The Issue Whether the Petitioners have alleged facts sufficient to prove their standing to challenge the Respondent's proposed amendment to Rule 21-18.002, Florida Administrative Code?
Findings Of Fact The Florida Society of Opthalmology, Inc., Emanuel Newmark, M.D. and Waite S. Kirkconnell, M.D)., filed a Petition to Determine The Invalidity of a Rule (hereinaffter referred to as the "Petition"), with the Division of Administrative Hearing on May 29, 1990. In the Petition the Petitioners challenged the validity of a proposed amendment to Rule 21-18.002, Florida Administrative Code (hereinafter referred to as the "Rule Amendment"). The Rule Amendment was filed with the Secretary of State on March 3, 1990, with the Rule Amendment to take effect on May 7, 1990. The Rule Amendment allows licensed, certified optometrists to administer and prescribe certain Steroids and certain Steroid/Sulfonamide combinations. It is alleged in the Petition that the Petitioner, Florida Society of Ophthalmology, Inc. (hereinafter referred to as "FSO"), is: a Florida not-for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians, specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of Florida ophthalmologists, improve quality of health care administered to the public, and to educate the public to its needs for adequate health care. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. Pages 1 and 2 of the Petition. The following allegations concerning Dr. Newmark and Dr. Kirkconnell are included in the Petition: That Petitioner, DR. NEWMARK, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. NEWMARK maintains an office for the practice of medicine in Atlantis, Florida. Petitioner, DR KIRKCONNELL, is a physician licensed by the State of Florida pursuant to chapter 458, Florida Statutes. DR. KIRKCONNELL maintains an office for the practice of medicine in Tampa, Florida. Both physicians specialize in the field of ophthalmic medicine or ophthalmology. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. 3. That Petitioners DR. NEWMARK and DR. KIRKCONNELL file this Petition on behalf of themselves and all other persons similarly situated; i.e., licensed Florida physicians practicing ophthalmic medicine in the State of Florida. These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. Page 2 of the Petition. The Petition contains two Counts challenging the Rule Amendment. In support of the Petitioners' standing, the following allegations are contained in Count I: That the Rule Amendment purports to authorize the practice of medicine by persons who are not licensed to practice medicine by chapters 458 and 459, Florida Statutes, thereby adversely affecting Petitioners' property right to practice medicine. That Petitioners are concerned with protection of the public by ensuring that persons engaged in the various health care professions are qualified to do so, and Petitioners believe that the Rule Amendment with illegally authorize certified optometrists to adversely affect the public health through utilization of drugs which they are not qualified to prescribe, administer or monitor. Page 5 of the Petition. In Count II of the Petition, allegations almost identical to paragraph 17 of the Petition are made. On June 13, 1990, the Intervenors filed Intervenors' Motion to Dismiss. On June 27, 1990, the Petitioners filed Petitioners' Response to Respondent's [sic] Motion to Dismiss. On June 28, 1990, the Petitioners filed Amendment to Petitioners' Response to Respondents' [sic] Motion to Dismiss correcting the title of the Motion and correction of a citation to a court decision contained in the Motion. In the Petitioners' Response to Respondent's [sic] Motion to Dismiss the Petitioners state the following: The pleadings allege adequate facts in the following paragraphs from the petition: ".... improve quality of health care administered to the public, and to educate the public to its needs for adequate health care . . . .... Many of Petitioners' patients also visit optometrists for some of their vision care needs .... .... These Petitioners also file this Petition on behalf of their patients, who are consumers of eye care and vision care services in the State of Florida. The Petitioners also quoted paragraphs 17 and 26 of their Petition. Pursuant to written notice a motion hearing was held on July 3, 1990, to consider the Intervenors' Motion to Dismiss and other motions previously filed by the parties. Following oral argument of the parties, the parties were informed that the Intervenors' Motion to Dismiss would be granted. The FSO and the individual ophthalmologists in Board of Optometry v. Society of Ophthalmology, 538 So. 2d 878 (Fla. 1st DCA 1989), cert. denied, 545 So. 2d 1367 included the following allegations of fact concerning their standing in their Petition in that case: 1. Petitioner FSO is a Florida net- for-profit incorporated association of ophthalmologists, who are allopathic and osteopathic physicians (M.D.'s and D.O.'s) specializing in the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery, and corrective lenses and prisms. FSO acts and is organized to further the education, professional, and economic interests of the Florida ophthalmologists. FSO routinely represents and serves its members through public relations activities, interactions with governmental agencies, and participation in administrative proceedings, legislative affairs and litigation. In addition to the representation of its members, FSO is committed as an organization to protecting, maintaining and improving the quality of eye care which is available to the public. 3. Petitioners Broussar, Patrowicz, and Byerly are physicians licensed by the State of Florida pursuant to Chapter 458, Fla. Stat. Broussard maintains an office for the practice of medicine in Melbourne, Florida; patrowicz in Mount Dora, Florida; and Byerly in Tallahassee, Florida. Each physician specializes in the field of ophthalmic medicine opthalmology. Ophthalmology consists of the medical diagnosis of eye diseases, anomalies and disorders, and treatment with medication, surgery and corrective lens and prisms. Many of these Petitioners' patients also visit optometrists for some of their vision care needs. . . The following allegations were included in the petition in Board of Optometry, concerning the substantial affect on the FSO and the individual opthalmologists: The physician Petitioners and a substantial number of the members of the association Petitioners are substantially affected by the Board's proposed certification of any optometrist as a certified optometrist in the following ways: Petitioners believe that the certification of optometrists, and the concomitant authorization of such certified optometrists to use and prescribe medications in their practice of optometry encroaches on the right of physicians licensed to practice medicine pursuant to Chapter 458, Fla. Stat. The right to practice medicine is a valuable property right in Florida, and subject to the protection of the due process clauses of the Florida and United States Constitutions. Petitioners have been denied due process in regard to the impending infringement on or diminution in value of their property rights. Petitioners also believe that the quality of eye care and health care available to the public will decline as optometrists are certified to use and prescribe medicine in the practice of optometry. Petitioners believe that allowing optometrists to administer and prescribe drugs presents a danger to the public, including but not limited to Petitioners' patients. Petitioners believe that the general public is uninformed as to the distinction between optometrists and ophthalmologists, when in fact significant differences exist in education, training, ability, experience, and scope of practice. The designation of some optometrists as "certified optometrists" further adds to the confusion and will result in the treatment by optometrists of patients who should be treated by Physicians. This not only will result in economic injury to physicians, including the. physician Petitioners and all other similarly situated, but also in injury to their practices, loss of public respect for their profession, and to the health and welfare of Petitioners' patients and the patients of other similarly situated physicians.
Findings Of Fact On February 4, 1980, the Office of Medicaid Quality Control advised Respondent that a review of his Medicaid claims revealed that he billed the Medicaid Program for psychiatric services and further advised him that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program for such services. The letter further requested that Respondent provide Petitioner with a copy of his Board certification. (Although the letter admitted in evidence bears the date of February 4, 1979, it is obvious that the date contains a typographical error, since the letter pertains to services previously rendered in April of 1979, and refers to a rule which became effective January 1, 1980.) By letter dated February 8, 1980, Respondent replied, by advising Petitioner that he was neither Board-certified nor Board-eligible. Respondent included in his letter a recitation of his extensive experience and qualifications as a psychiatrist. In spite of Petitioner's failure to reply to his letter or to authorize him to do so, Respondent continued to bill Petitioner for psychiatric services rendered to Medicaid recipients, and Petitioner continued to pay Respondent's claims. During the summer of 1981, Petitioner determined that ineligible psychiatrists were billing the Medicaid Program for psychiatric services rendered to Medicaid recipients. In order to ascertain those qualified to bill the Program, form letters were sent to all providers of psychiatric services requesting documentation of Board eligibility or Board certification and further advising that only Board-certified or Board-eligible psychiatrists were entitled to bill the Program. On August 5, 1981, that form letter was sent to Respondent. On August 11, 1981, Respondent replied to the August 5 form letter by again advising Petitioner that he was not Board-certified or Board-eligible and his extensive background and qualifications as a psychiatrist. Although no reply was made to his August 1981 letter to Petitioner, Respondent continued to bill the Medicaid Program for psychiatric services, and Petitioner continued to pay Respondent's claims. Respondent is not presently, and has never been, a Board-certified psychiatrist or a candidate for Board certification. During the period from January 1, 1980, through February, 1982, Respondent billed for and was paid $38,252.75 by the Medicaid Program for providing psychiatric services to Medicaid recipients. Petitioner never advised Respondent that he was entitled to bill the Medicaid Program for providing psychiatric services to Medicaid recipients notwithstanding the fact that he was not a Board-certified psychiatrist or a candidate for Board certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered directing Respondent to reimburse to Petitioner the sum of $38,252.75 for payments received by him for psychiatric services rendered from January 1, 1980, through February, 1982. DONE and RECOMMENDED this 15th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 15th day of March, 1983. COPIES FURNISHED: Robert A. Weiss, Esquire Medicaid Program Office Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Suite 233 Tallahassee, Florida 32301 Bruce M. Boiko, Esquire 1000 Ponce de Leon Boulevard, Suite 212 Coral Gables, Florida 33134 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether the Florida Medical Association and Florida Association of Physicians Assistants have standing to initiate this challenge to the proposed rules. (See Section 120.56(3) Florida Statutes.) Whether proposed Rules 64B1-4.010 and 64B1-4.011, Florida Administrative Code, constitute invalid exercises of delegated legislative authority because they exceed the Board of Acupuncture's rulemaking authority contained in Section 457.104, Florida Statutes. (See Section 120.52(8)(b), Florida Statutes.) Whether proposed Rules 64B1-4.010 and 64B1-4.011, Florida Administrative Code, constitute invalid exercises of delegated legislative authority because they enlarge, modify, or contravene the provisions of Section 457.102, Florida Statutes. (See Section 120.52(8)(c), Florida Statutes.)
Findings Of Fact It was stipulated that Petitioner FMA is organized and maintained for the benefit of approximately 16,000 licensed allopathic and osteopathic Florida physicians. FMA's standing in this proceeding has always been at issue. The foregoing stipulation encompasses all of the factual allegations about Petitioner contained in the Petition. Dr. Steven West, an allopathic physician licensed in the State of Florida pursuant to Chapter 458, Florida Statutes, and a member of FMA, testified as follows: Well, we have two interests. Certainly one interest is that we want to make certain that only qualified individuals and practitioners treat patients and diagnose patients because we have an interest in the health and welfare of the people of the State of Florida. Secondly, we have an interest in making certain that all of the hard work and time that we have spent in our training remains valuable and is considered unique and important. And so we have a concern about the devaluation of the practice of medicine. (TR-17) It was stipulated that there is only one Respondent, the Board of Acupuncture, created by the Florida Legislature and placed within the Florida Department of Health. It is axiomatic that Respondent has standing herein. There were no stipulations as to the standing of either intervenor, and both the Board and FSOMA have asserted in their respective Proposed Final Orders that FAPA, as well as FMA, is without standing to bring this rule challenge. However, no party has contested the veracity of the factual statements concerning standing in either Petition to Intervene, and no party opposed intervention. The Petitions to Intervene of FAPA and FSOMA were granted, subject to proving-up standing at hearing. Even stipulations as to standing do not preclude consideration of standing as a matter of law. Florida Medical Ass'n., Inc., et al. v. Dept. of Health, Florida Bd. of Nursing, et al., DOAH Case No. 99-5337RP (Final Order March 13, 2000), per curiam affirmed Bd. of Nursing, et al. v. Florida Medical Ass'n., Inc., et al, So. 2d (Fla. 1st DCA 2001). Therefore, under these circumstances, and applying that case, the intervenors' factual allegations for purposes of standing may be taken as true for findings of fact, but each intervenor's status still depends upon that of the respective party upon whose behalf each intervenor entered this case. Therefore, with regard to the status of FAPA, it is found that: FAPA is organized and maintained for the benefit of the licensed Florida physicians assistants who compromise [sic] its membership and has as one of its primary functions to represent the interests of its members before various governmental entities of the State of Florida, including the Department of Health and its boards. (FAPA Petition to Intervene) Therefore, with regard to the status of FSOMA, it is found that: FSOMA is a Florida nonprofit corporation comprised of over one-third of the doctors of oriental medicine and licensed acupuncturists under the regulatory aegis of the Board of Acupuncture, State of Florida Department of Health, Chapter 457, F.S., with a mission to represent the acupuncture and oriental medicine practitioner interests of its members in judicial, administrative, legislative and other proceedings. (FSOMA Petition to Intervene) The text of proposed Rule 64B1-4.010, set forth in the petition is no longer correct, because it has been altered by Notices of Change, pursuant to Chapter 120, Florida Statutes. Rule 64B1-4.010, as currently proposed, would provide: Traditional Chinese Medical Concepts, Modern Oriental Medical Techniques. Traditional Chinese medical concepts and modern oriental medical techniques shall include acupuncture diagnosis and treatment to prevent or correct malady, illness, injury, pain, addictions, other conditions, disorders, and dysfunction of the human body; to harmonize the flow of Qi or vital force; to balance the energy and functions of a patient; and to promote, maintain, and restore health; for pain management and palliative care; for acupuncture anesthesia; and to prevent disease by the use or administration of: stimulation to acupuncture points, ah-shi points, auricular points, channels, collaterals, meridians, and microsystems which shall include the use of: akabane; allergy elimination techniques; breathing; cold; color; correspondence; cupping; dietary guidelines; electricity; electroacupuncture; electrodermal screening (EDS); exercise; eight principles; five elements; four levels; hara; heat; herbal therapy consisting of plant, animal, and/or mineral substances; infrared and other forms of light; inquiring of history; jing-luo; listening; moxibustion; needles; NAET; observation; oriental massage -- manual and mechanical methods; palpation; physiognomy; point micro-bleeding therapy; pulses; qi; xue and jin-ye; ryodoraku; san-jiao; six stages; smelling; tongue; tai qi; qi gong; wulun- baguo; yin-yang; zang-fu; Ayurvedic, Chinese, Japanese, Korean, Manchurian, Mongolian, Tibetan, Uighurian, Vietnamese, and other east Asian acupuncture and oriental medical concepts and treatment techniques; French acupuncture; German acupuncture including electroacupuncture and diagnosis; and, the use of laboratory test and imaging findings. (Emphasis supplied). The "authority" cited by the Board for proposed Rule 64B1-4.010 is Sections 457.102 and 457.104, Florida Statutes. The Board cites the "law implemented" for Rule 64B1- 4.010 as Section 457.102, Florida Statutes. The text of Rule 64B1-4.011, as set forth in the petition also is no longer correct, because it has been changed by Notices of Change, pursuant to Chapter 120, Florida Statutes. Rule 64B1-4.011, as currently proposed, would provide: Diagnostic techniques which assist in acupuncture diagnosis, corroboration and monitoring of an acupuncture treatment plan or in making a determination to refer a patient to other health care providers shall include: traditional Chinese medical concepts and modern oriental medical techniques, recommendation of home diagnostic screening; physical examination; use of laboratory test findings; use of imaging films, reports, or test findings; office screening of hair, saliva and urine; muscle response testing; palpation; reflex; range of motion, sensory testing; thermography; trigger points; vital signs; first-aid; hygiene; and sanitation. (Emphasis supplied). The "authority" cited by the Board for proposed Rule 64B1-4.011 is Sections 457.102(1) and 457.104, Florida Statutes. The Board cites the "law implemented" for proposed Rule 64B1-4.011 as Section 457.102 (1), Florida Statutes. Section 457.104, Florida Statutes, currently provides: The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of this chapter conferring duties upon it. Section 457.102, Florida Statutes, currently provides: "Acupuncture" means a form of primary health care, based on traditional Chinese medical concepts and modern oriental medical techniques, that employs acupuncture diagnosis and treatment, as well as adjunctive therapies and diagnostic techniques, for the promotion, maintenance, and restoration of health and the prevention of disease. Acupuncture shall include, but not be limited to, the insertion of acupuncture needles and the application of moxibustion to specific areas of the human body and the use of electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies, as defined by board rule. "Acupuncturist" means any person licensed as provided in this chapter to practice acupuncture as a primary health care provider. "Board" means the Board of Acupuncture. "License" means the document of authorization issued by the department for a person to engage in the practice of acupuncture. "Department" means the Department of Health. "Oriental medicine" means the use of acupuncture, electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies. "Prescriptive rights" means the prescription, administration, and use of needles and devices, restricted devices, and prescription devices that are used in the practice of acupuncture and oriental medicine. (Emphasis supplied) The Board asserts that the use of a comma between "other adjunctive therapies" and "as defined by board rule" in the second sentence of Section 457.102(1), Florida Statutes, establishes that the clause "as defined by board rule" applies to "the insertion of acupuncture needles and the application of moxibustion to specific areas of the human body and the use of electroacupuncture, Qi Gong, oriental massage, herbal therapy, dietary guidelines, and other adjunctive therapies," and those practices "included but not listed." Rule 64B1-3.001, Florida Administrative Code, most recently amended February 27, 1992, addresses "adjunctive therapies" of acupuncturists as follows: Acupuncture diagnostic techniques shall include but not be limited to the use of observation, listening, smelling, inquiring, palpation, pulses, tongues, physiognomy, five element correspondence, ryordoraku, akabani, German electro acupuncture, Kirlian photography, and thermography. (Emphasis supplied). * * * Adjunctive therapies shall include but not be limited to: Nutritional counseling and the recommendation of nonprescription substances which meet the Food and Drug Administration labeling requirements, as dietary supplements to promote health; Recommendation of breathing techniques and therapeutic exercises; and Lifestyle and stress counseling; The recommendation of all homeopathic preparations approved by the Food and Drug Administration and the United States Homeopathic Pharmacopeia Committee; and Herbology. This rule has not been challenged.1 Likewise, Rule 64B1-4.008, Florida Administrative Code, promulgated December 24, 2000, has not been challenged,2 and defines "adjunctive therapies," of acupuncturists as follows: Adjunctive therapies shall include the stimulation of acupuncture points, ah-shi points, auricular points, channels, collaterals, meridians, and microsystems with the use of: air; aromatherapy; color; cryotherapy; electric moxibustion; homeopathy; hyperthermia; ion pumping cords; iridology; kirlian photography; laser acupuncture; lifestyle counseling; magnet therapy; paraffin; photonic stimulation; recommendation of breathing techniques; therapeutic exercises and daily activities; sound including sonopuncture; traction; water; thermal therapy; and other adjunctive therapies and diagnostic techniques of traditional Chinese medical concepts and modern oriental medical techniques as set forth in Rule 64B1-4.010. (Emphasis supplied). Acupuncturists are, by law, "primary health providers." Subsections 457.102(1) and (2), Florida Statutes. (See Finding of Fact 14). A primary health care provider is a professional to whom patients can go without a referring physician and who, by diagnosis and treatment, assumes responsibility for patients' appropriate care. Allopaths and osteopaths are also primary health care providers. FSOMA asserted that the challenged rules are supported by Section 457.1085, Florida Statutes, which provides, 457.1085 Infection control--Prior to November 1, 1986, the board shall adopt rules relating to the prevention of infection, the safe disposal of any potentially infectious materials, and other requirements to protect the health, safety, and welfare of the public. Beginning October 1, 1997, all acupuncture needles that are to be used on a patient must be sterile and disposable, and each needle may be used only once. The traditional course of education, training, and experience for allopathic physicians and osteopathic physicians involves four years of undergraduate college education, four years of medical school, one-year internship, and one to two years of residency, but is more specifically set out for licensing purposes in Sections 458.311-458.318, Florida Statutes, for allopaths, and Sections 459.0055-459.008, Florida Statutes, for osteopaths. All of these courses/periods of learning involve, to a greater or lesser degree, learning to use and interpret modern laboratory and imaging tests. The traditional course of education for acupuncturists involves only two years of college and four years of acupuncture schooling, but is more specifically set out for licensing purposes by Section 457.105, Florida Statutes. Four hours per week for one year is about the extent of training in the use and interpretation of modern laboratory tests and imaging films afforded acupuncture students. There clearly are more stringent requirements for licensure of allopaths and osteopaths than for acupuncturists. Allopaths and osteopaths clearly spend more time training in the ordering, use, and interpretation of modern laboratory tests and film imaging. As previously stated (see Finding of Fact 14), an acupuncturist, as defined by law, . . . employs acupuncture diagnosis and treatment, as well as adjunctive therapies and diagnostic techniques for the promotion, maintenance, and restoration of health and the prevention of disease . . .(Emphasis supplied). Section 458.305(3), Florida Statutes, defines the "practice of medicine" as "Practice of medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or physical or mental condition. (Emphasis supplied). Section 459.003(3), Florida Statutes, defines the "practice of osteopathic medicine" as "Practice of osteopathic medicine means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. (Emphasis supplied). The following statutes express the Legislature's intent with regard to regulation of acupuncturists, allopaths, and osteopaths: 457.101 Legislative Intent - The Legislature finds that the interests of the public health require the regulation of the practice of acupuncture in this state for the purpose of protecting the health, safety, and welfare of our citizens while making this healing art available to those who seek it. 458.301 Purpose - The Legislature recognizes that the practice of medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The Legislature finds further that it is difficult for the public to make an informed choice when selecting a physician and that the consequences of a wrong decision could seriously harm the public health and safety. The primary legislative purpose in enacting this chapter is to ensure that every physician practicing in this state meets minimum requirements for safe practice. It is the legislative intent that physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. 459.001 Purpose - The Legislature recognizes that the practice of osteopathic medicine is potentially dangerous to the public if conducted by unsafe and incompetent practitioners. The Legislature finds further that it is difficult for the public to make an informed choice when selecting an osteopathic physician and that the consequences of a wrong decision could seriously harm the public health and safety. The primary legislative purpose in enacting this chapter is to ensure that every osteopathic physician practicing in this state meets minimum requirements for safe and effective practice. It is the legislative intent that osteopathic physicians who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. There was competent testimony that allopathic and osteopathic physicians may utilize acupuncture in the practice of their professions, as defined respectively at Sections 458.305(3) and 459.003(3), Florida Statutes. They are permitted to perform acupuncture, although their traditional course of professional education and training involves fewer (or no) hours of acupuncture education and training than are required under Chapter 457, Florida Statutes, the acupuncture practice Act. Presumably, that is because their respective professions and the Legislature have recognized that the training of allopaths and osteopaths encompasses the appropriate skills for acupuncture. However, if they perform acupuncture, they can only be disciplined under their respective practice Acts, Chapters 458 and 459, Florida Statutes. The Board of Acupuncture has no authority to discipline them. The record is silent as to whether or not Physicians Assistants, whether FAPA members or not, may legitimately perform acupuncture. To "practice medicine" or to "practice osteopathic medicine," as those terms have been respectively defined by Sections 458.305(3) and 459.003(3), Florida Statutes, do not render modern laboratory tests and imaging films unique to medical or osteopathic diagnosis. However, Harvey Kaltsas, a Florida-licensed acupuncturist and a member of the Board of Acupuncture, testified that "traditional Chinese medical concepts," and "modern oriental medical techniques" include gynecological and obstetric services, abortions, and cut-and-stitch surgery and that these services are performed by acupuncturists in China today. He further testified that the Board of Acupuncture believed that these tasks are "better handled" by allopathic physicians, and therefore the Board of Acupuncture has promulgated rules (most particularly the unchallenged rules addressing adjunctive therapies) which do not list these services. The Board believed that by not listing these services, it was prohibiting its licensees from performing them. The Board further asserts that its challenged rules only define "traditional Chinese medical concepts" and "modern oriental medical techniques" as used in Chapter 457, Florida Statutes, to include the use of laboratory tests and imaging findings and to clearly specify that "diagnostic techniques" for acupuncturists also include the use of modern laboratory test findings, and use of imaging films, reports, and test findings. There was competent testimony that modern laboratory Chinese medical tests on urine and feces evolved from ancient and traditional concepts and are regularly used in China and the orient by acupuncturists today. There was competent testimony that comparison of x-rays, at least for gross chest problems or for placement of acupuncture needles, is taught in an acupuncture college in Florida as part of its usual and required curriculum today. Allopaths and osteopaths use laboratory tests, imaging films, and reports thereon to reach an initial diagnosis and to test and revise that diagnosis through a course of treatment. Dr. West testified that he relies on his own "reading" of x-rays for his specialty of cardiology, while other allopaths may rely on a radiologist to read x-rays for them or may rely on a radiology report. Diagnosis is also a part of acupuncture. Acupuncturists want to use modern laboratory tests and imaging films to reach an initial diagnosis and to test that diagnosis through a course of treatment. They want to use laboratory tests and film imaging to properly direct their own initial treatment efforts, such as using urinalysis to eliminate a urinary tract infection before treating muscles and bones for a backache. They want to determine blood clotting speeds via an INR test on persons presenting with a prescriptive history of blood-thinner use, such as Coumadin, before using acupuncture needles. They want to be able to eliminate conditions they do not feel competent to treat, i.e. cancer, and to properly refer those patients for treatment by allopaths and osteopaths. Modern laboratory test results are variously formatted, sometimes as a report or value and result. X-rays are frequently the subject of a narrative report from a radiologist. Some modern imaging results are available directly to the public, like mobile TB screenings.
The Issue The issues in this case are whether Respondent, Robert Paul Catanese, D.C., violated Section 456.072(1)(c), Florida Statutes (2001)-(2006), and Section 560.413(1)(c), Florida Statutes (2001)-(2006), as alleged in the Administrative Complaint, filed by Petitioner, the Department of Health, on January 23, 2007, in DOH Case Number 2006-03224, and subsequently amended; and, if so, what disciplinary action should be taken against his license to practice chiropractic medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving chiropractic physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 460, Fla. Stat. (2006). Respondent, Robert Paul Catanese, D.C., is, and was at all times material to this matter, a chiropractic physician licensed to practice medicine in Florida pursuant to Chapter 460, Florida Statutes. The Indictment and Conviction. On or about February 2, 2006, Dr. Catanese was indicted in United States of America v. Joseph Sutera, Eric Ressner, Agustin Castellanos, Robert Catanese, and Stephanie Mirante, United States District Court, Southern District of Florida, Case No. 06-80020 CR, (hereinafter referred to as the "Indictment"). Dr. Catanese was charged with conspiracy to commit healthcare fraud in violation of 18 U.S.C. § 371. Generally, the indictment alleges that Dr. Catanese, between June 2001 and September 2005, transferred private health insurance information concerning his patients to a co- conspirator, Joseph Sutera, knowing that the information would be used to submit false and fraudulent claims for reimbursements for Ketamine and other prescription medications. As it relates to Dr. Catanese, the indictment was predicated upon the following allegations of “Background” fact: Defendant ROBERT CATANESE was a licensed doctor of chiropractic and the owner Catanese Chiropractic Center, a clinic through which he offered chiropractic services and through which he employed licensed physicians, including defendant AUGUSTIN CASTELLANOS, to write prescriptions and provide other medical services for his patients. Count One of the Indictment charges Dr. Catanese with conspiracy in violation of 18 U.S.C., § 347, alleging the following facts: . . . . 22. Defendant ROBERT CATANESE transferred the private health insurance information of his patients to defendant JOSEPH SUTERA knowing the information would be used to submit false and fraudulent prescription drug claims for Ketamine HCL and other prescription medications through The Medicine Shoppe to The Private Health Insurance Companies. . . . . 30. Defendant ROBERT CATANESE received approximately $31,000 in the form of checks and additional amounts in cash from defendant JOSEPH SUTERA and The Medicine Shoppe which represented proceeds from the payments received from false and fraudulent prescription drug claims. . . . . On or about December 23, 2005, Dr. Catanese signed a Plea Agreement in which he agreed to plead guilty to one count of conspiracy, “in violation of Title 18, United States Code, Section 371, an object of which was to commit health care fraud, in violation of Title 18, United States Code, Section 1347.” On or about July 24, 2006, consistent with his Plea Agreement, Dr. Catanese pled guilty to one count of conspiracy to commit health care fraud. During the plea hearing, the prosecutor described the factual basis for the plea as it relates to Dr. Catanese as follows: Yes, Your Honor, had this gone to trial the Government would prove beyond a reasonable doubt that in or between June 2001 and September 2005, Palm Beach Gardens, Florida, Palm Beach County within the Southern District of Florida and elsewhere the defendants Joseph Sutera, Robert Catanese, Agustin Castellanos and others, Eric Ressner and Stephanie Mirante knowingly conspired to commit health care fraud through false and fraudulent prescription drug claims for the purpose of enriching or otherwise benefiting themselves. The Government would prove that Joseph Sutera was a licensed pharmacist. As a licensed pharmacist, although he was licensed to dispense medication, he was not authorized to prescribe prescription medication including compounds, creams or other substances and was not authorized to dispense any prescription medications without a valid prescription from a licensed physician, prescription medications because of their toxicity and potential harmful effects deemed not for use to administer such drugs. Augustine Castellanos was a medical doctor specializing in neurology and sleep disorders. Dr. Catanese was a doctor of chiropractic, and owner of Catanese Chiropractic Center. He employed Agustin Castellanos. His job was to write prescriptions and provide medical services for his chiropractic patients. Mr. Sutera owned and operated a retail pharmacy called The Medicine Shoppe. It was a franchise which was located [at] 3365 Burns road in Palm Beach Gardens, Florida. Through this pharmacy, Mr. Sutera submitted thousands of insurance claims to approximately 200 private health insurance companies, and these claims were false in that they were for prescription medications that were not prescribed, not requested, and, in many cases, not delivered. Although these claims were for virtually every type medication that there is, the majority were for medications for which there was a high reimbursable from the insurance costs. These included things such as pain patches, a certain cancer drug called Levac, and claims for a drug called Ketamine. Ketamine is a Schedule III controlled substance controlled by the Drug Enforcement Administration. It is a prescription medication most often used as an anesthetic for children and as a battle field anesthetic in adults. It produces dissociative effect, for battle field purposes, when a limb is being taken off that is a good thing. Dissociative effect makes it popular for illicit purposes. It has become popular for a club drug, where it is used for purposes of getting high, so to speak. In addition to these uses, the drug recently has also been found to have some pain applications and Mr. Sutera as a pharmacist helped develop a cream that had as its main ingredient Ketamine. He distributed this cream under a number of different names, including formula 2 and Ketazone. What was attractive about this cream for insurance fraud purposes, was that the reimbursement for the jars of the cream or the tubes of the cream was rather high and could be as much as $1,000 per claim. In order to submit these claims, however, Mr. Sutera needed at least two things. He needed patient information. He needed names, addresses, and health insurance information for particular individuals, and he also needed the names of doctors who could be listed as the prescribing physicians. It was important that, particularly, the doctors have some knowledge of what was happening because the private health insurance companies would regularly audit the distribution of drugs from the pharmacy and would send out letters to the prescribing physicians asking if, in fact, they had prescribed certain medications. . . . . For purposes of getting the patient health information, Mr. Sutera did that in a number of different ways. . . . . . . . In addition to that, on at least three different occasions, Dr. Catanese who ran a chiropractic clinic as Your Honor is aware sold his patient list to Mr. Sutera. When I say he sold his patient list to Mr. Sutera, he sold all of the patient lists and, in exchange, Mr. Sutera agreed to give Dr. Catanese $100 per jar of the cream that was being prescribed by doctors through, Catanese’s clinic. Dr. Catanese was aware at the time that, in fact, these names were going to be used to submit false claims, as well as, for the submission of any claims for patients that really did get the cream. The quid pro quo, if you will, was at the time, Dr. Catanese had a drug problem as Your Honor is aware, and Mr. Sutera provided him with large amounts of Percocet. In addition to that, Mr. Sutera also provided Dr. Catanese with cash and with at least $31,000 in money in the form of checks, as well. . . . . The presiding judge specifically asked Dr. Catanese about his involvement in the acts described by the prosecutor: BY THE COURT: Q. Dr. Catanese, would you come to the lectern. Let me pose these questions to you. You had an opportunity to listen to what Ms. Bell had to say as pertains to your involvement. Do you agree you did and said the various things Ms. Bell suggested A. Yes, Your Honor. Q. Now, again, and I know you listened, and I am sure this is a matter of enormous concern to you, but this crime because the punishment is potentially longer than one year in jail, it is classified as a felony offense. If the court concludes that you really know what you are doing, that you are making a voluntary and informed decision, what I would do is accept your plea, you see, and adjudicate you to be guilty. The moment that happens, you are then classified as a convicted felon, and, of course, you will automatically lose those valuable civil rights, the right to vote, the right to possess a firearm or serve on a jury or run for public office. Do you understand you will lose those civil rights? A. Yes, sir. Q. Now, again, I would imagine this also would have an impact on your medical license. Do you understand that as well? A. Yes, sir. Q. Knowing and understanding these things, I want to indicate I certainly have had an opportunity to observe you and talk with you. You are a highly intelligent person. I am satisfied you are competent to make the decision that you are thinking about making. We’ve gone through the rights of trial by jury and all those other rights. We’ve gone through all of the provisions of the plea agreement. Is there anything out there I haven’t touched on, any questions or concerns you have that you wanted to raise? A. Not at this time, Your Honor. Is it your desire, then, to continue forward and enter the pleas we have been discussing? A. Yes, sir. THE COURT: Mr. Lubin, would you do that for the doctor? MR. LUBIN: Yes, Your Honor. On behalf of Robert Catanese, we would withdraw previously entered plea of not guilty and enter a plea of guilty to Count 1 which is the conspiracy count. THE COURT: Doctor, is that what you want to do? THE DEFENDANT: Yes, sir. THE COURT: 06-80020, United States versus Robert Catanese, it is the finding of the court that Dr. Catanese is fully competent and capable of entering an informed plea. I find his plea is a knowing and voluntary plea supported by an independent basis in fact containing each of the essential elements of this particular offense, therefore, I accept the doctor’s plea and I now adjudicate him to be guilty of the crime of having knowingly and willfully conspired to commit health care fraud in violation of Title 18, United States Code, Section 371. On November 7, 2006, United States District Judge Daniel T.K. Hurley adjudicated Dr. Catanese guilty of one count of conspiracy to commit health care fraud in violation of 18 U.S.C. § 371, a felony. Judge Hurley sentenced Dr. Catanese to serve 40 months imprisonment, followed by three years of supervised release, and required that he forfeit $31,000.00. The Relationship of Dr. Catanese's Convictions to the Practice of Medicine. In light of Dr. Catanese’s guilty plea to Count One of the indictment and his agreement with the prosecutor’s summary of the factual basis for his plea, it is concluded that Dr. Catanese engaged in the activities alleged in the indictment and summarized by the prosecutor for purposes of this proceeding. All of those activities related to the practice of chiropractic medicine. But for Dr. Catanese’s license to practice chiropractic medicine in Florida, Dr. Catanese would not have been able to commit the crime for which he was found guilty. It was his license to practice chiropractic medicine that facilitated his ability to open the Catanese Chiropractic Clinic and to obtain the private health insurance information of his patients which was provided to his co-conspirator for use in committing health care fraud. The crime for which Dr. Catanese was convicted is a crime that “directly relates to the practice of chiropractic medicine.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Chiropractic Medicine finding that Robert Paul Catanese, D.C., has violated Sections 456.072(1)(c), and 460.413(1)(c), Florida Statutes, as described in this Recommended Order; and imposing discipline consistent with the Board’s guidelines after giving Dr. Catanese an opportunity to address any additional mitigating factors which he wishes to present to the Board. DONE AND ENTERED this 19th day of December, 2007, in Tallahassee, Leon County, Florida. S 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 19th day of December, 2007. COPIES FURNISHED: Tobey Schultz, Esquire Office of General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Robert Paul Cantanese #75488-004 Federal Correctional Institution Miami Post Office Box 779800 Miami, Florida 33177 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Is proposed rule 64B9-4.009 of the Board of Nursing an invalid exercise of delegated legislative authority? Section 120.52(8), Florida Statutes.
Findings Of Fact The Stipulated Facts The Joint Practice Committee (the Committee) was created by Section 464.003(3)(c), Florida Statutes. The statute charges the Committee to approve those acts of medical diagnosis and treatment, prescription, and operation that may be performed by Advance Registered Nurse Practitioners (ARNPs) under the general supervision of a practitioner licensed under Chapters 458, 459 or 466, Florida Statutes, within the framework of standing protocols. On October 24, 1998, the Committee met to consider whether prescription of controlled substances was an appropriate medical act to be approved for ARNPs under proper protocol. [See minutes of meeting, Exhibit A.] The Committee was asked to review the report by the Statewide Task Force Committee (a separate committee) mandated by the 1996 legislature. Members of the Committee requested additional information before voting on the issues, including the following: A summary of votes taken at the Statewide Task Force meetings Testimony by physician members of the Task Force Committee on the safety of prescription of controlled substances by ARNPs. ARNPs protocols, including samples from practicing Florida ARNPs and protocol requirements from other states. National information on ARNP prescriptive practice for controlled substances, including the annual report from the Nurse Practitioner Journal, information on prescriptive practice from the National Council of State Boards of Nursing, and a state-by-state summary of prescriptive practices. Pharmacology syllabi from medical schools and ARNP programs. National Practitioner Data Bank information on safe practice. Copy of correspondence from the state pharmacy association. DEA Handbook for Mid-Level Providers. On December 8, 1998, the Committee met to consider the prescriptive authority and to review information requested at the October 24, 1998 meeting. [See Exhibit C, minutes of the December 8, 1998 meeting and Composite Exhibit D, materials provided to the Committee]. The Committee also took testimony from persons attending the Committee meeting. After review of the material and consideration of the testimony, the Committee voted as follows: To request the Department of Health to seek a written opinion from the Attorney General on the question: Can the prescribing of controlled substances by Nurse Practitioners under protocol be authorized by rule or must there be a legislative change. To authorize prescription of schedule II-V controlled substances by ARNPs under protocol. To require continuing education on prescribing, record-keeping, discouraging diversion of dangerous drugs approved by the Board of Nursing prior to prescribing controlled substances under protocol. On January 25, 1999, the Department of Health requested an opinion from the Attorney General on the following questions: Whether the Board may adopt a rule pursuant to section 464.003(3), Florida Statutes, authorizing the prescription of controlled substances by Advanced Registered Nurse Practitioners without conflicting with the prescribing requirements found in chapter 893, Florida Statutes. Whether it is necessary to obtain a legislative change to add Advanced Registered Nurse Practitioners to the list of 'practitioners' authorized to prescribe controlled substances under chapter 893, Florida Statutes, prior to adoption of a rule that would allow prescriptions of controlled substances by Advanced Registered Nurse Practitioners? At its regularly scheduled Board meeting on April 14, 1999, the Board voted to proceed with promulgation of a rule to implement the decision by the Committee. On May 17, 1999, the Attorney General's Office responded to the Department of Health by stating that a formal opinion would not be given. In Volume 25, Number 21 of the Florida Administrative Weekly, which was issued May 28, 1999, the Board published its notice of development of proposed rule 64B9-4.009. No rule development hearing was requested. The Board set a rule workshop for June 26, 1999, to discuss changes to Chapter 64B9-4, Florida Administrative Code. At the rule workshop, the Board received a letter dated June 14, 1999, from the FMA, presented to the Board, containing written objections to proposed rule 64B9-4.009. On June 25, 1999, the Secretary for the Department of Health advised the Board that the Department's General Counsel would be preparing a legal opinion on whether current law would allow the rule to be adopted. On July 23, 1999, General Counsel for the Department of Health issued his legal opinion to the Secretary that absent amendment to Chapter 893, Florida Statutes, neither the Joint Practice Committee nor the Board of Nursing can authorize ARNPs to prescribe controlled substances. In Volume 25, Number 29 of the Florida Administrative Weekly, which was issued July 23, 1999, the Board published its notice of proposed rule 64B9-4.009. The rule hearing was set for October 12, 1999. As voted by the Committee, the rule provides that an ARNPs' prescriptive authority includes the prescription of Schedule II, III, IV, and V controlled substances after appropriate continuing education. On August 17, 1999, the Joint Administrative Procedures Committee issued a letter to the attorney for the Board commenting that the proposed rule appears to contravene Section 893.05, Florida Statutes. On September 25, 1999, the Committee held a telephone conference. (See Exhibit F, Joint Committee Minutes, Conference call September 25, 1999.) The Committee declined to reconsider the decisions made at the December 1998 meeting. On October 12, 1999, a public hearing requested by FMA was held, at which the Board accepted written and oral testimony. (See Exhibit G, the transcript of the public hearing and Composite Exhibit H, the written comments provided on or before the date of the public hearing including a letter dated October 11, 1999, from the FMA and numerous specialty medical societies presenting written objections to the rule.) On December 8, 1999, the Board held an additional public hearing to consider the transcript of rule hearing on the proposed rule. The Board voted to proceed with promulgation of the proposed rule. Other Facts Agreed Upon The Board admits for purposes of consideration of this case that FMA et al. have standing to bring this rule challenge. The only state agency affected is the Board, 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The Board is responsible for the administration of Chapter 464, Florida Statutes, and has implemented its provisions, in part, through the adoption of rules set forth in Chapter 64B9, Florida Administrative Code. Facts Related to Standing The respective parties have not contested the veracity of the factual statements pled concerning standing of the respective parties. Therefore, it is accepted that the factual information concerning the organizations and their purposes, as pled, are accurate for fact-finding purposes. Those facts as pled are as follows: The only state agency affected is Respondent, State of Florida, Department of Health, Florida Board of Nursing ("the Board"), 4080 Woodcock Drive, Suite 202, Jacksonville, Florida 32207. The Department and the Board are responsible for the administration of Chapter 464, and have implemented its provisions in part through the adoption of rules set forth in Chapter 64B9, Florida Administrative Code. The address of the Florida Medical Association (FMA) is 113 East College Avenue, Tallahassee, Florida 32301. The FMA is organized and maintained for the benefit of the approximately 16,000 licensed Florida physicians who comprise its membership. One of the primary purposes of the FMA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Osteopathic Medical Association (FOMA) is 2007 Apalachee Parkway, Tallahassee, Florida. The FOMA is organized and maintained for the benefit of the approximately 1,800 licensed Florida osteopathic physicians who comprise its membership. One of the primary purposes of the FOMA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Academy of Family Physicians (FAFP) is 6720 Atlantic Boulevard, Jacksonville, Florida 32211. FAFP is organized and maintained for the benefit of the approximately 3,800 licensed Florida family physicians who comprise its membership. One of the primary purposes of the FAFP is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Chapter, American College of Physicians - American Society of Internal Medicine (FCACP-ASIM) is 2589 Park Street, Jacksonville, Florida 32204. FCACP-ASIM is organized and maintained for the benefit of the approximately 4,500 licensed Florida internists who comprise its membership. One of the primary purposes of the FCACP-ASIM is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Chapter, American College of Surgeons (FC-ACS) is 2589 Park Street, Jacksonville, Florida 32204. FC-ACS is organized and maintained for the benefit of the approximately l,000 licensed Florida surgeons who comprise its membership. One of the primary purposes of the FC-ACS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Surgical Society (FSS) is Post Office Box 536544, Orlando, Florida 32853. FSS is organized and maintained for the benefit of the approximately 200 licensed Florida surgeons who comprise its membership. One of the primary purposes of the FSS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Psychiatric Society (FPS) is 524 East Park Avenue, Tallahassee, Florida 32301. The FPS is organized and maintained for the benefit of the approximately 800 licensed Florida psychiatrists who comprise its membership. One of the primary purposes of the FPS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Academy of Pain Medicine (FAPM) is 335 Beard Street, Tallahassee, Florida 32303. The FAPM is organized and maintained for the benefit of the approximately 100 licensed Florida pain management physicians who comprise its membership. One of the primary purposes of the FAPM is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Society of Anesthesiologists (FSA) is 355 Beard Street, Tallahassee, Florida 32301. The FSA is organized and maintained for the benefit of the approximately 1,800 licensed Florida anesthesiologists who comprise its membership. One of the primary purposes of the FSA is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Society of Ophthalmology (FSO) is 1133 West Morse Boulevard, Suite 201, Winter Park, Florida 32789. The FSO is organized and maintained for the benefit of the approximately 400 licensed Florida ophthalmologists who comprise its membership. One of the primary purposes of the FPS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida Ob-Gyn Society (FOGS) is 355 Beard Street, Tallahassee, Florida 32303. The FOGS is organized and maintained for the benefit of the approximately 700 licensed Florida ob-gyns who comprise its membership. One of the primary purposes of the FOGS is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. The address of the Florida College of Emergency Physicians (FCEP) is 3717 South Conway Road, Orlando, Florida 32812. The FCEP is organized and maintained for the benefit of the approximately 800 licensed Florida emergency medicine physicians who comprise its membership. One of the primary purposes of the FCEP is to act on behalf of its members by representing their common interests before the various governmental entities of the State of Florida, including the Department of Health and its Boards. Intervenor, Florida Nurses Association (FNA), is a professional association located at 1235 East Concord Street, Orlando, Florida 32803-5403 representing over 7,000 Registered nurses (RNs) licensed by the State of Florida, of which more than 1,000 are certified as Advanced Registered Nurse Practitioners (ARNPs). FNA's members are directly regulated by the Respondent and substantially affected by proposed rule 64B9-4.009, which grants additional prescriptive authority to certain ARNPs under protocol with licensed physicians. On behalf of its members, FNA serves as a professional advocate before several governmental bodies, including the Board, and actively participated in support of the rule- making process which produced proposed rule 64B9-4009. Intervenor, Florida Association of Nurse Anesthetists, is a Florida nonprofit corporation and professional organization representing the legal, legislative, and professional practice interests of more than 1500 Certified Registered Nurse Anesthetists (CRNAs) practicing throughout Florida, all of whom are Advanced Registered Nurse Practitioners (ARNPs). The address of the Florida Association of Nurse Anesthetists is Post Office Box 150127, Altamonte Springs, Florida 32715-0127. CRNAs are expressly authorized by Florida law to order and administer anesthetic agents. Nearly all the anesthetic agents utilized by CRNAs are controlled substances. Under current law, Florida CRNAs cannot prescribe controlled substances, and are unable to obtain a registration number from the United States Drug Enforcement Administration (DEA). A DEA registration number is a prerequisite to prescribing controlled substances. The proposed rule would permit Florida CRNAs to prescribe controlled substances, and obtain a DEA registration number. The ability to prescribe controlled substances would have a direct impact on the practice of Florida CRNAs, in that it would allow CRNAs to prescribe anesthetic agents and post- operative medications for patients. The Proposed Rule 64B9-4.009 Functions of the Advanced Registered Nurse. All categories of Advanced Registered Nurse Practitioner may perform functions listed in Section 464.012(3), Florida Statutes. The scope of practice for all categories of ARNPs shall include those functions which the ARNP has been educated to perform including the monitoring and altering of drug therapies, and initiation of appropriate therapies, according to the established protocol and consistent with the practice settings. Advanced Registered Nurse Practitioners' prescriptive authority includes the prescription of Schedule II, III, IV and V controlled substances under appropriate protocol. Advanced Registered Nurse Practitioners may prescribe controlled substances only after the Advanced Registered Nurse Practitioner demonstrates completion of a Board-approved course in prescribing controlled substances. The Board approves 'Clinical, Legal, & Ethical Issues in Prescribing Abusable Drugs,' sponsored by the University of South Florida College of Medicine, Courses meeting the following criteria will also be approved: The course must consist of 22 contact hours of formal classroom instruction; The course must include the following education objectives; understand basic pharmacokinetic principles relating to pharmacological agents. describe basic pharmacology of drugs subject to abuse, including opiates, sedative-hypnotics, psychotropic agents, steroids and stimulants. assess the need for and proper use of drugs subject to abuse in managing both acute and/or chronic pain or mood disorders. achieve an improved understanding of drug abuse, drug dependence and addiction. identify the legal basis of ration and state drug control policies. discuss record keeping, enforcement agency practices and problem avoidance. Specific Authority 464.003, 464.006, 464.012, Florida Statutes. Law implemented 464.003, 464.012, Florida Statutes.
Findings Of Fact At all times relevant thereto, Respondent, Anthony S. Coco, held chiropractic license number 0001508 issued by Petitioner, Department of Professional Regulation, Board of Chiropractic Examiners. He is authorized to practice chiropractic in the State of Florida and presently maintains an office at 65 Royal Palm Beach Boulevard, Vero Beach, Florida. In response to a newspaper advertisement, Thomas A. Murphy visited the office of Respondent on May 13, 1980, regarding treatment of low back pain, impotence, nervousness, headaches and general aches and pains. Murphy had a 100 percent service-connected disability and was already being treated by a medical physician for other undisclosed ailments. Murphy was given a complete examination by Coco, including neurological and orthopedic tests. Additionally, eight x-rays were taken of the patient. As a general practice, Coco does not record negative (or normal) results on the patient's records. Because all tests except the x-rays were negative, the results of the examination were not reflected on Murphy's patient records. However, a detailed record of his findings were prepared in a request for authorization to provide chiropractic treatment forwarded to the Veteran's Administration (VA) on May 15, 1980. The request was later denied by the VA, and Murphy terminated his relationship with Respondent. Murphy became involved in a dispute with a secretary in Coco's office and filed a complaint against him with Petitioner. Petitioner then retained the services of an outside consultant, Dr. Fred C. Blumenfeld, to examine Murphy's patient file. Blumenfeld was initially given an incomplete file to examine, and based upon his initial review of the incomplete file, concluded that Respondent failed to exercise reasonable care in his treatment of Murphy. That precipitated the instant proceeding. Prior to the final hearing, Blumenfeld gained access to the entire file, and upon examining the same, reached an opinion that no "malpractice" had occurred. Although he testified that he would have marked the x-rays differently, and would have noted all negative findings on Murphy's patient chart, he did not otherwise criticize Coco's treatment of Murphy, and saw no basis for the issuance of an administrative complaint. Three other experts, including a nationally recognized professor of chiropractic and a former member of the Board of Chiropractic Examiners, each concluded that Coco's treatment of Murphy was proper and consistent with generally recognized standards of skill and care of chiropractors in the community. They also concluded that Coco's diagnosis of Murphy's ailments, as reflected on his patient notes and letter of May 15, were consistent with the x- rays taken of Murphy. Although Mr. Murphy appeared at the final hearing, he did so reluctantly and had no complaint regarding his examination and the diagnosis rendered by Coco.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED this 21st day of March, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 1983.
The Issue Whether Respondent is guilty of being in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 5, 1987, a Florida-licensed respiratory therapist. He holds license number CRT 830. Respondent has a lengthy history of drug abuse. In or about June of 1996, when he was employed as a blood gas laboratory technologist by Miami Children's Hospital (MCH) in Miami, Respondent submitted to a drug screen (performed at the request of MCH) and tested positive for cocaine. 2/ MCH referred Respondent to South Miami Hospital's (South Miami's) addiction treatment program, to which Respondent was admitted on June 6, 1996. Respondent successfully completed the South Miami program. He was discharged from the program on July 3, 1996. Respondent thereafter voluntarily enrolled in the state-approved program for impaired Florida health care practitioners offered by Physicians Recovery Network (PRN). PRN monitors the care, treatment, and evaluation of the impaired practitioners in its program. On July 11, 1996, Respondent entered into an "Advocacy Contract" with PRN, in which he agreed to, among other things, the following: "participate in a random urine drug and or blood screen program through [the] PRN office within twenty-four hours of notification"; "release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate [his] continuing progress in recovery"; "abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medication unless ordered by [his] primary physician, and when appropriate, in consultation with the Physicians Recovery Network"; "attend a self help group such as AA or NA"; "participate in continuing care group therapy"; "attend a 12- step program of recovering professionals"; "notify Physicians Recovery Network in the event of use of mood altering substances without a prescription"; and "be appropriately courteous and cooperative in all contacts with the PRN staff and representatives of PRN." The contract further provided that "[r]elapse will result in re-assessment and possible residential treatment." A "monitoring professional" or "facilitator" was appointed by PRN to assist in Respondent's recovery. PRN "facilitators" are responsible for providing therapy in a group setting to those under their charge and reporting to PRN any suspected failure on the part of a member of their group to adhere to the terms of the group member's "Advocacy Contract." (There are 33 "therapy groups" led by PRN "facilitators" throughout the State of Florida.) In March of 1997, Respondent's "facilitator" reported to PRN that Respondent had started using cocaine again (this time intravenously), resulting in his being fired from his position at Miami Children's Hospital. PRN responded to the facilitator's report by voiding Respondent's July 11, 1996, "Advocacy Contract." Respondent was thereafter involuntarily hospitalized pursuant to the Baker Act at the request of his family. Following his discharge from the hospital, Respondent was reported missing. In June of 1997, Respondent resurfaced and, pursuant to a court order, was admitted to Miami-Dade County's Treatment Alternative to Street Crime (TASC) program. In August of 1997, after Respondent completed Phases I and II of the TASC program, he was evaluated, at PRN's request, by Anthony P. Albanese, M.D., the Co-Director of the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach. Dr. Albanese determined that Respondent was suffering from "cocaine . . . dependence in early remission" and was "medically able to return to work." On September 10, 1997, Respondent entered into a second "Advocacy Contract" with PRN, which was similar to the first contract. In March of 1998, after receiving word that Respondent had again relapsed, as evidenced by the results of a urine screen, which revealed the presence of cocaine metabolites, PRN voided Respondent's second "Advocacy Contract." Subsequent analysis of Respondent's hair confirmed that he had been using cocaine. In July of 1998, Respondent was evaluated by David Myers, M.D., a PRN-approved evaluator and treatment provider. Dr. Myers diagnosed Respondent as having "cocaine dependency, continuous and severe," "marijuana dependency," and "nicotine dependency." On July 7, 1998, Respondent was admitted as a patient in the Tampa-based Healthcare Connection P.I.N. [Professionals in Need] Program (P.I.N. Program). Respondent was referred, through the P.I.N. Program, for treatment at the Salvation Army Adult Rehabilitation Center. On January 8, 1999, after receiving treatment at Salvation Army Adult Rehabilitation Center and successfully completing the P.I.N. Program, Respondent entered into a third "Advocacy Contract" with PRN, which was similar to the first two contracts. In early February of 1999, Respondent's "facilitator" reported that Respondent was not attending required group meetings and could not be located. Based upon the facilitator's report, PRN voided Respondent's third "Advocacy Contract." At no time subsequent to the voiding of his third "Advocacy Contract" has Respondent made contact with PRN. Because of the "continuous and severe" nature of his cocaine dependency, Respondent is presently unable to deliver respiratory care services with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order finding Respondent is in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and disciplining him therefor by revoking his license and fining him $500.00. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 10th day of January, 2001.
Findings Of Fact At all relevant times, the Respondent Joseph O. Smith, was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about March 3, 1982, an investigator for the Department of Professional Regulation, William Pawley, went to the chiropractic office of the Respondent Smith and took into his possession five (5) pieces of literature, each containing the name of the Respondent Smith, from the public waiting area of the office. The literature consisted of the following: A brochure entitled "Total Health Care Center", on which is printed the name Dr. Joseph O. Smith with no designation of the Center as a chiropractic or related facility or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 1) A flyer with the Respondent Smith's and Total Health Care Center's address captioned across the top, with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 2) A brochure entitled "What to Do in Case of an Automobile Accident" which has the Respondent's and Total Health Care Center's address and telephone number on the cover with no designation of the Center as a chiropractic or related institution or of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 3) A wallet-size card with the Republican Party's elephant symbol, the slogan "The Republican Party of Florida" and the Respondent's name without a designation of Respondent as a chiropractic physician. (Petitioner's Exhibit No. 4) A booklet entitled "Foundation of Man" authored by the Respondent Smith which designates him as a chiropractic physician. (Petitioner's Exhibit No. 5) The "Total Health Care Center" is located at 349 Southwest 79th Avenue, Fort Lauderdale, Florida, and is the chiropractic office of the Respondent Smith. The sign outside the office which is visible from the street clearly designates the office as being that of a chiropractic physician. The "Total Health Care Center" is primarily a chiropractic office which also offers related health care and medical services when appropriate. During the past three years, Dr. R. George Manieri, D.O., has examined patients at the Center and provided medical services including routine check-ups, vaginal examinations, breast examinations and pap smears. He also treated the Respondent's patients on a referral or part-time basis, by prescribing medication for birth control and other medical reasons. According to Dr. Manieri, the Respondent's position at the Center was both as a director and chiropractor since both medical and chiropractic services were available. Dr. Jeffrey Goldenberg, a licensed medical doctor specializing in obstetrics and gynecology, saw the Respondent's patients at the Center for birth control exams, breast checks and other medical reasons. The Respondent referred patients to Dr. Goldenberg, who saw patients either in the Center or at his private office. The Respondent Smith treated patients at the Center only for chiropractic problems. The Respondent Smith acted as the Director of the Center and has employed both chiropractic and medical physicians as part of his total or holistic philosophy of health care. Consumers who arrive at the Center are immediately placed on notice that the Center is essentially a chiropractic office by signs both outside and inside the establishment. The booklets, which were obtained by the Department from inside the Center and which failed to designate the Respondent or the Center by use of the term "D.C. or Chiropractic" (Petitioner's Exhibit Nos. 1, 2 & 3), were provided for general informational purposes and were not intended as chiropractic advertisements. Petitioner's Exhibits 1 and 3 are neither false nor misleading and contain general medical information concerning breast cancer, arthritis, burns, mouth-to-mouth resuscitation, heart attacks, CPR and aid for automobile accident victims. These pamphlets (Petitioner's Exhibit Nos. 1 & 3) were distributed for informational purposes only to patients once inside the office, who were already on notice that they were in the office of a chiropractor. When the Respondent Smith advertised himself as a chiropractor, he used the term chiropractor or D.C. after his name. However, when he advertised the Center, the Respondent would indicate that it provided both chiropractic and medical services as indicated by Petitioner's Exhibit No. 2. In addition to running the Center and practicing chiropractic, the Respondent also ran for the Republican nomination for Governor of Florida. His campaign office was located at the Center and, as demonstrated by Petitioner's Exhibit No. 4, at least one campaign document was kept at the Center which did not designate him as a chiropractic physician. Dr. Barry Adler, a licensed chiropractor and Secretary of Broward County Chiropractic Society and Co-Chairman of the Society's Ethics Committee, testified concerning the community standard in Broward County regarding the designation of chiropractors for advertising purposes. In Broward County, it is common for chiropractors to not use the term chiropractor or D.C. in their names when they are not advertising chiropractic services. For example, business cards and bank accounts of chiropractors are maintained without the designation, since such items are not generally considered as advertisements. Similarly, the Journal of the Florida Chiropractic Association, Inc., and Directors of the Broward County Chiropractic Society, lists their directors as "Drs." without the specific designation of chiropractor or D.C. following each name. Patients who visited the Total Health Care Center would not be misled by the lack of the designation "D.C." or "chiropractor" on Petitioner's Exhibit Nos. 1, 2 and 3, which were offered to prospective patients once inside the Center. The information both outside and inside the Center made it clear that the Respondent provided primarily chiropractic care while the Center offered both chiropractic and medical services. No evidence was presented on Count I of the Administrative Complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed against the Respondent Joseph O. Smith be dismissed. DONE and ORDERED this 2nd day of September, 1983, Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1983.
