The Issue The issue in this case is whether the Petitioner is entitled to licensure by endorsement as a physician in the State of Florida. At the hearing, the parties stipulated that the Petitioner meets all requirements for licensure by endorsement with the exception of the residency requirements of Sections 458.311(1)(f) and 458.313(1), Florida Statutes, and Rule 21M-22.004, Florida Administrative Code. The Petitioner testified as the only witness on his own behalf and offered nine exhibits. Each exhibit was received in evidence over the timely objections of counsel for the Board. Mrs. Dorothy Faircloth testified as the only witness for the Board. Four exhibits offered by the Board were received in evidence without objection. Upon the request of the Board, official recognition is taken of Sections 458.311 and 458.313, Florida Statutes, and Rule 21M-22.004, Florida Administrative Code. At the conclusion of the formal hearing, the Petitioner waived the filing of a proposed recommended order. The Board was allowed 14 days within which to file a proposed recommended order. On July 8, 1988, the Board filed its proposed recommended order containing proposed findings of fact and conclusions of law. All proposed findings of fact are addressed in the appendix to this recommended order.
Findings Of Fact Based on the stipulations of the parties and on the testimony and exhibits received at the hearing, I make the following findings of fact. The Petitioner is an applicant for licensure by endorsement as a physician in the State of Florida. The parties have stipulated that the Petitioner meets all requirements for such licensure other than the residency requirements. The Petitioner served as a "Resident 2" in medicine at the Westminster Hospital in London, Ontario, from July 27, 1976, to June 30, 1977. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the American Medical Association. During the time period from July 1976 to June 1977, the residency program at Westminster Hospital was not approved by the Royal College of Physicians and Surgeons of Canada. There is no evidence that the Petitioner completed any other approved one year residency program. The Petitioner is a diplomate certified in internal medicine by the American Board of Internal Medicine. The American Board of Internal Medicine permits certification based on experience without requiring completion of a one year residency approved by the American Medical Association. The Petitioner is licensed as a physician by the State of Michigan.
Recommendation For all of the foregoing reasons, it is recommended that the Board of Medicine issue a final order in this case denying the Petitioner's application for licensure by endorsement as a physician in the State of Florida. DONE AND ENTERED this 14th day of July, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1476 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings submitted by Petitioner (None submitted by Petitioner) Findings submitted by Respondent Paragraph 1: Accepted. Paragraph 2: Covered in introductory paragraphs. Paragraphs 3, 4, and 5: Accepted. Paragraph 6: Omitted as subordinate and unnecessary details. Paragraphs 7, 8, 9, and 10: Accepted. Paragraph 11: Omitted as repetitious. COPIES FURNISHED: Shio Narayanlal Agrawal, M.D. 4140 North West 64th Street Gainesville, Florida 33612 Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Room 1603, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2) There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner) While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1) On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3) On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2) In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner abandoned his position and resigned from the Career Service. DONE and ENTERED this 2nd day of August, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988. APPENDIX The following constitute rulings on the proposed findings of fact submitted by the panties to this case. Petitioner Accepted. Accepted, however, letter indicated that continued absence would constitute abandonment. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination). Accepted. Accepted. Rejected, irrelevant. Accepted, however, such leave must receive prior approval. Accepted. Accepted. Accepted. Rejected, irrelevant. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return. Respondent Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected, unnecessary. COPIES FURNISHED: Kathy R. Newman, Esquire Legal Services of North Florida, Inc. 211 East Jefferson Street Quincy, Florida 32351 Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure as a physician by endorsement.
Findings Of Fact Petitioner is presently licensed to practice medicine in Maryland. He has been licensed there since 1990. The Maryland licensing board has never investigated him on any ground. Petitioner has passed all of his medical examinations on the first try. He passed the Educational Commission for Foreign Medical Graduates Examination in 1981 and the United States Medical Licensing Examination in 1987. He passed the examination for board certification in internal medicine in 1992. Petitioner has published articles in peer review journals. He teaches medical students in residency programs at two separate hospitals. Petitioner has a busy practice, seeing approximately 20- 25 patients per day. He has staff privileges at two hospitals. He is an approved provider with a number of insurance companies and managed care organizations. Petitioner has never had any Medicare or Medicaid complaints brought against him. He has never been sued for malpractice. A hospital peer review board has never investigated him for any reason. Petitioner requested an application for licensure as a physician by endorsement sometime before March 21, 1997. Respondent sent him a packet of materials containing an application form, last revised on January 1995, together with application instructions, supplemental documentation forms, and selected laws.1 Section one of the application materials contained the application instructions. The instructions included the following relevant statements: PITFALLS: The following items in the application process cause delays in the process, therefore we strongly recommend: . . . Please remember the applicant is responsible for completing the application process and that as pieces/parts of the application are received they sometimes generate additional questions to be answered. * * * APPLICATION PROCESSING: Once the application is received in the Board office . . . , an initial review of the application and the supporting documentation is made. Then, the applicant is notified, in writing, of any deficiencies or any additional documentation that is or may be necessary either from the applicant or from any other source. The applicant is responsible for requesting the following information: * * * 3. American Medical Association Data Profile (AMA). * * * Certain responses from any source may require additional clarification from the applicant. When all the requested information is received for a licensure application file, a supervisory second review is made for completeness and for eligibility determination. PERSONAL APPEARANCE: Appearances before the Credentials Committee or the Board of Medicine may be required for a variety of reasons, . . . If an appearance is required, written notification will be mailed . . . . * * * COMPLETING THE APPLICATION * * * 11. PROFESSIONAL OR MEDICAL EDUCATION: Answer each question and complete the table by listing the name of each and every institution attended; the location of the institution, address, dates of attendance by month and year, domicile (where lived), did you graduate, if so degree received. * * * INTERNATIONAL MEDICAL GRADUATES CONTINUE WITH INSTRUCTIONS 12 THROUGH 43 * * * NOTE: Questions 11, 15, 16, and 17 should contain and account for all periods of time from the date of graduation from Medical School to present date. Omission of this information will cause a delay in the application process. * * * PROFESSIONAL OR POSTGRADUATE TRAINING: Answer each question. In the section provided, list chronologically each program attended starting with the first program and ending with the last or current program. List all programs you began whether or not you completed or received credit for the program. Omission of any professional or medical postgraduate training program(s) will cause a delay in the application process. * * * International Medical Graduates. Submit certificates of completion for each year. Additionally, a letter from the Program Director is required confirming postgraduate training level and that the position was allocated. PRACTICE or EMPLOYMENT: List in the space provided all current and past practice and employment settings to include moonlighting and locum tenens. Also utilize this space to delineate any unaccounted period of time from date of matriculation into Medical School to present date. * * * After a correspondent reviews the application and the explanation provided you will be notified of any evaluation and/or documentation needed to complete the application process. * * * DOCUMENTS TO BE SUBMITTED WITH THE APPLICATION * * * 8. CERTIFICATES OF COMPLETION FROM ALL PROFESSIONAL, MEDICAL-INTERNSHIP, RESIDENCY, FELLOWSHIP AND PGY LEVELS -- submit certificates of completion of all levels of training. * * * 19. Contact each applicable agency listed below on the form provided, to request the appropriate information be sent to the Florida Board of Medicine: . . . * * * AMERICAN MEDICAL ASSOCIATION DATA PROFILE ON FORM PROVIDED * * * A COPY OF EACH REQUEST MUST ACCOMPANY YOUR APPLICATION Section two of the application materials is the application form. It requests the following relevant information: 11. PROFESSIONAL/MEDICAL EDUCATION: MEDICAL EDUCATION: List all medical schools and universities attended, whether completed or not. [Table provided to include information required in application instructions] * * * PROFESSIONAL/POSTGRADUATE TRAINING: List all professional/postgraduate training program(s) began, whether completed or not. * * * List in chronological order from date of graduation from medical school all professional/postgraduate training (Internship, Residency, Fellowship) to the present. [Table provided to include information required in the application instructions] PRACTICE/EMPLOYMENT: List in chronological order from date of graduation to present date, all practice employment, non-employment and/or any unaccounted period of time from date of matriculation into medical school. [Table included to provide information required in application instructions] The last page of the application form contains an affidavit, which requires an applicant to swear as follows in relevant part: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in the application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida. On February 22, 1997, Petitioner signed the affidavit at the end of his application form. Section three of the application materials includes the form for applicants to use to request the AMA physician data profile. After receiving the request form, the AMA sends the requested information directly to Respondent. On March 21, 1997, Respondent received Petitioner's AMA physician data profile directly from the AMA. This information reflected, among other things, that Petitioner was in an anatomic and clinical pathology postgraduate training program at the University of Maryland Medical System (University of Maryland) from July 1, 1988 through June 30, 1989. On March 24, 1997, Respondent received Petitioner's application for licensure by endorsement, along with an attached copy of his curriculum vitae (CV). The CV was not required as part of the application process. In response to question 15 on the application form, Petitioner listed the following: (a) an internship at Harbor Hospital Center in Baltimore Maryland from July 1989 to June 1990; and (b) a residency at Harbor Hospital Center in internal medicine from July 1991 to June 1992. Petitioner did not list his participation in a postgraduate training program at the University of Maryland in anatomic and clinical pathology from July 1, 1988 to approximately June 15, 1989, in his application form or CV. Petitioner's CV represented that he was an associate professor of pre-clinical medicine and co-director of student health services at Ross University of Medicine in the Commonwealth of Dominica, West Indies, from July 1982 through June 1989. This information was incorrect. In response to question 16 on the application form, Petitioner stated that he was employed at Ross University School of Medicine as an associate professor in internal medicine from June 1982 to June 1989 in Dominica, West Indies. This information was incorrect because Petitioner resided in Maryland in 1988 through 1989. As stated above, he actually attended the University of Maryland from July 1, 1988 to approximately June 15, 1989. Respondent processed Petitioner's application in the usual and customary manner. His application file was subject to the same scrutiny that is customary for all applications. Petitioner does not contend that Respondent treated him any differently than other applicants. There were no gaps in dates, blank spaces, or questions left unanswered in Petitioner's application form. Petitioner's application form, on its face, did not contain any apparent errors or omissions relative to his training program at the University of Maryland. In fact, Petitioner's application form listed other activities accounting for all of the time in question here. Respondent discovered the apparent inconsistencies contained within Petitioner's application file by comparing his application form and CV with the AMA physician data profile. Because the documents were inconsistent, Respondent had reason to initiate an investigation to determine whether Petitioner had intentionally misrepresented information on his application form and CV. By letter dated April 28, 1997, Respondent requested the current program director of the University of Maryland's pathology department to furnish information as to why Petitioner left the four-year residency program in pathology after one year. Respondent sought responses to the following questions: Why did he leave the program? Did he leave the program in good standing? Did he break his contract? Did he receive full credit for his training? Please confirm the dates and the PGY level of his training. Was any disciplinary action ever taken against him? If yes, please explain. On April 28, 1997, 35 days after Petitioner filed his application, Respondent sent Petitioner a letter2 commencing with the following notice in relevant part: NO APPLICATION WILL BE CONSIDERED COMPLETE UNTIL ALL OF THE REQUESTED INFORMATION HAS BEEN RECEIVED IN THE BOARD OFFICE. The April 28, 1997, letter informed Petitioner that he needed to furnish Respondent with numerous documents before his application would be complete. It requested additional information on several items. The letter also sought an explanation for Petitioner's failure to list his pathology training at the University of Maryland on his application form. On May 19, 1997, Respondent received a form from the University of Maryland, verifying that Petitioner completed a residency in pathology from July 1, 1988 through June 8, 1989. Petitioner sent Respondent a letter dated May 31, 1997. Respondent received this letter on June 3, 1997. Petitioner's letter states as follows in pertinent part: I apologize for the discrepancy regarding the dates in training/teaching. I was enrolled in the Pathology Department of the University of Maryland from 7/1/88 - 6/30/89. Consequently, my Internal Medicine training was from 7/1/89 - 6/30/92. The certificates from Harbor Hospital support that. Also, I joined the Northwest Primary Care Group on July 1, 1995, not 7/94, as listed in my c.v. On June 30, 1997, Respondent received a letter from Dr. Sanford A. Stass, M.D., Pathology Resident Program Director and Director of Pathology Laboratories at the University of Maryland. This letter states as follows: I was not the Pathology Resident Training Program Director during Dr. Desai's residency. It was noted in his file by the previous Program Director, Seena Aisner, M.D., that Dr. Desai would not be given credit for the year from July 1, 1988 - June 30, 1989 since he did not fulfill his contractual year. Respondent sent Petitioner a letter dated July 1, 1997. This letter states as follows in pertinent part: Please explain why you left the Pathology program at the Univ. of Maryland after one year. Did you leave in good standing? Did you break your contract? Were you given full credit for your training? Respondent's letters dated July 23, 1997, and August 5, 1997, made an identical inquiry. The August 5, 1997, letter3 contains an additional notice at its conclusion, which states as follows: YOUR APPLICATION REMAINS INCOMPLETE FOR THE ABOVE. PLEASE BE ADVISED THAT YOUR APPLICATION WILL EXPIRE March 26, 1998. The application fee is non-refundable. Petitioner sent Respondent a letter dated August 24, 1997. Respondent received this letter on September 10, 1997. The letter states as follows in pertinent part: I did not break my contract at the University of Maryland. I was offered an internship at Harbor Hospital Center in Baltimore, and I took the vacation due to me and transferred over into clinical medicine. This response was incomplete. It did not state whether Petitioner left the program at the University of Maryland in good-standing or whether he received credit for the program. Respondent sent Petitioner a letter dated September 11, 1997, which states as follows in relevant part: Did you leave the Pathology program at the Univ. of Maryland in good standing? Did you receive full credit for your training? Why did you not list this training on your application? By letter dated October 6, 1997, Petitioner indicated that he was enclosing additional documents for his application file and that documents related to his staff privileges at Harbor Hospital would be sent as soon as Respondent provided the hospital with the required paperwork. This letter did not reference Respondent's inquiry regarding the incomplete residency program in pathology. Respondent sent Petitioner a letter dated October 15, 1997, which states as follows in relevant part: Did you leave the Pathology program at the Univ. of Maryland in good standing? Did you receive full credit for your training? Why did you not list this training on your application? Petitioner sent Respondent a letter dated October 23, 1997. Respondent received this letter on November 3, 1997. It states as follows in pertinent part: 3. I have mentioned to you previously that I did one year of residency in Pathology, and left at the end, when my accrued vacation was due to me, to pursue clinical medicine. Whether I got credit for this or not is irrelevant, since it would not have counted towards my Internal Medicine training. I apologize if I did not list it in the application. This explanation does not state whether Petitioner left the program in good standing or whether he received credit for the program. Respondent determined that Petitioner's application file was complete on November 5, 1997. Respondent sent Petitioner a letter dated November 5, 1997. This letter states as follows: Your application is pending a secondary supervisory review. Please be advised you will be required to make a personal appearance before the Credentials Committee to discuss your postgraduate training at the University of Maryland and any relevant issues the Board may deem necessary. Pending passage of the above mentioned second review, and provided that no further issues need to be clarified, nor additional documentation submitted, your name will be placed on the agenda for the next scheduled Credentials Committee meeting of the Florida Board of Medicine. Your will be advised of the specific date, time, and location of the scheduled appearance. By letter dated November 6, 1997, Respondent advised Petitioner that he would be required to appear before the credentials committee to discuss his failure to list his training at the University of Maryland on his licensure application and his CV. Petitioner was to appear before the committee on November 22, 1997. He was advised that Respondent would consider the committee's recommendation and take final action on Petitioner's application at Respondent's meeting on December 6-7, 1997.4 Petitioner sent Respondent a letter dated November 10, 1997. This letter states as follows in pertinent part: Because of previous commitments to my on- call group, I will not be able to attend the meeting on 11/22/97. I will need at least 4- 6 weeks notice to make arrangements, if I am required to make a personal appearance. If you can provide me with a rational and pertinent reason for my personal appearance to explain the lapse in the c.v. and the application as regards the training at the University of Maryland in the Pathology program, I shall be happy to respond. As stated previously, I made an error in not listing this aspect of my career, but it was not applied towards any credit to the Internal Medicine residency that I later completed. In this day of instant communication, a phone conference would be just as appropriate. Please have the Board present me the necessary information so that I can justify a trip to Tallahassee. Respondent sent Petitioner a letter dated December 8, 1997. This letter states in relevant part: At a meeting on November 22, 1997 the Board of Medicine accepted the recommendation of it's [sic] Credentials Committee to defer action on your application until the next meeting of the Credentials Committee at which time you must appear to discuss the issues. The next meeting of the Credentials Committee is scheduled for January 17, 1998 in Miami, Florida. By letter dated December 15, 1997, Respondent advised Petitioner to appear before the credentials committee on January 17, 1998. Petitioner was also advised that the recommendation of the committee would be presented to Respondent on February 6-8, 1998, for final action. Petitioner agreed to attend the scheduled meeting in a letter dated December 19, 1997. At the meeting with the credentials committee on January 17, 1998, Petitioner revealed for the first time that he began receiving anonymous letters during the last two months of his pathology residency. The letters threatened him with physical harm if he did not leave the program. Petitioner got along very well with his colleagues and faculty members when he began his residency program in pathology in July 1988. Petitioner stated that he was not aware that he had problems with anyone in the residency program or hospital when he began receiving the letters. Petitioner discussed the anonymous letters with the director of the training program. Petitioner took no action until he was due for two weeks of vacation at the end of the first year of the program. On or about June 15, 1989, he decided to take his vacation and not return to the program. The program director of the residency program in pathology did not object to Petitioner's withdrawal from the program. Petitioner was not failing at the time of his withdrawal. However, he did not receive credit for his residency training in pathology because he technically withdrew from the program before he completed his first year. Petitioner subsequently transferred to another residency training program in internal medicine at the University of Maryland. He successfully completed that program. At the meeting of the credentials committee, Petitioner alleged that he had repressed his memory of the incomplete residency when he filed his application form on March 24, 1997. At the conclusion of the meeting, the committee advised Petitioner that his application would be denied based on misrepresentations and falsifications in the application. He was advised that a full report would be sent to Respondent. The decision by the credentials committee on January 17, 1998, marked the end of Respondent's investigation. By letter dated February 13, 1998, 27 days after Respondent completed its investigation and seven days after Respondent made its decision, Respondent advised Petitioner that it denied his application at a meeting on February 6-7, 1998. The letter purports to be unofficial notification of Respondent's action. It states that Petitioner would receive an order outlining his rights under Sections 120.57(1) and 120.57(2), Florida Statutes. On March 18, 1998, 60 days after Respondent completed its investigation and 39 days after Respondent made its decision, Respondent issued a formal Notice of Intent to Deny Petitioner's application. The denial was based on the following: . . . your inability to practice medicine with reasonable skill and safety, and your fraudulent misrepresentations or falsification on your application, as demonstrated by your application [which] failed to document your training at the University of Maryland Medical System, your application failed to reflect your residency location or your practice in Maryland during 1988 and failed to account for the period of time between 1989 and 1995; your curriculum vitae failed to reflect: your "Educational Qualifications" at the University of Maryland Medical System, the conclusion of your "Appointments" at Ross University of Medicine in 1988, the conclusions of your "Teaching Experience" at Ross University of Medicine in 1988, and the conclusion of your "Clinical Experience" at Ross University of Medicine in 1988. In 1990, Petitioner applied for licensure in Maryland. He notified the Maryland Medical Board of his incomplete residency program. Petitioner disclosed his incomplete residency in pathology when he applied for staff privileges at Northwood Hospital in 1992. Petitioner revealed his incomplete residency in pathology when he underwent the application process to become a teacher at the University of Maryland in 1995. In 1998, after filing his application with Respondent, Petitioner disclosed his incomplete residency when he applied to Sinai Hospital. In this case, the evidence demonstrates that Petitioner made intentional or fraudulent misrepresentations on his application and CV by omitting information relative to his training in pathology at the University of Maryland. In an attempt to conceal his omission, Petitioner falsified other sections of his application and CV as outlined in Respondent's Notice of Intent to Deny. When Respondent began its investigation, Petitioner acknowledged his mistake. He explained that he entered a training program in internal medicine after leaving the pathology program. That was a truthful but incomplete statement. In subsequent correspondence with Respondent, Petitioner deliberately concealed his private reason for leaving the pathology program and transferring to an internal medicine program. He failed to answer direct questions about his withdrawal from the pathology program such as whether he left the program in good-standing or whether he received full credit for his training in 1988-1989. He stated that he had not broken his contract for the first year of his pathology residency even though he had not met all requirements to receive credit for his work. He took the position that it was irrelevant whether he received credit for the incomplete residency. After Respondent advised Petitioner that he would have to make a personal appearance before the credentials committee, Petitioner continued to assert that there was no "pertinent reason" for his personal appearance. At the meeting of the credentials committee meeting on January 17, 1998, Petitioner revealed the real reason that he withdrew from the pathology program for the first time. Petitioner's testimony that he repressed his memory of the incomplete residency when he filed his application is not credible. During the formal hearing, Petitioner stated that he did not answer the questions in Respondent's letters because he did not feel that it was appropriate to answer them. He stated that he did not want to answer the questions because of the nature of the reasons for his withdrawal from the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner a license to practice medicine by endorsement. DONE AND ENTERED this 11th day of June, 1999, 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 11th day of June, 1999.
The Issue Whether Respondent, a medical doctor, practiced beyond the scope of his temporary certification and/or failed to notify the Board of Medicine of changes in employment, as Petitioner alleges; if so, whether (and what) disciplinary measures should be taken against Respondent's temporary license, which authorizes him to practice only in areas of critical need.
Findings Of Fact At all times relevant to this case, Respondent held a temporary conditional certification to practice as a medical doctor in an area of critical need ("ACN") within the state of Florida, having been issued license number ACN 313. Petitioner has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, Petitioner alleges that Respondent committed three such offenses. In the three-count Complaint, Petitioner charges that Respondent violated section 458.331(1)(g), Florida Statutes, "by failing to perform any statutory or legal obligation placed upon a licensed physician"; section 458.331(1)(v) by "practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform"; and section 458.331(1)(m) by "violating any provision of Chapter 458 or Chapter 456, or any rules adopted pursuant thereto." Respondent is certified to practice medicine pursuant to a Rear Admiral Leroy Collins, Jr., Temporary Certification to practice medicine only in ACNs that have been approved pursuant to section 458.315(3), Florida Statutes. A doctor certified to practice in an ACN receives a temporary certificate from the Board of Medicine pursuant to section 458.315, Florida Statutes. The certificate is temporary and conditional. Section 458.315(3) requires that an ACN certified physician practice in an ACN; a county health department; correctional facility; Department of Veterans Affairs clinic; community health center funded by section 329, section 330, or section 340 of the United States Public Health Services Act; or other agency or institution that is approved by the State Surgeon General and provides health care to meet the needs of underserved populations in this state; or for a limited time to address critical physician-specialty, demographic, or geographic needs for this state's physician workforce as determined by the State Surgeon General. Once issued, the certified ACN physician can practice in any Surgeon General approved area of critical need facility; however, within 30 days of accepting employment, the ACN physician must notify the Board of Health of all approved institutions in which the licensee practices and of all approved institutions where practice privileges have been denied. On or about September 24, 2008, Respondent submitted to Petitioner an application for temporary certificate to practice in an ACN. Respondent was notified via correspondence dated June 11, 2009, that his application was approved, and that he had been issued license number ACN 313. The June 11, 2009, correspondence summarily advised Respondent of the following conditions and limitations on his license: Your license limits your practice to Project Access Foundation Medical Clinics, 8000 Biscayne Blvd., Miami, FL 33188. Practicing with that limitation is a very important statutory and legal requirement. Notifying this office of your current specific practice location is equally important. Your license will expire on 1/31/2010. From June 11, 2009 through January 26, 2010, Respondent did not notify Petitioner that he had accepted employment at any medical facility. On or about January 26, 2010, Petitioner processed Respondent's ACN renewal application. In the "Financial Responsibility Form" included within the renewal application, Respondent checked the box that provides, "I do not practice medicine in the State of Florida." Nearby, Respondent wrote, "In this moment." Respondent's ACN license was renewed on or about January 29, 2010, and was valid through January 31, 2012. On or about November 17, 2010, the Agency for Health Care Administration ("ACHA") was notified that Respondent was acquiring 100 percent of the shares of stock for Global Rehabilitation Center, Inc. ("Global"). The undisputed evidence establishes that Respondent practiced medicine at Global. Respondent did not disclose this practice location to Petitioner until September 2012, during the course of an investigation. At that time, Respondent divulged that he had worked at Global for approximately two years. It is further undisputed that, at the time Respondent acquired Global, and all material times subsequent, Global was not an ACN approved facility. Respondent never applied to have Global placed on the ACN approved facility list. Respondent practiced medicine at another facility, Policlinico Pastorita, Inc. ("Policlinico"), from August 2009 to the present. Respondent first notified Petitioner of this practice location on or about January 10, 2012, as part of his renewal package. Policlinico did not become an approved ACN facility until October 8, 2012. The undisputed evidence established that Respondent also practiced medicine at Injury Rehabilitation Center, Inc.2/ Said facility was never an approved ACN facility. Respondent did not notify Petitioner of this practice location until September 2012, during the course of an investigation. On May 18, 2011, Archy's Diagnostic Center was approved as an ACN facility. On or about January 23, 2012, Respondent, as part of his license renewal process, advised Petitioner that his current practice location was Archy's Diagnostic Center. Respondent, in his PRO, makes the following concessions: (1) that he failed to notify the Board of Medicine within 30 days of accepting employment at either an ACN approved or non-approved facility; (2) that he failed to use his ACN temporary certificate to work exclusively at ACN-approved facilities; and (3) that he did not comply with sections 458.315(4)(a), 458.331(1)(g), and 458.331(1)(v). Respondent, in mitigation, contends that he never attempted to evade the reporting requirements. Respondent testified that he initially believed Policlinco was an ACN approved facility because of the demographics of the practice and because the owner advised him that he could practice medicine at that facility. On this point, Respondent further testified as follows: "[B]ut I ignored, I didn't know that I had to report myself to Tallahassee to the health department but later on I learned that I had to do that." Concerning Global, Respondent testified that apparently he just forgot about the requirements of ACN approval or never thought of the requirements. The undersigned finds Respondent's testimony that he was unaware of the reporting requirements of his ACN license is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating section 458.331(1)(g), (v), and (nn); and imposing the following penalties: a two-year suspension, a $1,000.00 administrative fine, and a one-hour lecture on the reporting requirements of a temporary certificate for practice in areas of critical need. DONE AND ENTERED this 13th day of January, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 January, 2014.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part I], and Chapter 400, Part X, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:13 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 75 day of bam ee , 2014. NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Ogder was served on the below-named persons by the method designated on this ebrtay of en Lia , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Arlene Mayo—Davis, Field Office Manager Medicaid Accounts Receivable Local Field Office Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Daniel A. Johnson, Senior Attorney Medicaid Contract Management Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Division of Administrative Hearings Dagmar Llaudy, Esquire (Electronic Mail) Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. , (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
