. He received a doctoral degree in Biological Sciences from Central University of Las Villas, Cuba in 1964. This degree is not, however, the equivalent of a doctoral degree in the American university system. His Cuban degree would qualify him to be addressed with the honorific Doctor in Latin culture. Based upon his background, Mr. Vega obtained a license in Florida as a laboratory technician which qualifies him to work in a laboratory and to draw blood for testing. Vega never attended or graduated from any medical school and does not hold a degree as a doctor of medicine. The Department introduced a plethora of evidence that Vega has held himself out, in various circumstances, as a medical doctor. For example, Vega was listed in the white pages of the telephone directory as Francisco O. Vega, M.D. Vega's application for a mortgage loan had attached to it tax returns for 1981 and 1982 in which he listed his occupation as medical doctor. Vega applied to take the examination given by the Educational Commission for Foreign Medical Graduates as Dr. Francisco Orlando Vega Cintra in 1983. In 1985 or 1986 Vega applied for licensure as a medical doctor and represented that he had an M.D. degree. Vega's credit cards and motor vehicle registration listed him as an M.D. Although Vega has, at times in the past, used Camejo's address as his mailing address, it has not been shown that Camejo knew that Vega was misrepresenting himself as an M.D. In investigating a complaint about Vega pretending to be a medical doctor, an investigator for the Department of Professional Regulation, Carlos Ramirez, went to the address listed for Francisco O. Vega, M.D., in the phone book. This was the Seaport Medical Center. When Ramirez went there, the building had been vandalized. It was not then being operated as a clinic. Ramirez then went to the Land and Sea Medical Center on June 17, 1985. While there at about 11:00 a.m., three individuals who appeared to be Haitian entered the office and remained inside for about 15 to 20 minutes. At about noon, Ramirez found Vega there alone. Ramirez asked for Dr. Camejo and was told that Camejo was not there but that Vega was a doctor. Vega asked if he could help Ramirez. Ramirez said that he was interested in either buying or leasing the vacant (vandalized) offices of the Seaport Medical Center. Vega said the location was vacant but "they" did not own that building; it was owned by the bank which was turning the area into a parking lot because an elevated public transportation system had been built over the property. While with Vega on that occasion, Ramirez did not attempt to have Vega practice medicine because of the lack of any police backup. After leaving the Land and Sea Medical Center, Ramirez contacted officers at the Dade County State Attorney's Office to assist in the investigation. That office agreed to place a body transmitter on Ramirez to monitor a visit to the Land and Sea Medical Center and to provide backup. Ramirez also conducted surveillance on the Land and Sea Medical Center to determine its hours of operation and found that it appeared to open at about 11:00 a.m. Dr. Camejo only entered the clinic once during the six or seven times that Ramirez watched it for brief periods. On September 23, 1985, Ramirez saw Dr. Camejo enter the clinic. Vega then came in and thereafter Dr. Camejo left. At that time Ramirez sought the assistance of the State Attorney's Office. A body transmitter was placed on Ramirez and officers accompanied him to the Land and Sea Medical Center, Inc. Ramirez first went to a waiting area and spoke to a woman who was functioning as a receptionist, Maria Vargas. Vargas was also a patient of Dr. Camejo who occasionally worked at the center cleaning because she was unable to pay for medical services. Ramirez asked to see "the doctor." He was then invited into offices off a central hallway in the interior of the building and was met in the examining room by Vega. Ramirez told Vega that he had a sore throat and a cough and had been taking Vicks 44 and Nyquil. Vega asked Ramirez where the pain was in his throat, when it had begun and whether Ramirez had lost weight. When asked if he was a doctor, Vega gave the oblique but misleading reply, "Well, I am one of them." After listening to the tape of the meeting in the Land and Sea Medical Center between Vega and Investigator Ramirez, it is difficult to believe that Ramirez thought Vega gave him a genuine medical evaluation due to the hyperbole in Vega's comments, such as that Ramirez' throat looked "really bad" and suggesting that Ramirez had AIDS and joking about it with Vargas. While Ramirez was in the room, Vega drew an injection of Penicillin with Procaine and asked if Raminez was allergic to Penicillin. At that point, based on a code that had been worked out with the State Attorney's Office, the agents for the State's attorney entered and arrested Vega for practicing medicine without a license. Vega had actually been drawing the Penicillin on Dr. Camejo's order for Vargas. Camejo was to administer the injection when he returned to the clinic. While Vega was being arrested, a lady entered the clinic with two children and asked for Dr. Vega. The "receptionist" Vargas motioned to then to be silent and pointed to Investigator Ramirez. The lady then said that she had really come to see Dr. Camejo and left. One of the children with the lady said the person who was treating "them" was "Dr. Vega." After Vega was taken from the Land and Sea Medical Center, Maria Vargas provided from the Center's records documents which appeared to be records of Francisco Orlando Vega Cintra from the Autonomous University of Santo Domingo. Vega asked Vargas to contact Dr. Camejo about the arrest. While Ramirez was at the Land and Sea Medical Center, Inc., Dr. Camejo was not there. As Vega requested, Ms. Vargas did contact Dr. Camejo's answering service to tell him that Vega had been arrested. Vega ultimately pled nolo contendere to charges of practicing medicine without a license. Financial records of the Seaport Medical Center (the facility in which Camejo and Vega had joint interests) showed checks drawn on its account were signed by Jose Pio Camejo, M.D. and by Vega as "Dr. Francisco O. Vega." While there is convincing evidence that Francisco Vega is a person who wishes to impress mortgage bankers and perhaps waiters to whom he gives credit cards with the pretense of being a medical doctor, there is no direct evidence that Dr. Camejo knew about Vega's misrepresentations. More importantly, the general evidence of misrepresentations presented was from contexts in which misrepresentations were irrelevant, for they did not involve the practice of medicine. Vega's actions with Ramirez occurred because Vega recognized him from the prior meeting when Ramirez had asked about renting the Seaport Medical Center property, hence the exaggerated reaction to Ramirez' nonexistent medical symptoms and the bogus AIDS diagnosis, accompanied by Vega's joking with the receptionist about it in the presence of Ramirez. Inspector Ramirez should have known, by that point, that Vega had turned the tables on him because Vega knew that Ramirez was snooping around for some reason, not looking for medical assistance. The joke was ultimately on Vega who has been prosecuted for his actions, but this in no way implicates Dr. Camejo. The record does not establish, at the level of clear and convincing evidence, that Dr. Camejo knew about the unauthorized practice of medicine by Francisco Vega.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint against Dr. Jose Pio Camejo be DISMISSED. DONE AND ORDERED this 16th day of April, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative bearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0845 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 1. Generally adopted in Finding of Fact 2. There is no proof that Dr. Camejo purchased, or ever had any ownership, in the Land and Sea Medical Center, Inc. Covered in Findings of Fact 3 and 4. Covered in Finding of Fact 4. Covered in Finding of Fact 5. Covered in Finding of Fact 6. Covered in Findings of Fact 6 and 7. To the extent necessary, covered in Finding of Fact 6. Some of the proposed facts are rejected as cumulative to the finding that the building had been vandalized. Generally rejected as unnecessary. Covered in Finding of Fact 7. Covered in Finding of Fact 7. Covered in Finding of Fact 8. To the extent necessary, covered in Finding of Fact 9. To the extent necessary, covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Finding of Fact 11. To the extent necessary, covered in Finding of Fact 11. To the extent necessary, covered in Finding of Fact 12. To the extent necessary, covered in Finding of Fact 12. Covered in Finding of Fact 13. Covered in Finding of Fact 13. Covered in Finding of Fact 14. To the extent necessary, covered in Finding of Fact 14. To the extent necessary, covered in Finding of Fact 14. Rejected as cumulative to the findings made in Finding of Fact 5. Covered in Finding of Fact 15. Covered in Finding of Fact 15. Covered in Findings of Fact 15 and 16. Rejected for the reasons stated in Finding of Fact 19. Covered in Finding of Fact 16. Covered in Finding of Fact 17. 33(a). Rejected as conclusions, not findings of fact. 33(b). Rejected for the reasons stated in the Conclusions of Law. 33(c). Rejected because this is not an action for perjury against Dr. Camejo and is therefore irrelevant. Rulings on Proposed Findings of Fact Submitted by Respondent Sentence 1 covered in Finding of Fact 1. The remainder rejected as irrelevant. Rejected as a repetition of the pleadings, not a finding of fact. Sentences 1 and 2 covered in Findings of Fact 6 and 8. The remainder covered in Findings of Fact 11-15. Sentence 1 covered in Finding of Fact 2. Sentence 2 covered in Finding of Fact 2. Sentence 3 rejected as unnecessary. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Manuel Gonzalez, Jr., Esquire Ocean Bank Building, Suite 604 780 Northwest 42 Avenue Miami, Florida 33126 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Department of Health, Board of Pharmacy, pursuant to Chapter 465.004, Florida Statutes, has authority to adopt rules pursuant to Sections 120.536(1) and 120.54, Florida Statutes, and to implement the provisions of Chapter 465, Florida Statutes, conferring duties upon the Board. At all times material hereto, Albert F. Williams was the holder of pharmacist license No. 0008425 issued by the State of Florida, Board of Pharmacy, and was also licensed as a consulting pharmacist.1 At all times material hereto, Stich Pharmacy, d/b/a Skycrest Pharmacy (Skycrest) was the holder of Pharmacy license No. 0012143, issued in 1950 by the State of Florida, Board of Pharmacy, for operation of a community pharmacy.2 By reference, the six statements of facts above listed in the preliminary statement and stipulated to by the Petitioner and Respondent are incorporated herein. At all times material hereto, Albert F. Williams was the sole owner of Skycrest Pharmacy and was employed by Skycrest as its prescription department manager. As pharmacy manager, Albert Williams knew from previous experience that he was the person responsible for compliance by all Skycrest employees, including pharmacist, trainees, pharmacist-technicians, and delivery person, with Florida Statutes, administrative rules, and federal regulations governing pharmacy and pharmaceuticals in the operation of a community pharmacy business servicing both institutional and public clients, to include, but not limited to, maintaining all drug records and providing for the security of the prescription department. At all times material hereto, Skycrest, a community pharmacy, filled and refilled prescriptions received from nursing homes, refilled prescriptions received from Assisted Living Facilities (hereinafter ALFs) and refilled prescriptions received from the general public as walk-in clients. At all times material hereto, Skycrest accepted the return of previously dispensed pharmaceuticals contained in vials and contained in cassettes, from numerous nursing homes, from numerous ALFs, and from persons who represented themselves to Skycrest employees as "family" or "caretakers" of persons residing in various nursing homes or residing in various ALFs. At all times material hereto, Skycrest took back cassettes containing previously dispensed inpatient medications. Skycrest redispensed medications and returned both previously dispensed medications and redispensed medications in cassettes to residents in nursing homes and ALFs. The prescription labels on the bottom of incoming cassettes were not changed to reflect redispensing of additional medications prior to those cassettes being redelivered to the respective nursing homes and ALFs. At all times material hereto, Skycrest employed a driver, who every seventh or eighth day, picked up Opus system3 cassettes from various nursing homes and ALFs. These cassettes were returned to Skycrest, whereupon empty and partially used unit dose compartments would be refilled with redispensed medications. Redispensed and unused previously dispensed medications were then returned to the respective nursing homes and ALFs in the refilled and redispensed Opus system cassettes. At all times, material hereto, Albert Williams, admittedly directed the business of the Skycrest pharmacy department to accept "returned previously dispensed mediations, not given to patients nor paid for by the nursing homes or ALFs, because such medications are owned by Skycrest; that additional redispensed medications were also owned by Skycrest until nursing homes and ALFs made monthly payment for the medications given to their patients, and that all payments to Skycrest from various nursing homes and ALFs were to be computed from and based upon the Medical Administration Records4 (herein after MAR) maintained by Skycrest and maintained at each nursing home and each ALF serviced by Skycrest." At all times material hereto, Skycrest received and accepted controlled substance medications in vials brought in by "caretakers" and/or "family" members of residents living in nursing homes and ALFs; took controlled substance medications from returned vials, added controlled substance medication to the returned controlled substance medication taken from the vials and thereafter redispensed controlled substance medication in the Opus system cassettes to licensed nursing homes and licensed ALFs. Mr. Alfred Williams, as pharmacy manager of Skycrest, operated the pharmacy on his belief that the law provided that Skycrest could take back medications, and those medications previously dispensed but not ingested could be redispensed. Mr. Williams acted on his belief that the law was written because many pharmacies were taking back previously dispensed medications and redispensing, and that the law was aimed to help reduce the burden of expense on patients' families. Mr. Williamss admitted that he does not know whether or not the law upon which he operated Skycrest and relied upon applied to institutional pharmacies only and not to community pharmacies servicing ALFs and nursing homes. Petitioner does not contest the fact that the Board of Pharmacy has approved the Opus cassette system as an acceptable closed unit dose system when employed in accordance with applicable rules. The expiration dates for medications found in Skycrest pharmacy are written on the containers in which the pharmacy received the medication from a pharmaceutical wholesaler. At all times material hereto, Skycrest would accept vials of outdated, returned controlled medication and would keep those vials for an undetermined length of time in a box for disposal; or should a customer or caretaker come back and ask for his/her vials, they were returned to those customers. Mr. Alfred Williams did not keep a separate record of the date each vial was returned to the pharmacy; to ascertain a return date Mr. Williams would refer to Skycrest's copy of the MARs. At all times material hereto, Mr. Alfred Williams knew that when dispensing controlled substance medications, the dispensing pharmacist must instruct the recipient of the controlled substance that if it is not used by the patient, that it has to be destroyed at that location. The returned vials of dated controlled medication would be kept by Skycrest for a year after return for either use by the customer or ultimate disposal by Skycrest. Mr. Alfred William admitted that the destruction of controlled substance medications at the patient's location did not occur in the Opus unit dose system which he, as manager of Skycrest pharmacy department, instituted and continued in the exchange every seven days, resulting in returned controlled substance medication ending up in possession of Skycrest pharmacy department after having been redispensed. Mr. Williams' response to allegation (b) of the complaint, was that his pharmacy, following the accepted standard of practice in the pharmacy profession, when confronted with prescriptions without dates, would call the prescribing physician's office to confirm missing dates (and other needed information, if any) and the information provided was entered into Skycrest's computer system. With "missing date" information from the face of the prescription, but contained in Skycrest's computer system, compliance with the purpose and intent of the rule is accomplished. On or about March 31, 1998, agency employees, William Herbert, investigator; Wayne Rowe, investigator trainee; and Dennis Force, photographer, conducted an unannounced inspection of Skycrest pharmacy. During the investigation, the investigators made observations of vials containing legend medications and controlled substance medications on active dispensing shelves. Petitioner's Exhibit No. 4 contains the name of the medication, prescription number and dispensed date of cassettes with Skycrest pharmacy labels; medication in vials from various Walgreen pharmacies, medication in cassettes with labels from other than Skycrest pharmacy, and unit dose pre- packaged medications from various pharmacies. Exhibit No. 5 is comprised of photos of cassettes containing medications assigned to various ALFs with each ALF's name taped on the bottom of each active shelf. Exhibit No. 6 is comprised of two original prescriptions and one prescription from Dental Emergency Room, PA,. Based on experience as an agency field investigator, William Herbert professed familiarity with pharmacy licensing requirements and with Chapters 499 and Chapter 893, Florida Statutes, regarding controlled substance and adulterated pharmaceuticals and medicines. His uncontroverted testimony was that only three ALFs in Pasco, Pinellas, and Hernando counties are licensed to have on-site pharmacies and a consulting pharmacist, which permits resident patients of those facilities to return scheduled medications back to the dispensing on-site pharmacy for redispensing.5 Skycrest, a community licensed pharmacy, is limited in its business to dispensing medications to patients on a carry- out basis and can dispense to patients who are housed in short- term or long-term facilities only when each prescription is patient specific. The ALFs and nursing homes, which were serviced by Skycrest via redispensing medication through the Opus unit dose closed system did not have a class I nor II institutional pharmacy license. Accordingly, neither resident patients of those not-licensed-institutions nor the institutions themselves were authorized by statute to return unused medications to non- resident pharmacies, including Skycrest, for redispensing. Notwithstanding the classification of licensure held, institutional class I or class II, neither the nursing homes nor the ALFs are permitted to return controlled substance medication to a dispensing pharmacy for destruction under existing US Drug Enforcement Agency (DEA) rules. Mr. Williams testified that the DEA 222 form is in triplicate. He explained that the one copy taken from his pharmacy by the investigator was incomplete because the controlled substance ordered from the pharmaceutical distributor (one copy sent with order) had not been either shipped by the distributor and/or received by Skycrest at that time. The testimony was that when controlled substances are ordered from distributors one copy of the DEA 222 accompanies that order. Second, when controlled substances are received from distributors, the recipient pharmacy completes the remaining two copies by inserting the date shipment received, source, kind, and quality of materials received. One completed copy of the DEA 222 form is returned to the distributor, and one completed copy is attached to the order and retained by the pharmacy as required by the rule. No evidence was introduced by Petitioner to contradict or challenge Mr. Williams' testimony regarding this system of dating DEA 222 form. Skycrest accepted returned vials containing controlled substance medications and cassettes containing controlled substance and legend medications from non-institutional licensed ALFs and non-institutional licensed nursing homes neither of which had an on-site pharmacy or employed a licensed consulting pharmacist manager.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Pharmacy, enter a final order of dismissal with prejudice the complaint herein filed against Mr. Albert F. Williams, Registered Pharmacist. It is further recommended that the Board of Pharmacy, order Mr. Albert F. Williams to forthwith surrender Pharmacy license no. 0012143 issued to Stich Enterprises, Inc., d/b/a Skycrest Pharmacy as stipulated by the parties. DONE AND ENTERED this 9th day of January, 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 9th day of January, 2001.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the GE. day of ach , 2015, in Tallahassee, Florida. Led ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration Final Order Engagement Nos. NH11-039L - NH11-044L Page 3 of 5 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Andy Page 2501 Blue Ridge Road, Suite 500 Raleigh, North Carolina 27607 (Via U.S. Mail) Bureau of Health Quality Assurance Agency for Health Care Administration (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration (Interoffice Mail) Kristin Bigham Assistant Attorney General Office of the Attorney General (Via Interoffice Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order Engagement Nos. NH11-039L - NH11-044L Page 4 of 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to orl the above named addressees by U.S. Mail on this the Fin of VA YA re £ , 2015. Richard J. Shoop, Esquire” Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Final Order Engagement Nos. NH11-039L - NH11-044L Page 5 of 5
Conclusions THE PARTIES resolved all disputed issues after the Agency reviewed additional materials and rescinded the sanction of the Medicaid Provider number. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this theS 25 day of Wax , 2013, in Tallahassee, Florida. ill L ry ABETH DUDEK, 4ECREJARY Agency for Health Care Administration 1 Filed May 8, 2013 11:23 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Andrew Sheeran, Esquire Agency for Health Care Administration (Interoffice Mail) Janet P. Lucente, Esquire Emerald Park Office Center 2699 Stirling Road, Suite B-200 Fort Lauderdale, Florida 33312 (U.S. Mail) Cathy M. Sellers Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Ken Yon, Acting Chief, Medicaid Program Integrity Shawn McCauley, Administrator, Contract Management Finance and Accounting HQA Department of Health (Individual) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the an of Lt , 2013. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue At issue is whether Petitioners, Albert F. Williams and Stitch Enterprises, d/b/a Skycrest Pharmacy, are entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," and if so, what amount would be reasonable.
Findings Of Fact Respondent is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.43, Florida Statutes, Chapter 456 (formerly 455), Florida Statutes, and Chapter 465, Florida Statutes. Prior to July 1, 2002, the Department of Health, pursuant to the authority of Section 20.43, Florida Statutes, contracted with the Agency for Health Care Administration (hereinafter "AHCA") to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards, as appropriate. Petitioner, Albert F. Williams (hereinafter "Williams"), is, and has been at all times material hereto, a licensed pharmacist in the State of Florida, having been issued license number PS 0008425. Petitioner, Stitch Enterprises, d/b/a Skycrest Pharmacy (hereinafter "Skycrest"), is, and has been at all times material hereto, a licensed pharmacy in the State of Florida, having been issued license number PH 0012143. Before the initial final hearing, Skycrest was administratively dissolved by the Florida Secretary of State. On March 31, 1998, Respondent received a complaint from AHCA investigator William H. Herbert, Investigation Specialist II (hereinafter "Herbert"), alleging that a March 26, 1998, pharmacy inspection of Skycrest by Herbert, revealed that Williams and Skycrest were in violation of multiple pharmacy regulations. Pursuant to Subsection 455.621(1), Florida Statutes, Respondent conducted an investigation into the alleged conduct of Williams and Skycrest. On April 10, 1998, as a part of the investigation, Herbert notified Williams and Skycrest of the investigation. Herbert's letters, written on AHCA letterhead, one addressed to Williams and the other letter addressed to Skycrest in care of Williams, invited Williams and Skycrest to submit separate written responses to the pending investigations. On May 8, 1998, Williams and Skycrest both filed three- page responses to the pending investigations with AHCA. Both responses were written and signed by B. Edwin Johnson, Esquire (hereinafter "Johnson"), the attorney for both Williams and Skycrest. During the investigations, Herbert took pictures of various medications that were misbranded or repackaged and took possession of various medications indicated on the survey forms that were completed and filed. During the investigations, Herbert spoke at length with Johnson regarding the violations that were discovered at the time of the inspection of Skycrest. On July 31, 1998, Respondent's investigations of Williams and Skycrest were completed. The completed investigative reports regarding Williams and Skycrest were forwarded to Respondent's legal department and received on August 3, 1998. The AHCA attorney, after reviewing Herbert's entire investigative reports and files, drafted two proposed administrative complaints and made recommendations to the Probable Cause Panel for their consideration. Copies of the entire investigative file, including the proposed administrative complaints, were made available for each member of the Probable Cause Panel. Respondent called John Taylor, R.Ph., as an expert in pharmacy law, and he testified that based on the information available to the Probable Cause Panel, there was sufficient evidence to establish that Williams and Skycrest had both violated the provisions cited in the Administrative Complaints filed by Respondent. Mr. Taylor's testimony was uncontested by Williams. On April 15, 1999, Respondent presented the investigative reports and files to the Probable Cause Panel and recommended that probable cause existed that Williams and Skycrest violated multiple provisions of Chapter 465, Florida Statutes (the Pharmacy Act). On April 15, 1999, after review of the entire investigative files, discussions with staff counsel and discussions with the Department of Health's expert in pharmacy law, amendments to the proposed administrative complaints were suggested by the Probable Cause Panel, and they subsequently found probable cause that: Williams had violated Section 465.016(1)(e), Florida Statutes, by violating 465.018, Florida Statutes, by violating Section 499.005(1), Florida Statutes, by repackaging, holding or offering for sale any drug, device or cosmetic that is adulterated or misbranded or has otherwise been rendered unfit for human or animal use. and Skycrest had violated Section 465.023(1)(c), Florida Statutes, by violating Section 499.005(1)(c), Florida Statutes, by repackaging, holding or offering for sale any drug, device or cosmetic that is adulterated or misbranded or has otherwise been rendered unfit for human or animal use. The Probable Cause Panel directed the Agency to file an Administrative Complaint against Williams and file an Administrative Complaint against Skycrest. The findings of the Probable Cause Panel were confirmed in writing by the chairperson of the Probable Cause Panel. On June 23, 1999, pursuant to the Probable Cause Panel's findings of probable cause, Administrative Complaints (DOAH Case Nos. 00-0220 and 00-0315) were filed against Williams and Skycrest. Both Williams and Skycrest requested formal hearings before the Division of Administrative Hearings. On November 17, 2000, a formal hearing on DOAH Case Nos. 02-0220 and 02-0315 was held in Clearwater, Florida, before the undersigned. At the November 17, 2000, final hearing, Skycrest stipulated it would, within 30 days, voluntarily relinquish and surrender its license. Respondent accepted Skycrest's stipulation and in return agreed to not prosecute charges against Skycrest, but to prosecute charges only against Williams. The undersigned accepted the stipulation of the parties, and the parties are bound thereby in the case at bar. Skycrest, by virtue of this stipulation and Respondent's subsequent dismissal of the Administrative Complaint against Skycrest, was not a prevailing small business party as defined by statute in that proceeding. On August 17, 2001, counsel for Williams and Skycrest filed the Application for an Award of Attorney's Fees and Costs and the Affidavit as to Reasonable and Necessary Attorney Fees pursuant to Section 57.111, Florida Statutes, now at bar. At the hearing on the case at bar, counsel for Williams and Skycrest elected not to present testimony nor evidence when given the opportunity to establish entitlement to attorney's fees and costs. Counsel elected to rely exclusively on the documents filed: (1) Affidavit as to Reasonable and Necessary Attorney's Fees and (2) the Application for an Award of Attorney's Fees and Costs, reserving the right to call rebuttal witnesses after the presentation of evidence by Respondent. Respondent defended the Probable Cause Panel's action of finding probable cause and filing the Administrative Complaints against Williams and Skycrest as substantially justified. Respondent presented testimony of two witnesses, both of whom addressed the process undertaken by the Probable Cause Panel that concluded in findings of probable cause against both Williams and Skycrest. At the conclusion of Respondent's substantial justification defense, counsel for Williams and Skycrest called a Stetson University law professor as Petitioners' rebuttal witness. When requested to provide a proffer of the rebuttal testimony, counsel stated that the witness would testify regarding corporate law in Florida, its application to the administratively dissolved Skycrest Pharmacy, and Williams' use of Skycrest pharmacy as a "small business." Respondent objected to Williams' rebuttal witness' proffered testimony as beyond the scope of Respondent's defense of "substantial justification" for the Probable Cause Panel's filing of the Administrative Complaints. After hearing arguments of counsel and considering the parties' binding stipulation that Skycrest was administratively resolved and would voluntarily surrender its license in return for Respondent's not prosecuting the charges against Skycrest, Respondent's objection to the proffered rebuttal testimony was granted. Counsel for Williams and Skycrest was afforded an opportunity to place the proffered testimony on the record for appellate purposes after the close of this hearing, but chose not to do so. Counsel for Williams and Skycrest, introduced no evidence in support of his Application for an Award of Attorney's Fees and Costs and has accordingly not met its burden of proof demonstrating entitlement to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
