Findings Of Fact The Parties The Petitioner is the state agency that administers the Florida Medicaid program, which includes pharmacies that participate in the program. The Petitioner's Office of Program Integrity is responsible for insuring that the goods and services billed to the Medicaid program are those that are actually provided to Medicaid recipients. Medicaid is a joint program, funded by the federal government and by the State of Florida, and is administered pursuant to both state and federal statutes and rules. All services or goods billed to the program must be necessary, Medicaid compensable, and must also have actually been provided to eligible recipients by providers prior to submitting claims. Any payment made by the Medicaid program for goods or services not actually provided to an eligible recipient is subject to recoupment by the Petitioner, and the provider is also subject to the imposition of administrative fines and exclusion from the program for a specified period of time. The Respondent is a community pharmacy located in a hispanic section of Miami, Florida, which has been owned and operated for the past six years by Frances Larin, a licensed pharmacist, who makes all drug purchases and does all Medicaid billings at the pharmacy herself. Most of Respondent's customers have limited financial resources and are Medicaid recipients. The Respondent has participated in the Medicaid program for approximately eight years, and has not previously been charged with overbilling the Medicaid program. The Respondent has cooperated fully with the Petitioner throughout these proceedings. Prior Review From February to April 1988, the Petitioner's Office of Program Integrity had a review performed of the Respondent's billings to Medicaid from March 1, 1987 to December 31, 1987. This review was conducted for the Petitioner by the Foundation for Health Care, Inc. (Foundation), contract auditors, and resulted in the determination that the Respondent had overbilled the Medicaid program for prescription drugs dispensed to program recipients during the review period. In performing this review, the Foundation used an across-the-board Medicaid percentage of 54% in determining the available units of the various drugs on hand for dispensing to Medicaid recipients. Based upon the Foundation's review, the Petitioner sought recoupment for overpayments in the amount of $28,649.99 by letter to the Respondent dated July 20, 1988, as well as an administrative fine of $7,162.49, and a three month suspension from the program. The Respondent timely sought a formal administrative hearing in which it disputed the results of the Foundation review. However, after the matter was referred to the Division of Administrative Hearings, the Petitioner withdrew its notice of overpayment and imposition of administrative sanctions, and thus, without a determination on the merits, the Division of Administrative Hearings file was closed and jurisdiction was relinquished to the Petitioner. Subsequently, the Petitioner entered a Final Order which provided that the Respondent would be re-audited. The Respondent timely sought judicial review of this Final Order in which it challenged that Petitioner's right to conduct a further review of the period March 1, 1987 to December 31, 1987. However, the District Court of Appeal of Florida, Third District, dismissed the Respondent's appeal, and the Petitioner proceeded with a further review. The KPMG Review (a) For purposes of its further review, the Petitioner employed the public accounting and management consulting firm of KPMG Peat Marwick which designed a statistically valid sampling methodology to determine the Respondent's Medicaid percentage for each drug, and also to perform a management review of the Respondent. It was established by competent substantial evidence in the record, and in particular by the expert testimony in statistics from Dr. Robert Ladner and Robert Peirce, that the KPMG methodology was statistically valid. The KPMG review was conducted during the latter half of 1989, and included developing a Medicaid percentage for individual drugs based upon an analysis of prescriptions for all drugs in question to determine the portion of each drug's total sales that went to Medicaid recipients, calculating the total units claimed for each drug for which the Respondent sought reimbursement during the audit period, and calculating the total units purchased by the Respondent for each drug claimed for reimbursement during the audit period. The Medicaid percentage of each drug was then applied to total purchases for each specific drug to determine the amount of each drug that was on hand at the Respondent's pharmacy for dispensing to Medicaid recipients. This number of available units was then compared with the total units claimed for reimbursement. Where the units claimed exceeded the units available for dispensing, a positive variance was noted, and this number of excess units claimed was then multiplied by the per unit reimbursement amount for that particular drug in order to obtain the amount of the apparent overbilling for that particular drug. Where the total units available for dispensing exceeded the total units claimed for a particular drug, a negative variance was noted. It was stipulated by the parties that negative variances did not indicate underpayments, and the evidence, including specifically the testimony and report of Dr. Victor Pestien, an expert in statistics, does not establish that such negative variances should be offset against the positive variances or that they in any way reduce the positive variances. This is the first instance in which this methodology has been utilized by the Petitioner in seeking a recoupment of an alleged Medicaid overpayment from a pharmacy, and this methodology was not set forth in any rule or regulation of the Petitioner that had been adopted at any time material hereto. Previous audits used an overall Medicaid percentage to calculate the portion of a pharmacy's business that was comprised of Medicaid recipients, and the quantity of drugs that were available to them. Using a drug specific Medicaid percentage, however, is a more accurate and conservative approach to determining overpayments than using a fixed percentage. Based upon the consideration of all evidence in the record, it is specifically found that the greater weight of evidence establishes that the methodology used by KPMG in this review for calculating Medicaid percentages was sound and reasonable, and in no way precluded the Respondent from presenting additional competent substantial evidence to the Petitioner, or at hearing, which would have established different Medicaid percentages for particular drugs. (a) The type of review conducted by KPMG is known as an aggregate analysis, a generally accepted type of statistical analysis, in which drugs that have been billed to and paid for by the Medicaid program are reviewed to determine whether the pharmacy under review purchased or otherwise acquired a sufficient quantity of drugs to justify its billings to Medicaid. Interchangeable brand-name drugs and generic equivalents were grouped together so that in conducting this review, whole equivalent groups of drugs were considered as one type of drug, regardless of differences in individual product names. To obtain a statistically random sample, prescriptions were put in numerical order and every fourth prescription for the review period was examined, and since prescriptions may be refilled for up to a year after they are originally filled, reviewers also examined every prescription for the year prior to the review period. Competent substantial evidence establishes that KPMG performed an appropriate and valid statistical analysis, and that they used an acceptable sampling methodology which produced a truly random result. The underlying assumption of this analysis is that before a drug can be claimed to have been dispensed and billed to Medicaid, the pharmacy under review must have that drug in its possession. (b) The approach taken by KPMG and the Petitioner was to be as conservative as possible in resolving all uncertainties and questions which arose during the course of this review in favor of the Respondent. KPMG did not conduct a financial audit of the Respondent, but did prepare a management report based upon its review of Respondent's operations during the audit period. Data used by KPMG in its methodology in calculating the amount paid by Medicaid to the Respondent, the unit price of drugs dispensed, and the quantity claimed by Respondent for payment by Medicaid, was derived from computer based information provided by the Petitioner's fiscal agent. During the period of time being reviewed in this case, Electronic Data Systems (EDS) was the Petitioner's fiscal agent, while Consultec was the Petitioner's fiscal agent during the period when the KPMG review was actually being performed. When Consultec was selected as the Petitioner's fiscal agent and replaced EDS on January 1, 1989, EDS turned over its computer records to the new agent by copying all of its magnetic, computer files, along with supporting microfiche documentation, which it then provided to Consultec under the supervision of the Petitioner. Upon receipt of these magnetic tapes, Consultec placed them in a controlled environment vault, and then later converted the information on these tapes to a new format used by Consultec. It was established by competent substantial evidence that in this process, no data was added, deleted or changed in any manner. The "units claimed" data was subsequently provided by computer download from the Consultec claims data base directly to the Petitioner's Office of Program Integrity. It was established by competent substantial evidence that data regarding claims which originated with EDS passed through Consultec to the Petitioner's Office of Program Integrity unchanged. Specific information regarding Respondent, including the claimed quantity of drugs dispensed and amounts paid, was accessed by staff in the Office of Program Integrity, randomly verified, and then made available to KPMG. Both Consultec and EDS are nationally recognized data processing and management companies. Competent substantial evidence established that the claims processing function utilized by the Petitioner in the Medicaid program during the period at issue was subject to several quality control checks to insure that claims were properly processed and appropriate payments were made. On occasion claim adjustments were made, but these were reasonable and for good cause, such as a substantiated underpayment. The computer hardware utilized in this process was reliable and properly maintained. In order to verify the data used by KPMG concerning the dollar amount of claims paid and the quantity of units of medication claimed, an "audit trail" was performed using 140 randomly selected sample claims by tracing each claim from its claim reference number to its associated remittance voucher and cancelled checks, where available. This audit trail verified that the data used as the basis for quantity claimed and total dollars paid was valid and reliable. The KPMG review was not limited to the top 100 drugs, by volume claimed, during the audit period, but included each drug dispensed by the Respondent to Medicaid recipients during the audit period. In its report dated November 20, 1989, KPMG calculated a total Medicaid overpayment to Respondent of $30,452.59, and based thereon, the Petitioner notified the Respondent that it was seeking recoupment of this amount, as well as an administrative fine of $2,000 and termination from the Medicaid program for at least two years. Subsequently, however, the Petitioner and KPMG reviewed and considered additional invoices documenting additional purchases of drugs in question by the Respondent during the audit period, and prepared a revised report dated August 30, 1990. Based upon this revised report, the Petitioner sought recoupment of a revised, reduced overpayment calculated to be $21,939.93, as well as a $2,000 administrative fine and a minimum two year termination from the program, and it was on this basis that this matter proceeded to final hearing. The Top 100 Drugs Subsequent to the final hearing, the Petitioner issued an amended recoupment letter dated October 17, 1990, which limited the recoupment it is seeking in this matter to the top 100 drugs, by dollar volume of claims, plus their generic equivalents. This resulted in the elimination of many individual drugs with relatively small overpayments from the list of overpayments, and left only five instances among these top 100 drugs where the difference between the quantity available, adjusted for standard error, and the quantity claimed is less than 100 units. In many instances the difference is well in excess of 1,000 units. The sanctions being sought in this amended recoupment letter further reduced the recoupment being sought to $12,643.11, reduced the administrative fine to $1,400, and reduced the period of exclusion from the program that is being sought to 16 months. However, due to an error in calculating the top 100 drugs and equivalents, the Petitioner issued a second amended recoupment letter dated October 26, 1990, further reducing the administrative fine sought to $1,200 and reducing the period of exclusion to 14 months. Inventory Analysis In performing its review, KPMG obtained information concerning the quantities of drugs purchased during the review period by the Respondent directly from the pharmacy's wholesalers and from a review of invoices retained by the Respondent for a period that included one month prior to the review period through one month after the review period (February 1, 1987, to January 31, 1988). The effect of seasonal variations in pharmacy sales and ordering patterns was also taken into account, and balanced, by extending this period to a full twelve months. All documentation concerning drug acquisitions was requested from Respondent, and the information received and considered by KPMG and the Petitioner was checked for reasonableness by a consultant pharmacist and cross validated by two reviewers. It was stipulated by the parties that the Respondent's main wholesaler, Gulf Distribution, Inc., had and maintained accurate information and records regarding its sales to the Respondent, and that it properly transferred that information to computer disks which were provided to KPMG. Subsequent thereto, additional invoices were discovered and were also made available to KPMG. The Petitioner stipulated that these additional invoices from Gulf did not reduce the number of drug units purchased by, and invoiced to, Respondent. Pharmacies in Florida which choose to participate in the Medicaid program are required to maintain complete and accurate patient and fiscal records which fully substantiate the extent of services rendered and billings made for a period of five years from the date of billing or service, and are also required to retain all invoices from wholesalers, or from the transfer or receipt of drugs through barter or exchange, for a period of five years. (a) Actual beginning and ending inventories of the top 100 drugs reviewed by KPMG for which the Petitioner now seeks recoupment in the amount of $12,643.11 were not determined. Rather, an estimate of inventory on hand was derived by counting invoices of all drug acquisitions through purchase, transfer or exchange made by the Respondent during the review period, as well as invoices of acquisitions made one month prior to and one month after the review period. Additionally, all documentation provided by the Respondent of bulk, or large, acquisitions made during or prior to the review period was also considered and included in the Petitioner's estimate of inventory. It was established by competent substantial evidence that pharmacies generally keep a drug inventory consisting of a two to two-and-a-half week supply on hand, and acquire drugs in anticipation of future sales rather than as a replacement of inventory depletion from past sales. Therefore, a basic assumption of the KPMG methodology, relied upon and accepted by the Petitioner, that Respondent had only those drugs available for dispensing which were obtained by invoiced purchase from wholesalers, or through transfer or exchange, between February 1, 1987 and January 31, 1988, as well as documented invoiced bulk purchases prior to this time period, is reasonable. At hearing, the Respondent established that a significant quantity of nine specific drugs were purchased during the review period from suppliers other than Gulf that were not considered by KPMG. These drugs include Xanax (.5 mg.), Inderal (10 mg.), Tagamet (300 mg.), Nitrostat (.4 mg.), Trental (400 mg.), Motrin (400 mg.), Motrin (600 mg.), Quinamm (260 mg.), and Quinidine Sulfate (200 mg.). It is, therefore, found that the overpayment of $2,902.19 calculated by KPMG and relied upon by the Petitioner for these particular drugs has not been supported by competent substantial evidence. Frances Larin, Respondent's owner and operator, testified that she did not follow the generally accepted practice of retaining only a two to two-and-a- half week supply of drugs on hand. Rather, she testified that for a significant number of the top 100 drugs at issue in this proceeding, she would purchase large quantites in bulk, and was thus able to draw down on these inventories without making additional purchases of particular drugs for over a year. The Respondent sought to establish that due to very large beginning inventories of particular drugs at issue, it was able to legitimately dispense more units during the review period than it purchased during the same time. However, the Respondent did not produce evidence in support of its position, such as invoices for bulk purchases which KPMG or the Petitioner did not consider, or complete records of bartering or transfers which had not been considered, and which would have supported its claim of a significantly larger beginning inventory for these particular drugs than would be the generally accepted practice. To the contrary, competent substantial evidence in the record, as well as the demeanor of Larin while testifying, establishes that Respondent's claim is unreasonable and lacks credibility. The deposition testimony of JoAnn Padell is outweighed by the testimony of Deborah Launer, Susan McCleod, and Robert Peirce. A review of the Respondent's purchasing patterns clearly shows that Respondent generally and routinely kept low inventories of drugs on hand, placing daily orders with Gulf to obtain drugs on an as-needed basis. Recoupment Based upon the foregoing, it is found that competent substantial evidence establishes that the Respondent overbilled the Medicaid program during the review period at issue in this case in the amount of $9,740.92 ($12,643.11 claimed in the second amended recoupment letter minus the $2,902.19 claim associated with the nine specific drugs for which significant purchases were omitted from the KPMG review, as found above at Finding 13). Petitioner is authorized to recoup the established overpayment of $9,740.92 from the Respondent. Sanctions (a) In determining the sanctions stated in the second amended recoupment letter which Petitioner seeks to impose upon the Respondent, the Petitioner considered the provisions of Section 409.266(13), Florida Statutes, as well as the impact which sanctioning this Medicaid provider would have upon Medicaid recipients. Competent substantial evidence establishes that there are eight pharmacies which accept Medicaid within a one mile radius from the Respondent's location, and twenty-six such pharmacies within a two mile radius. Medicaid recipients are issued new cards each month and may transfer pharmacies at the beginning of each month. Therefore, it is found that Medicaid recipients would not be substantially affected by the imposition of sanctions upon the Respondent. The parties stipulated that the sanction matrix set forth in Rule10C- 7.063, Florida Administrative Code, was not applied by the Petitioner against the Respondent in this case because it was not in effect at the time of this review. The sanctions which the Petitioner seeks to impose against the Respondent, therefore, are based upon non-rule policy which must be explicated in this proceeding. In seeking to explicate its non-rule policy upon which the sanctions set forth in the second amended recoupment letter are based, the Petitioner established that it was concerned that sanctions imposed in prior cases, as well as in the original recoupment letter which had been sent to the Respondent in this case, had been too lenient in view of the seriousness of Medicaid violations. The Petitioner developed its non-rule sanctions policy after the KPMG review had been completed, and based its proposal upon the maximum sanctions set forth in state and federal statutes and rules. Specifically, Section 409.266(12), Florida Statutes, provides for a maximum fine of $10,000; the maximum exclusion period applied in previous cases by the Office of Program Integrity is ten years, and the minimum exclusionary period imposed by the federal government has been five years for the failure to supply payment information. At hearing, the Petitioner explained that it first determined the percent of Respondent's total Medicaid payments that the overpayment represented, and then applied that percentage to these maximum sanctions allowed under law and existing policy. The overpayment of $12,643.11 claimed by the Petitioner in its second amended letter of recoupment is 12% of the total payment of $100,397.88 made by the Petitioner to Respondent for the review period, and 12% of the maximum fine and exclusion period is $1,200 and 14 months, respectively. While the Petitioner explained the manner by which this exclusionary period and fine were calculated, it did not explicate its non-rule policy by establishing a reasonable, rational basis for applying the percentage of Medicaid overbillings to the maximum fine and exclusionary period. Certainly, the arithmetic calculation used to arrive at these proposed sanctions is clear, but there was no explication through competent substantial evidence which would establish that there is a basis in fact or logic for this calculation. Therefore, it is found that the Petitioner's non-rule policy used to propose these sanctions is arbitrary and capricious. Due to the lack of any evidentiary basis in the record which would support the imposition of the sanctions of an administrative fine or a period of exclusion from the Medicaid program, the Petitioner is not authorized to impose sanctions on the Respondent.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order which requires that Respondent to repay the Petitioner for Medicaid overbillings in the amount of $9,704.92, but which does not impose sanctions consisting of either an administrative fine or period of exclusion. DONE AND ENTERED this 18th day of January, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1991. APPENDIX TO RECOMMENDED ORDER Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 1. Adopted in Finding 4. Adopted in Findings 4 and 5. 7-10. Adopted in Findings 6 and 7, but otherwise Rejected as unnecessary. 11-17. Rejected as unnecessary. 18-20. Adopted in Findings 6 and 7. 21-24. Adopted in Finding 12. 25. Adopted in Finding 2. 26-28. This is a conclusion of law and not a proposed finding. 29-30. Adopted in Finding 8. 31-32. Adopted in Findings 7 and 10. Adopted in Finding 6. Rejected as unnecessary. 35-39. Adopted in Finding 7. 40-47. Adopted in Finding 7, but otherwise Rejected as unnecessary. 48. Rejected as unnecessary and immaterial 49-51. Adopted in Finding 7, but otherwise Rejected as unnecessary. 52-53. Rejected as unnecessary. 54-63. Adopted in Finding 12, but otherwise Rejected as unnecessary. Adopted in Finding 8. Adopted in Finding 9. 66-67. Adopted in Finding 8, but otherwise Rejected as unnecessary. 68-69. Adopted in Finding 9. 70-78. Adopted in Finding 8, but otherwise Rejected as unnecessary. 79-82. Adopted in Finding 8. 83-85. Rejected as unnecessary. 86-93. Adopted in Finding 13, but otherwise Rejected as unnecessary. 94-97. Adopted in Finding 14, but otherwise Rejected as unnecessary. 98-103. Adopted in Finding 14. 104-105 Rejected as unnecessary and immaterial. 106-107 Adopted in Finding 12. 108. Adopted in Findings 12 and 13. 109-112 Rejected as unnecessary and immaterial. 113-115 Adopted in Finding 13, but otherwise Rejected as immaterial. This is a conclusion of law and not a proposed finding. Adopted in Finding 11. 118-119 Rejected as unnecessary and immaterial 120-122 Adopted in Finding 11. Rejected as unnecessary. Adopted in Finding 6. 125-128 Rejected as unnecessary. 129. Adopted in Finding 6. 130-132 Adopted in Finding 9. Adopted in Finding 11. This is a conclusion of law and not a proposed finding. 135-147 Adopted in Finding 16, but otherwise Rejected as unnecessary and immaterial. 148. Adopted in Finding 11. 149-150 Adopted in Finding 16, but otherwise Rejected as unnecessary. 151-152 Rejected as unnecessary. 153. Rejected as unnecessary and cumulative. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 4. 2-3. Adopted in Finding 5, but otherwise Rejected as unnecessary and not based on competent substantial evidence. 4-5. Adopted in Findings 3, 6 and 7. 6-7. Adopted in Finding 10, but otherwise Rejected as unnecessary. 8-9. Adopted in Finding 11. 10-11. Adopted in Finding 3, but otherwise Rejected as unnecessary. Adopted in Finding 6. Rejected as immaterial and unnecessary. 14-15. Rejected as argument on the evidence rather than a proposed finding, and otherwise as not based on competent substantial evidence. Adopted in Finding 7, but otherwise Rejected as argument on the evidence rather than a proposed finding. Rejected as repetitive and otherwise as immaterial. Adopted in Finding 13, but Rejected in Finding 14 and otherwise as argument on the evidence rather than a proposed finding and as not based on competent substantial evidence. Rejected in Finding 14, as immaterial, speculative, and as not based on competent substantial evidence. 20-21. Rejected in Finding 6, as immaterial, and as not based on competent substantial evidence. 22-23. Rejected in Findings 13 and 14, and otherwise as immaterial and not based on competent substantial evidence. Rejected as repetitive and otherwise as argument on the evidence rather than a proposed finding. Rejected in Findings 13 and 14. 26-30. Rejected as a statement of the Respondent's position and not a proposed finding, as speculative and contrary to competent substantial evidence, and as totally without citation to authority in the record as required by Rule 22I-6.031(3), Florida Administrative Code. 31-35. Rejected in Finding 6, and as not based on competent substantial evidence and as unnecessary. 36-38. Adopted in Findings 12 and 13. 39-41. Adopted in Finding 8. 42. Rejected as immaterial. 43-44. Rejected in Finding 9. 45. Rejected as simply a summation of testimony and not a proposed finding. 46-48. Rejected in Finding 9, and otherwise as immaterial and not based on competent substantial evidence. 49-50. Rejected as unnecessary and immaterial. 51. Adopted in Finding 16, but otherwise Rejected as immaterial. 52-53. Rejected as unnecessary and immaterial. Rejected as not based on competent substantial evidence. Adopted and Rejected in part in Finding 16. 56-57. Adopted in Finding 16. 58-61. Rejected as immaterial and irrelevant. 62. Adopted and Rejected in part in Finding 15. COPIES FURNISHED: David G. Pius, Esquire Building Six, Room 233 1317 Winewood Boulevard Tallahassee, FL 32399-0700 James J. Breen, Esquire Michael P. Scian, Esquire 900 Sun Bank Building 777 Brickell Avenue Miami, FL 33131 R. S. Power, Agency Clerk 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, Acting General Counsel 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Robert B. Williams, Acting Secretary 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issues in this case are whether Respondent violated section 464.018(1)(h), Florida Statutes (2009),1/ as implemented by Florida Administrative Code Rule 64B9-8.005(2); whether Respondent violated section 456.072(1)(m), Florida Statutes; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of nursing pursuant to section 20.43 and chapters 456 and 464. At all times material to the Complaint, Respondent was licensed in Florida as a registered nurse, holding license number RN 9190652. No evidence was presented of any prior disciplinary actions against Respondent's license. Respondent was employed by Tampa Bay Surgery Center (TBSC) between February 2007 and September 2008. TBSC is an ambulatory surgical center that provides elective surgery to persons who can be safely cared for on an outpatient basis. This means that the center restricts itself to the type of procedures and the type of patients for whom it is reasonable to expect recovery and discharge on the same day of surgery; overnight stays are not permitted.4/ TBSC operates two locations in Tampa: one site is referred to as the Dale Mabry, or uptown, location; the other site is known as the Martin Luther King (MLK), or midtown, location. The MLK site is in a high-traffic area, both outside and in the eight-story medical arts building where TBSC is located. Adjacent to the building is a covered parking area with restricted vehicular access, known as the "physician's parking lot," and used by physicians and others with security cards needed to lift the gate to drive in. Next to the physician's parking lot is an uncovered, unrestricted parking area used by employees and visitors going to the medical arts building. Persons parking in the unrestricted lot can walk through the physician's parking lot on their way to the medical arts building; the security gate does not impede pedestrian traffic. For the one and one-half years that Respondent was employed by TBSC, she worked as a perioperative nurse, at both the MLK and Dale Mabry locations. As a perioperative nurse, Respondent was involved in patient care from admission through recovery, including serving as circulating nurse in the operating rooms. Respondent's supervisor was Rick Kanahan, R.N. Mr. Kanahan was (and still is) the operating room supervisor and surgical director at both TBSC locations. Continuing up the chain of command, TBSC's executive director was (and still is) Jay Rosen. Mr. Kanahan and Mr. or Dr. Rosen5/ collectively are considered the TBSC "management," as Respondent acknowledged. Respondent received a good evaluation at TBSC in her single annual evaluation by Mr. Kanahan. Respondent resigned from TBSC in September 2008 to advance her career by becoming the administrator of All Saints Surgery Center (All Saints), a small ambulatory surgical center in Brooksville, Florida. By all accounts, Respondent left on good terms with TBSC management. After her departure, Respondent kept in contact with some TBSC staff with whom she remained friends and continued to socialize. Respondent's good relations with TBSC management apparently did not last; they soured to some extent because Respondent hired away several staff persons from TBSC, enticing them with better pay. Although the timing and number of these hires were not entirely clear, apparently two "front office" employees who worked at the Dale Mabry TBSC were hired by Respondent to begin work at All Saints on November 9, 2009. These two employees--Shannon Combast and Heather Barker--served as receptionists and performed other front office duties such as scheduling, accounts payable, and insurance verification. Soon after these two former TBSC employees started at All Saints, an incident took place that gave rise to the charges against Respondent in this case. At issue are the actions taken by Respondent on November 12, 2009, in an attempt to cover All Saints' needs for propofol. Propofol is a hypnotic medication that is used for sedation and for induction and maintenance of general anesthesia. It is not a controlled substance (i.e., it is not a scheduled narcotic pursuant to chapter 893, Florida Statutes), but it is a drug that can be dangerous, even life-threatening, if not used properly by a trained professional. Propofol is the preferred hypnotic agent for general anesthesia in an outpatient setting, because it is fast-acting and quickly clears out of the patient's system, which facilitates same-day recovery and discharge required for outpatients. While there are acceptable alternatives that can be used in lieu of propofol and that were available in the fall of 2009, those alternatives are considered "less than ideal" for outpatient settings. Shortly after the highly-publicized death of Michael Jackson involving propofol, in the fall of 2009, there was a national shortage of propofol. Two manufacturers halted distribution in the United States, leaving only one active U.S. manufacturer; and there was a recall of some already- distributed propofol because of particulate contamination. Respondent described in detail how this affected All Saints in a written statement to Petitioner's investigator several months later, as follows: All Saints' entire propofol inventory was recalled in late October 2009. A local hospital had loaned All Saints 25 bottles of propofol at that time (in late October 2009), but that had also run out. An order for propofol, among other items, had been placed with a vendor on November 10, 2009, for overnight delivery to arrive on November 11, 2009, but the vendor notified All Saints that the propofol was not in the package and had to be back-ordered. Respondent's final hearing testimony was somewhat different than her written statement from two years earlier. Respondent testified that the propofol order was made on November 11, 2009, for overnight delivery to arrive on November 12, 2009. According to Respondent, when she arrived on the morning of November 12, 2009, at her regular time of between 6:15 a.m. and 7:00 a.m., staff informed her that the vendor had called to advise that the overnight package in transit would not contain the propofol they were expecting. Respondent testified that she had not made any attempt before November 12, 2009, to obtain propofol from other sources, because she had ordered it from the regular All Saints vendor and had been assured that an overnight delivery was on its way and that the package would arrive that day.6/ Respondent described her immediate flurry of activity on November 12, 2009, focused on securing propofol. First, Respondent called the medical director, Dr. Lombardi, and they agreed to each contact other facilities to try to borrow some more propofol. Dr. Lombardi confirmed in a general way that he and Respondent discussed All Saints' dwindling supply of propofol and the need to secure more propofol from another vendor or borrow some from another facility, although he did not say when this discussion occurred. Dr. Lombardi testified that he called one facility in an unsuccessful attempt to borrow propofol. Respondent testified that after talking to Dr. Lombardi, she closed herself in her office so she would not be distracted or interrupted with the normal business of the center, as she otherwise would be, as administrator in charge of day-to-day operations. Respondent called a total of seven hospitals and surgery centers. Respondent said that in making these calls, she would ask to speak with a professional contact whom she knew, or she would ask to be transferred to the pharmacy; she would then ask whether the facility was experiencing a propofol shortage. Inexplicably, Respondent claimed that she only asked for information and did not ask whether All Saints could borrow propofol, even though that was the apparent purpose of all of these calls. Respondent testified that the last two places she called were the two TBSC locations. First, she called the Dale Mabry location. Respondent's version of this call was as follows: she asked to speak to a friend who was a surgical technician and asked her if she knew whether they were experiencing a shortage; the friend said she did not know but would transfer Respondent to a recovery room nurse, Amanda, who was near the pharmacy. Respondent then spoke with Amanda, who was not sure if there was a shortage and was too busy to check then. Amanda texted Respondent several hours later to say they were experiencing a slight shortage. Respondent testified emphatically that she did not ask anyone at the Dale Mabry TBSC for propofol; she just wanted information. Caroline Piemonte, the surgical technician with whom Respondent first spoke, described the conversation differently. Ms. Piemonte testified that Respondent "asked me if she could borrow some propofol." Ms. Piemonte told Respondent she would have to ask the pharmacy nurse, Kathy Wigham, and offered to transfer her. Respondent said, "no, please don't" and asked to speak to Amanda instead. Ms. Piemonte got the impression that Respondent did not want to speak to the pharmacy nurse because Respondent knew the pharmacy nurse would tell her she could not get any propofol. Respondent acknowledged that she did not speak with the pharmacy nurse, but claimed that was because she only wanted information about whether the site was experiencing a shortage. Ms. Piemonte was a very credible witness. Her version of Respondent's Dale Mabry contact on the morning of November 12, 2009, is credited. Respondent's claim that she was only seeking information and never asked for propofol is inconsistent with her claim of an urgent need to obtain propofol. Moreover, Respondent's explanation that she did not want to speak to the pharmacy nurse because she only wanted information about the supply of propofol makes no sense; surely the pharmacy nurse would have been a better source of the information Respondent said she was seeking, than the recovery room nurse who admittedly did not know and was too busy to find out then. Respondent testified that after calling the Dale Mabry TBSC, she then called TBSC's MLK location. She asked to speak to Robert Degueldre, who was a circulating nurse working in the operating rooms. Respondent claimed that she believed Mr. Degueldre was also the pharmacy nurse. Respondent testified that after she asked for Mr. Degueldre by name, the receptionist told her that she might have to wait on hold awhile, at which point Respondent asked the receptionist who the pharmacy nurse was. According to Respondent, the receptionist told her that Mr. Degueldre was the pharmacy nurse. Respondent's testimony that she asked, and was told by the receptionist, that Mr. Degueldre was the pharmacy nurse at TBSC's MLK location was not credible. Respondent admitted that she knew who the pharmacy nurses were at each TBSC site when she worked there one year earlier and that the pharmacy nurse at the MLK site was Brenda Bowman. The consistent testimony by other witnesses was that staff at each TBSC site knew who the pharmacy nurses were at the two TBSC sites, and at the MLK site, the pharmacy nurse was Brenda Bowman--the same person Respondent knew to be the pharmacy nurse when Respondent worked there. There was no credible evidence that the MLK receptionist did not know who the pharmacy nurse was or would have volunteered the wrong information. Instead, the credible evidence was that Respondent, after taking such pains to avoid speaking to the Dale Mabry pharmacy nurse, did not want to speak to the MLK pharmacy nurse. She wanted to speak to Mr. Degueldre, because she thought she might be able to persuade him to help her.7/ When Mr. Degueldre came to the phone, Respondent asked if she could borrow propofol.8/ At first Mr. Degueldre said no, because he had never done that before. Respondent pressed her request, telling him that she had tried to obtain it elsewhere, but others were also experiencing shortages, and the All Saints patients needed propofol. Respondent told Mr. Degueldre that she only needed to borrow some until All Saints received its shipment, which she assured Mr. Degueldre would be in just a few days. At that point, Mr. Degueldre agreed to check on the level of their supply and call her back. While waiting to hear back from Mr. Degueldre, Respondent sent a text message to her friend Oona Hastings, who was a surgical technician for TBSC. That morning, Ms. Hastings was working at the MLK location, assigned to an operating room in which a physician was performing a prostate seed. Mr. Degueldre was the circulating nurse assigned to the same operating room. Respondent's text message to Ms. Hastings at 7:31 a.m., stated: I need ur help. Call me asap. Need propofol bad! Respondent claimed that the purpose of this text message was only to seek information about the shortage; Respondent claimed that she did not expect Ms. Hastings to be able to help get the propofol that Respondent said she so badly needed. Respondent's claim is not credible, in the face of her own choice of words. Mr. Degueldre spoke with Respondent right after she sent the 7:31 a.m. text message to Ms. Hastings. He reported that he found an ample amount of propofol, and he agreed to loan her propofol. Respondent asked him not to tell management--Rick Kanahan or Jay Rosen. Respondent suggested there was no need to tell management, because the All Saints' shipment of propofol would be arriving in the next few days, and she would immediately return the borrowed amount of propofol. Respondent asked Mr. Degueldre to sneak the propofol out of the facility and leave it for her to pick up. Mr. Degueldre agreed that it would not be a good idea for TBSC management to find out and that Respondent should not be seen coming into the facility to pick up the drugs. As Mr. Degueldre put it bluntly: I can assure you, if she asked Rick Kanahan or Dr. Rosen, she would not have gotten the propofol. Respondent knew this. Therefore, Mr. Degueldre and Respondent planned for Mr. Degueldre to sneak the propofol out of the facility for Respondent without management finding out that he was doing so.9/ They agreed that Mr. Degueldre would leave the propofol in the unlocked bed of his pick-up truck, which was parked in the covered physician's parking lot, and Respondent would drive from Brooksville to get the propofol from Mr. Degueldre's truck. Respondent sent a second text message to Ms. Hastings at 7:33 a.m., apparently right after developing the plan with Mr. Degueldre. The second text message was as follows: Robert [Degueldre] is trying to sneak me some propofol. Distract peeps as needed. Lol! At 8:00 a.m., Ms. Hastings sent the following reply text message to Respondent: [H]e's leaving the room a lot so he must be doing it now. I don't c rick or rosen. Robert might not help you if he knows that I know. He doesn't like me. Let me know if you need me. Noteworthy in the 8:00 a.m. message from Ms. Hastings is that after being asked by Respondent to "distract the peeps" while Mr. Degueldre tried to "sneak" some propofol out to Respondent, Ms. Hastings let Respondent know that she did not see Rick Kanahan or Jay Rosen. This confirms that the TBSC management--Kanahan and Rosen--would be the "peeps" whom Respondent would most want to ensure were distracted. Respondent would have been reasonably concerned that Rick Kanahan could even walk into the operating room; the unrefuted testimony of Mr. Degueldre was that Mr. Kanahan was known to pop in unexpectedly in the operating rooms. Respondent answered Ms. Hastings with the following text message at 8:02 a.m.: K. He got it done. Coming to get it. Top secret! Lol! Yeah, I guess don't let him know u know. Thx sista! Ms. Hastings testified that she received the text messages from Respondent while Ms. Hastings was in the operating room, scrubbed and sterile. For the prostate seed case being done that morning, Ms. Hastings explained that her role was to prepare the room before the procedure, then the circulating nurse (Mr. Degueldre) prepared the patient, and then she draped the patient. At that point, the doctor took over; her role as surgical technician was essentially done. While normally she would leave the room, that morning she stayed in the operating room until Mr. Degueldre came back, because he asked her to stay. Although cell phones are not permitted in the operating rooms, Ms. Hastings admitted that hers was in her purse in a cabinet, with the ringer switched to the vibrate setting, while she was working in the operating room. At some point, Sam Colon, the materials manager, came into the room. Ms. Hastings asked Mr. Colon to retrieve her phone and hold it so she could check for messages, because she was expecting a message from her boyfriend. When Mr. Colon did so, the 7:30 a.m. and 7:33 a.m. messages from Respondent were there, and she and Mr. Colon both read them. Mr. Colon corroborated Ms. Hastings' testimony. It is not clear how Ms. Hastings was able to compose the text message she sent to Respondent at 8:00 a.m., while in the operating room, sterile, waiting for Mr. Degueldre to come back. Possibly Ms. Hastings removed her sterile gloves or otherwise breached her sterile state to do so, despite her apparent care in having someone else retrieve her phone. Possibly the procedure was done by then, and there was no longer a need to remain sterile. While some details of what transpired that morning were not fully explained, it is unnecessary to dwell on them; they are immaterial in that they do not change the nature of Respondent's actions. What is significant is the choice of words themselves in the messages exchanged between Ms. Hastings and Respondent that morning.10/ Ms. Hastings and Mr. Colon testified that they discussed the fact that Ms. Hastings needed to tell Mr. Kanahan about Respondent's text messages. Neither Ms. Hastings nor Mr. Colon took any immediate action to try to stop Mr. Degueldre or inform management. Mr. Colon testified that he remained at the MLK site and that Mr. Kanahan was at the Dale Mabry site that day. Ms. Hastings explained that she left after the prostate seed case to go to the Dale Mabry facility. Mr. Colon thought Ms. Hastings would be able to tell Mr. Kanahan there, but Ms. Hastings testified that she was very busy at Dale Mabry, working late that day, and did not get a chance to speak to Mr. Kanahan. Meanwhile, the propofol removal plan was implemented. Mr. Degueldre put 25 bottles of propofol in a small cardboard box, smaller than a shoebox. He did not document the removal of the propofol in any fashion. Instead, as planned with Respondent, he snuck the cardboard box containing the propofol out of the building and left it in the back of his pick-up truck, which was in the covered physician's parking lot. The tailgate of Mr. Degueldre's truck was not locked. The truck bed was covered with a vinyl cover affixed with velcro. Therefore, the box with the propofol was not secure, but would not have been visible to someone who had not seen Mr. Degueldre place the box there. However, the truck was parked at street level, and as previously noted, pedestrians could and did walk through the physician's lot, en route to the medical arts building from the unrestricted parking lot. Respondent and Mr. Degueldre certainly took a risk by the way they carried out their plan to transfer this potentially dangerous drug. For some period of time after Mr. Degueldre left the cardboard box in his truck bed, someone who saw him could have easily taken the box before Respondent arrived. Without question, this was an unconventional and inappropriate method to transfer possession of this potentially dangerous drug, underscoring the fact that the method was dictated by the paramount goal of stealth to avoid detection by TBSC management. Respondent left All Saints for the 45-minute drive to the TBSC MLK site immediately after sending the 8:02 a.m. text message to Ms. Hastings that she was "[c]oming to get it. Top secret!" Respondent apparently was unwilling to entrust her top secret mission to anyone else, such as one of the two front desk receptionist/clerks at All Saints that day. Respondent offered a more innocuous reason for not sending someone else to pick up the propofol, suggesting that she would have been unable to back up one front desk person while sending the other on an errand for one and one-half to two hours and that she was the most dispensable person there. Respondent's claim is far-fetched, particularly since Respondent had, thus far that morning, spent the entire time closed up in her office calling and texting people for help obtaining propofol and not tending to her normal operational duties as administrator. Instead, the more reasonable inference is that it would have been awkward to explain to anyone else the need to maintain secrecy. Someone else might have had a problem with the plan to pick up a box of propofol from a truck bed in a parking lot. Someone else might have gone into TBSC to say hello, or thank you, and that could have ruined the plan. At her destination, Respondent followed the directions that Mr. Degueldre had given her to find his pick-up truck in the parking lot. Respondent opened the unlocked tailgate, and removed the box of propofol that was waiting for her. She did not go to the medical arts building and did not go into TBSC to say hello or thank you; instead, she took the box and drove back to All Saints. Respondent's plan did not allow for checking the propofol surreptitiously picked up in the parking lot, but upon returning to All Saints, Respondent at least had the good sense to check the propofol lot numbers against the recall notice before using the propofol on patients. Unfortunately, Respondent discovered that the apparent excess supply of propofol that Mr. Degueldre found to lend to Respondent was, indeed, subject to the recall and, thus, could not be used. Respondent called Mr. Degueldre, told him the bad news, and asked him to get her more propofol--this time, some that was unadulterated.11/ Mr. Degueldre agreed to do so and offered to bring the propofol to Respondent at All Saints, since he had planned to leave work early to visit a friend at the hospital next to All Saints. Mr. Degueldre did as Respondent asked; he took more propofol from the TBSC MLK medication room to deliver to Respondent. This time, however, he only got ten bottles, instead of the 25 bottles he obtained previously. Obviously, the supply was not so ample at TBSC's MLK site if one were to restrict oneself to only the usable propofol that was not subject to the recall notice. When Mr. Degueldre brought the ten-bottle supply to Respondent at All Saints, former TBSC employee Shannon Combast was there, and she saw Mr. Degueldre remove the propofol from his bag and give it to Respondent. Ms. Combast expressed her concern that she did not think it was a good idea for Respondent to get propofol that came from TBSC.12/ Respondent assured Ms. Combast that it was only a loan, and she would return a like amount to Mr. Degueldre when All Saints' back-order arrived in a few days. Respondent testified that she later destroyed the 25 bottles of recalled propofol in accordance with protocols and documented that fact with an eyewitness. The next morning (November 13, 2009), at TBSC's MLK site, Mr. Colon alerted Mr. Kanahan to the text-messaging from Respondent that he had read on Ms. Hastings' phone. Mr. Kanahan and Mr. Colon were waiting for Ms. Hastings when she arrived at work. Mr. Kanahan asked Ms. Hastings to show him the text messages on her phone, and Ms. Hastings complied. At Mr. Kanahan's direction, Ms. Hastings then sent the following text message to Respondent, at 7:20 a.m. on November 13, 2009: R u good with the propofol? I hope he didn't get u the recalled kind. This message was designed to confirm that Respondent actually got the propofol that Mr. Degueldre had snuck out for her, since the last message on that subject had said that Respondent was coming to pick it up. At 7:43 a.m., Respondent answered Ms. Hastings and confirmed that she did get the propofol that Mr. Degueldre had left for her. The message stated: He did! Lol! I vaught [sic: caught] it though. Got some elsewhere. Could use more. Can pick up wherev whenev. National backorder. We have to gas all our pt. down. Following the text message exchange on the morning of November 13, 2009, Ms. Hastings gave Mr. Kanahan access to the text messages from Respondent on November 12, 2009, and the exchange on November 13, 2009. Mr. Kanahan had those messages converted to print form on a one-page document.13/ Respondent acknowledged sending the 7:43 a.m. message to Ms. Hastings on November 13, 2009. Respondent did not explain why, in that message, she told Ms. Hastings that the propofol she obtained to replace the adulterated propofol came from "elsewhere," when it actually came from the same source as the recalled propofol; it had been taken from TBSC's MLK medication room by Mr. Degueldre at Respondent's request. Perhaps Respondent did not disclose that she already had obtained some TBSC propofol because in the same message, she was asking another TBSC employee--Ms. Hastings--for more propofol. Ms. Hastings testified that she called Respondent sometime after the text exchange the morning of November 13, 2009, to alert Respondent to the fact that Ms. Hastings' phone was being watched by Mr. Kanahan and to tell Respondent not to send any more texts.14/ According to Respondent, when she spoke with Ms. Hastings, Respondent was told that Ms. Hastings and Sam Colon had shown the text messages to Mr. Kanahan because they did not like Mr. Degueldre and wanted to get him in trouble. Respondent's testimony was not credible. At the time, Ms. Hastings was Respondent's good friend; Ms. Hastings had been asked to be a bridesmaid at Respondent's wedding; Respondent and Ms. Hastings socialized frequently and regularly exchanged text messages. While showing the November 12, 2009, text messages to Mr. Kanahan would and did get Mr. Degueldre in trouble, doing so would and did implicate Respondent, perhaps even more so than Mr. Degueldre, since he was just doing her bidding. The credible evidence does not support a finding that Ms. Hastings wanted to get Respondent in trouble; indeed, it appears that Ms. Hastings was trying to minimize the extent to which Respondent had already implicated herself by warning her to stop sending text messages. Instead, as described above, the more credible and logical explanation for why the text messages were revealed to Mr. Kanahan is that Mr. Colon happened upon the text messages, and once the text messages were discovered, Ms. Hastings had no choice but to disclose what was found and to try to distance herself from Respondent's plan to get propofol.15/ After Mr. Kanahan reviewed the text messages, he spoke with Mr. Degueldre and asked him if he knew anything about propofol being removed from TBSC. Mr. Degueldre initially denied any knowledge about propofol being removed. Mr. Kanahan notified the TBSC risk manager and prepared an incident report to document the unauthorized removal of propofol from the MLK site. Mr. Kanahan also contacted the Tampa Police Department to report the theft of TBSC's propofol. In the afternoon of November 13, 2009, two police officers went to TBSC's MLK site and questioned Mr. Degueldre. Although at first Mr. Degueldre denied taking the propofol, ultimately, he admitted his role in the prior day's activities described above. The police conducted an investigation regarding the incident, which included interviewing Respondent. A police report was issued to summarize the investigation. No criminal charges were brought against Mr. Degueldre or Respondent. Mr. Degueldre was terminated on November 13, 2009, because of the incident. He acknowledged in his testimony that what he did was wrong, because he had no authority to take propofol from TBSC to give to Respondent, even as a loan that she had promised to pay back in a few days. Mr. Degueldre believes that Respondent used him to carry out her scheme to get propofol without authority, because she knew that TBSC management would have turned her down if she had asked to borrow propofol. Mr. Kanahan telephoned Respondent on November 13, 2009, to ask her about her involvement in the removal of propofol from the MLK medication room. Respondent ultimately acknowledged that the propofol was removed from TBSC on her behalf, but that it was her intent to replace it. When Mr. Kanahan suggested that the removal of propofol done at her direction was unauthorized, Respondent hung up on him. TBSC's executive director, Jay Rosen, contacted James Jachimowicz, the president of All Saints, to inform him of the incident. Dr. Jachimowicz investigated Respondent's actions, and then communicated what he learned from his investigation in a November 16, 2009, email to Jay Rosen, which Dr. Jachimowicz forwarded to Respondent. Respondent offered her belief that the reason Dr. Jachimowicz sent her a copy of his email to Jay Rosen was to show her the matter was closed. However, another possibility was to communicate to her what he thought of the incident, described as follows: Dear Jay, I have begun my investigation of the incident last Thursday [with respect to] the propofol. I had a long interview with Ms. Fischer to review what happened and why. First I must thank you for your candor in bringing this matter to my attention. Secondly I wish to apologize to you, your Board/Medical Directors, and staff for this incident. Ms. Fisher's intentions were not to harm your staff or center, only to help our anesthesia staff care for our patients. She did not communicate with Rick or yourself because she felt there were personal issues among you that would not have been receptive to helping her. She did subvert your chain of command and authority and for this she is very sorry. Again, there was no malice intended. . . . (emphasis added). Respondent's position in this proceeding is that she did not misappropriate or steal TBSC's propofol, because it was a loan. In defense of her actions, Respondent presented expert testimony to establish that borrowing and loaning drugs between health care entities is lawful and permitted and that as a matter of industry practice, such loans are routinely accomplished informally, with little or no documentation. Regardless of what may be permissible when two health care entities agree to a borrow-loan transaction, the evidence fails to establish that the November 12, 2009, transfers of propofol at issue were between two health care entities. Instead, the credible evidence clearly and convincingly establishes that TBSC did not agree to loan propofol to All Saints, nor did TBSC authorize Mr. Degueldre to loan its propofol. Respondent attempted to prove that TBSC had a policy, or at least a practice, of loaning medications without the authorization of TBSC management. There was no credible evidence to support this contention. With the exception of the incident at issue, no TBSC witness testified to ever having been personally involved in loaning TBSC medication to another health care entity. Respondent admitted that as a nurse at TBSC, she was never personally involved in such a loan transaction. Mr. Degueldre likewise testified that he had never been involved in borrowing or loaning medications while on staff as a nurse at TBSC. Moreover, Mr. Degueldre never saw any TBSC employee borrowing or loaning TBSC medications. Respondent testified that she observed one incident in which she believed medication was being loaned to another facility, but she had no knowledge regarding whether the apparent loan had been authorized by TBSC management. Similarly, Ms. Combast, the front-office employee, testified generally to having observed loans of medication, equipment, and/or supplies (without specifying whether or to what extent her observations actually included medication) while at TBSC, but she had no knowledge of whether management had authorized the loans. There are no written TBSC policies or procedures for loaning drugs to other health care entities. Mr. Kanahan testified that that is because TBSC does not loan drugs. Presumably, exceptions could be made, but in such event, without any evidence of a delegation of authority to agree to such loans, there would have to be explicit authorization by someone in a position to bind the health care entity that is the owner of the drugs. No evidence was presented that there was ever a loan by TBSC of drugs without explicit authorization by someone in a position to bind TBSC to that agreement. Respondent presented expert testimony describing what was characterized as common practice in the industry for nurses to be authorized to loan drugs on behalf of the health care entities for whom they work, with little to no documentation of the drugs borrowed or loaned. According to these witnesses, apparently there can be multiple people authorized to loan out a health care facility's drugs upon request by someone from another facility to help cover a shortage, and these transfers of drugs are documented by no more than sticky notes and sometimes less, a rather troubling notion that conjures up unmanageable scenarios for the facility whose drugs are being loaned out by multiple persons, perhaps rapidly depleting what may have started out as an ample supply for the facility's own needs and without sufficient documentation of how that came to be. Petitioner presented contrasting expert testimony that in ambulatory surgical centers, borrowing and lending of drugs is a practice that is arranged between administrators, with specific documentation of the dates, the facilities involved and individuals acting on their behalf, and details of what was borrowed or loaned, including lot numbers of the transferred medications. Ultimately, however, whether and how other ambulatory surgical centers or other health care entities choose to delegate authority to loan the health care entities' drugs is irrelevant to this case. No witness testified that an ambulatory surgical center is required to loan its drugs to another health care entity or to delegate authority to nurses or other staff persons to do so. As found above, there was no proof of any such delegation of authority here. Mr. Kanahan testified credibly that because of the propofol shortage, TBSC would not have agreed to loan propofol because it needed the supply on hand to ensure that its patients were taken care of. In that sense, Respondent and Mr. Degueldre were right that TBSC management would not have agreed to loan propofol to Respondent. Respondent intentionally defied and set out to circumvent TBSC's chain of command and authority, knowing that if she had asked a proper authority figure to loan propofol to All Saints, the answer would have been no. The credible evidence demonstrates that Respondent knew that Mr. Degueldre was not authorized to loan TBSC's propofol to her. Mr. Degueldre knew that he was not authorized to loan TBSC's propofol. Only by seeking out someone without authority and without an understanding of the actual propofol supply status at TBSC was Respondent able to achieve her goal of acquiring propofol. Mr. Degueldre did not know when he first surveyed the propofol supply in the medication room that what he believed to be an ample supply was actually adulterated, unusable propofol. Respondent did establish that her acquisition of the TBSC propofol was documented for the borrower, All Saints, consistent with All Saints' procedures for borrowing medication, equipment, or supplies from other health care facilities. A borrow/loan log in evidence shows that at some point, Respondent recorded at least some information about the TBSC propofol from Mr. Degueldre. But the borrower's documentation does not make up for the absence of authorization by the lender to loan the drugs in the first place. The All Saints borrow/loan log in evidence also documents that, contrary to Respondent's assurances to Mr. Degueldre that she would return a like amount of propofol in just a few days, it was not until December 15, 2009, that Respondent finally attempted to return propofol to TBSC. By that time, Mr. Kanahan did not want anything to do with Respondent or All Saints, and he refused the delivery. Interestingly, the All Saints' log also indicates that the loan of propofol from Oak Hill Hospital in October 2009 had still not been returned as of December 15, 2009. These facts might explain why it may be prudent for an ambulatory surgical center to refuse to loan its propofol, at least if it can foresee needing the supply it has anytime soon. Respondent contended there was no requirement at TBSC that the removal of propofol be documented, so there was nothing wrong with the absence of documentation at TBSC that propofol was removed to loan to All Saints. In this regard, Respondent established that at TBSC, the medication is kept in a locked medication room that can be accessed by nurses who have the code for the combination keypad. Respondent also established that there is no log or check-out system required when a nurse takes medication. However, as noted above, there was no evidence that medication is ever removed for any purpose other than for use with a TBSC patient. It is one thing for an ambulatory surgical center not to require documentation of the internal movement of drugs from the medication room to the operating room or the recovery room, because the medication would be accounted for in the medical records, with reconciliation as part of the inventory process. It is quite another thing to say that documentation would not be necessary to account for drugs being removed from the facility entirely. In a narrow and technical sense, recordkeeping at TBSC was not Respondent's responsibility. In that sense, Respondent is not directly responsible for Mr. Degueldre's failure to document the removal of TBSC's propofol in carrying out the plan with Respondent. However, Respondent is responsible for the scheme she developed to have propofol snuck out of TBSC for her, and the fact that no record was made is further evidence of the secrecy by which this plan was to be carried out. Respondent sought to excuse her actions because she only wanted to help her patients. Respondent presented the testimony of an expert in legal and ethical standards in nursing, who spoke to the fact that Respondent was addressing a paramount professional obligation to act in her patients' best interests. Respondent's expert explained the theories of rule-bending and work-arounds, wherein nurses engage in behavior that circumvent system obstacles when those obstacles interfere with treatment goals. Rule-bending is closely related to the nursing theory of "responsible subversion," which can take the form of unprofessional conduct. The somewhat milder version of these related theories, work-arounds, occur when a nurse goes outside the chain of command, but does not also violate a law or rule. In explaining these theories, Respondent's expert made clear that they are simply ways to describe observed behavior and do not excuse or justify a violation of statute or rule. Thus, while these behavioral studies were interesting, they can be summarized with the recognition that, as the saying goes, the ends do not justify the means. Respondent did not go to the lengths she did to sneak propofol from TBSC for nefarious purposes, such as if she had been personally using propofol or selling it for personal gain. Respondent plainly had the best interests of her employer and her patients in mind. At the same time, she just as plainly did not have the best interests of the propofol owner, TBSC, or TBSC's patients in mind. Indeed, Respondent had learned that the Dale Mabry TBSC had insufficient propofol on hand by the time she returned to All Saints with the adulterated propofol and before she asked Mr. Degueldre to get her more TBSC propofol. Yet, not only did Respondent take the ten bottles of TBSC propofol that Mr. Degueldre got for her that afternoon, but she was back at it the next morning asking Ms. Hastings for more propofol without telling her that Respondent had already obtained some propofol from TBSC. Thus, it cannot be said that Respondent's "ends" were appropriate from the perspective of what is in the best interests of patients, as opposed to what is in the best interests of All Saints' patients, but at the expense of TBSC's patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Respondent, Angela Christine Fischer, R.N., n/k/a Angela Christine Kramer, R.N., violated section 464.018(1)(h), Florida Statutes (2009), and Florida Administrative Code Rule 64B9-8.005(2); and finding that Respondent violated section 456.072(1)(m), Florida Statutes (2009). For such violations, it is FURTHER RECOMMENDED that the Board of Nursing impose the following penalties: (1) reprimand; (2) administrative fine of $500.00; (3) three-year probation with such terms as the Board of Nursing deems appropriate; and (4) payment of Petitioner's costs incurred in the investigation and prosecution of this case, as determined by the Board of Nursing, pursuant to section 456.072(4). DONE AND ENTERED this 21st day of September, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 21st day of September, 2012.
Findings Of Fact Respondent John Thomas Beckum, a graduate of Bolles Military School and an alumnus of the University of Florida, is a second generation optometrist. His father was chairman of Florida's first Opticians' Board. In 1956, when he earned a B. S. degree and a doctorate of optometry at the Southern College of Optometry in Memphis, Tennessee, respondent graduated salutatorian. On July 31, 1960, respondent obtained his Florida optometrist's license. He worked for an older optometrist in Jacksonville, Florida, before he moved to Gainesville and began his own practice in 1961. It was also about that time he ceased to be a "formal member" (T. 350) of the Optometric Extension Program (OEP), but he has remained active in several other optometric organizations and has attended continuing education courses. He keeps up with the latest in new equipment in chats with the Gainesville ophthalmologist to whom he refers some of his patients. At the time of the hearing, respondent still practiced in Gainesville and held optometrist's license No. 668. He has been licensed by petitioner at all pertinent times. As a result of a complaint unrelated to this case, Ellen Williams, a program monitor in the medicaid office of the Department of Health and Rehabilitative Services (HRS) "requested a printout of [Dr. Beckum's] practice," (T. 85) and examined this computer compilation of information about medicaid claims respondent had submitted. In the period July 1, 1979, to June 30, 1980, Dr. Beckum saw 272 medicaid patients of whom 210 received eyeglasses. Of the 272, there were 112 children ten and under. Of these 112 children, 98 received eyeglasses. Of the 98 bespectacled children, 39 were under age six. At the suggestion of an HRS consultant, Dr. James A. Stephens, some of the respondent's records were examined and copied by HRS investigators., A random group of children's records was copied on the first trip to Dr. Beckum's office and a random group of adult patients' records was gathered, on a second visit. These records, which are in evidence as Petitioner's Exhibits 4A, 4B and 4C, were examined by Dr. ,Stephens, and, eventually, by Drs. Cherdack, Devine and Albert, served as volunteers on a peer review committed of the Florida Optometric Association. MEDICAID FRAMES Catherine Wright, mother of Shawn and Craig Wright and of Farnell and Preston Walker, sent her children to Dr. Beckum in the late '70s at the suggestion of school authorities. Each child received, eyeglasses under the medicaid program. Dr. Beckum told Ms. Wright that the medicaid program would cover the cost of some of the frames but not others. Two of her children chose frames Dr. Beckum told her Medicaid did not cover. On each occasion, Ms. Wright paid respondent's office seventeen dollars ($17.00). Ms. Wright understood she would not have incurred these charges if other frames had been selected; she just wanted to indulge her children by getting them the frames they picked out. After Tracy Boykin started school, her mother to her to Dr. Beckum's office. Eyeglasses were prescribed, and Tracy tried on several frames. She was a medicaid recipient at the time of this visit, in the fall of 1980. None of the "medicaid frames" looked right because her face is real narrow and all the frames that she tried on was small. So, he had a row of frames up on the shelf [and Mrs. Phyllis Smith, Tracy's mother] picked a pair from up there," (T. 134 for which she paid respondent's office seventeen dollars ($17.00). On Tracy's chart appears the pithy comment: "THIN HEAD." Sylvia Webb did not testify at hearing but on the basis of the parties' stipulation that she would have testified as Ms. Smith did, she is found to have paid Dr. Beckum seventeen dollars' ($17.00) for eyeglass frames for herself, while she was a medicaid recipient, some time between the fall of 1978 and the fall of 1980. MEDICAID POLICY? As an optometric consultant to HRS, Dr. Stephens has spoken to more than a hundred optometrists about medicaid policies. It is widely known among Florida's optometrists, he testified, that either "the patient pays for the glasses in their [entirety] or Medicaid pays for it, you cannot charge extra for tints or a special frame or anything of that nature." (T. 86) Elaine Beckum, respondent's wife of 25 years, has worked, for the last five and one half years, as a receptionist at respondent's office. In 1978 or 1979 she spoke to somebody in a Gainesville HRS medicaid program office, "Ms. Uelsmann's office," (T. 150),who told her, she testified, that medicaid patients "are permitted extras [s]uch as tints, better frames, better lenses" and "that if patients wanted these "extras, that they could have them." (T. 150) It was Mrs. Uelsmann herself she talked to (T. 156) She contacted Mrs. Uelsmann; and Mrs. Uelsmann answered her questions [if she's] not mistaken, if [she] remember[s] correctly." (T. 157) She communicated the substance of this telephone call to Dr. Beckum. Why Mrs. Beckum telephoned Mrs. Uelsmann is not clear from the record, because Sylvia Jones, who worked as respondent's receptionist and secretary/bookkeeper, before she left in 1977, had already called Mrs. Uelsmann, at respondent's behest, and inquired about "extras." She was advised that time that the patient could pay a difference and get a different type of frames, if they so chose" (T. 304) which advice she related to respondent. MINIMUM PROCEDURES Rule 21Q-3.07, Florida Administrative Code, took effect on November 13, 1979, and prescribed the following minimum procedures for a vision analysis: Complete case history (recorded); Unaided visual acuity, and acuity with present correction, if any; External examination including cover test and visual field testing (confrontation or other); Ophthalmoscopic examination (direct or indirect) including a study of the media, fundus, blood vessels, cup disc ratio. Biomicroscopy (binocular or monocular); Static retinoscopy or other objective refraction; Test for binocularity; Subjective refraction with recorded visual acuity; Tonometry; Other tests and procedures that may be indicated by case history or objective signs and symptoms discovered during the eye examination; Diagnosis and treatment. Joint Exhibit No. 1. At all pertinent times, even before adoption of the rule, there were minimum standards of prevailing and generally accepted optometric practice. These standards obtained throughout Florida and have not changed significantly in the last four or five years. Just as vision screening with snellen letters entails certain minimal steps, so an optometrist's vision analysis, which is considerably more comprehensive, consists of certain procedures at a minimum. At all pertinent times, generally accepted and prevailing minimum procedures included all those now codified in Rule 21Q-3,07, Florida Administrative Code, except for tonometry on persons younger than 35 years old and visual field testing. The better practice has always been to record the results of every procedure, but not all practitioners did this before the recent amendment to Rule 21Q3.07, Florida Administrative Code, effective April 24, 1980. Generally accepted and prevailing standards of practice have always required recordation, however, of significant or pertinent findings. Members of the Florida Optometric Association's peer review committee asked respondent why so many of his patients' records were devoid of the results of testing required by generally accepted and prevailing standards and, more recently, by formal administrative rule, as well. Dr. Beckum responded that he was familiar with Florida's Optometric Statutes and Rules concerning minimal examination procedures and the necessity for recording their results. Be said he had conducted more of these tests than were recorded, but just had failed to notate it on his records. He also stated that many of the required tests could not be done due to the lack of maturity of the children involved. However he failed to record this reason on his exam record. Dr. Beckum further .explained that in his philosophy of testing, some of the State's mandated tests were unnecessary (and not done) in order for him to do an adequate examination. Exhibit/ Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7. By his own admission, to the committee, respondent has failed to perform some of the minimum procedures required by Rule 21Q-3.07, Florida Administrative Code, and has failed to record the results of others. The patients' records, as to which these admissions relate, are in evidence as attachments to Petitioner's Exhibits Nos. 6. and 7. Among these records are several examinations that took place after April of 1980. Drs. Albert, Cherdack and Devine were three of the five members of the peer review committee which, as a whole, examined 146 patient records from Dr. Beckum's office and concluded: There was no justified excuse for the lack of recording, in so many cases, the minimum test results, required by the State of Florida. Neglect, or negligence is not a good reason. There was no valid reason given to us for not doing the minimal tests required by the State. Exhibit/Attachment No. 2 to Petitioner's Exhibit Nos. 6 and 7. In these respects, the peer review committee's findings are adopted, without qualification. Of the more than 100 patient records prepared by Dr. Beckum that he reviewed, Dr. James Stephens could not remember a single one on which all the test results that generally accepted and prevailing minimum procedures would have yielded were recorded. Nor was there any record of a reason for not recording these results. The overwhelming majority of these records were made in or after January of 1979 and in or before March of 1981. Some were later than April of 1980. Dr. Stephens did not review the records specifically in order to determine compliance with minimum visual analysis procedures, however. He was not on the peer review committee; he reviewed the records, as a medicaid consultant, for possible fraud and abuse. CASE IN POINT Dr. Beckum saw six year old Tony Baker on February 9, 1981, and wrote down Tony's complaint: His eyes run water all the time. No other information was recorded under the heading "Ocular History." Even though respondent made no record of any near point testing, he prescribed low plus lenses (.25 for each eye) for Tony, and did so without making any, record of having performed the pathology examination that might have uncovered the reason that his eyes watered. The p1us .25 diopter prescription for the optic sphere in each lens would not have alleviated this problem: [A] quarter of optic sphere in each eye would not prevent a patient's eyes from running water There was no slitlamp testing done here, nothing recorded to show that there was a pathology exam done. The thing that concerns me more than whether the glasses were prescribed, which is important, especially to Medicaid when the taxpayers are funding the money, is the lack of pathology testing done. You might have a kid that had some kind of problem that wasn't uncovered. You are not going to harm him by putting on glasses that he does not need. He will lose them or something. But the lack of pathology testing [or at least recordation] does concern me. Deposition of Dr. Stephens, pp. 689. Among others whose visual analysis examinations were performed by Dr. Beckum, but whose examinations did not comport with prevailing and generally accepted minimum requirements, were Kenja Brooks, Carla Michelle Dallas, Eva Mae Dawson, Donia Durden, Twana Evans, Dorothy Jerisesha Farr, Roosevelt Forbes, Sharon Futch, Simeon Griffin, Delores Harrel, Laura Spates, Geneva Tart, Curtis Thorp, Vera Wilson, Elnora Wright, Nicole Young, Andrew Daniels, Christine Neddo, Stephen Cook, Stacey Thomas and Dorothy A. Strickland. LOW, LOW, LOW POWER Respondent has prescribed "low plus" lenses for his own family and for numerous patients, children and adults, including a Joyce Courtney, who came to him in 1973 complaining of difficulty focussing on objects 30 to 40 feet away and who felt that Dr. Beckum resolved her problem by prescribing low plus lenses. A "low plus" lens has an optical sphere of less than one half /1 diopter. A diopter is a unit of the refractive or "focussing" power of a lens. Unlike many optometrists, Dr. Beckum subscribes to the views on stress relieving, low plus lenses held by the OEP of which he was once a member. Optometrists who share these beliefs, like Dr. O.C. Clarke, think low plus lenses should be prescribed for a "number of possible reasons, most of which you will find in near point vision care [and that] low plus lenses reduce the stress of the near-point task." (T. 195) Among the possible indications of a child's need for low plus lenses, according to is the school of optometry that holds there can ever be any need, are when the child is unable to work at his desk for more than a short period of time without becoming restless or fidgety. He may become tense or may work too close to his page; he may turn or cock his head to view the page. He may frequently stare off into space or look out the window. may eyes lid or the conjunctivia may appear reddened. If asked about his vision he may report that the print runs together or blurs after he has been reading for a short time, so that he cannot copy from the blackboard to his desk. Headaches may also be an indication. Sometimes there are no specific symptoms other than the fact that he is a bright child but just getting by in school. Respondent's Exhibit No. 3 But in Developmental Lenses for Children by Richard J. ApeIl, O. D., Respondent's Exhibit No. 3, the author states: Developmental [low plus] lenses are, of course, no panacea for the myriad of visual problems that we find among, school aged children. What are the symptoms that indicate a real need for developmental glasses? It is plain that distance vision is no criterion. Respondent's Exhibit No. 3. Low plus lenses have been advocated since the 1940s. The advocates claim that a prescription for low plus lenses is justified by symptoms of accommodative stress in reading or other near point tasks, but not otherwise. 20 Optometrists who doubt the efficacy of low plus lenses are unlikely ever to prescribe a lens of less than one half diopter. These skeptics, who are in the majority, view such low powered lenses as almost the same as window glass. They point out that prescription errors of a quarter diopter are routinely overlooked, and that a lens of less than one half diopter (a "low- plus" lens) has no measurable effect on visual acuity. Such lenses could be called "low, low, low power," Dr. Stephens testified. Medicaid pays optometrists $25 for examining eligible patients and an additional $7.00 for dispensing eyeglasses. Optometrists like Dr. Beckum who provide the frames get an additional $18.25 for "single vision" eyeglasses and $20.50 for bifocals, about half of which is profit. Dr. Donald Albert, who testified for petitioner on deposition, examined numerous (at least 20) records of examinations Dr. Beckum had prepared. He was amazed at the number of low power prescriptions he saw. On no patient's chart he saw was there a recorded visual acuity with the aid of the low power prescription. " Deposition of Dr. Albert, p. 80. The peer review committee found: Dr. Beckum's examination techniques and prescribing procedures (the magnitude of extremely low power prescriptions) are certainly outside the mainstream of current professional optometric philosophy and practice. This Committee believes that it is not necessarily wrong to be outside a mainstream, but if one is, he must certainly be able to defend this philosophy with complete research, documentation and/or complete testing procedures as well as to provide comprehensive recorded follow up testing to justify or satisfy a peer review and/or State Board Review, if he is not satisfying his State's minimum examination procedures. We find that Dr. Beckum has not documented, explained or provided adequate follow up care to justify to this Committee his questionable examination and prescribing procedures which we believe have resulted in multiple cases of unnecessary eyeglasses being prescribed. However, our Committee does feel that Dr. Beckum honestly believes his techniques and prescriptions are correct and warranted. Our Committee believes when dealing with claims in great numbers it is possible and probable for any doctor to have a small percentage of errors in his billings as to amount and copayments; especially when dealing with third party claims as almost all third party carriers have different and sometimes conflicting rules and regulations on payments, co payments and covered items. However it is out of this Committee's expertise and jurisdiction to deal with possible legal questions that arise concerning possibly nonvalid payments. In accordance with the FOA Professional Standards Review, we recommend to the Florida Department of Health and Rehabilitative Services, the following cou[r]ses of action in this case. Admonish Dr. Beckum in those areas of his misunderstanding and unintentional irregularities in the form of a reprimand. Establish a prepayment review as a corrective/educational device. By this, we mean that if Dr. Beckum is to be allowed to continue seeing Medicaid patients, he must agree to perform and record all tests as required by the State and to evaluate his prescribing and prescriptions in a standard and acceptable manner. Dr. Beckum must further agree to monthly submit copies of his examination records to the Medicaid Optometric Consultant (or this PSRO if payment should be granted. This review procedure should be undertaken for a minimum of six months, at which time, termination of this review may be considered. H.R.S. should have its own staff decide on repayment and/or other actions regarding the eight records where recipients had made payment over and above the Medicaid payment. H.R.S. should have its own staff decide on repayment and/or other actions regarding the three recipients who did not receive eyeglasses for which Medicaid was billed. Copies of this report and other pertinent data in this investigation should be sent to the Department of Professional Regulation for this review. Exhibit/Attachment No. 2 to Petitioner's Exhibits Nos. 6 and 7. The committee acknowledged that respondent's views on low plus lenses are "not necessarily wrong" because they are "outside a mainstream," but concluded that respondent prescribed eyeglasses that were unnecessary under any theory. UNNECESSARY PRESCRIPTIONS Dr. Beckum prescribed low plus (.37 for both eyes) lenses for Samuel Rochelle, Jr. after an eye examination in May of 1980 or January of 1981 in the course of which he recorded unaided acuities at distance, a phoria finding, subjective refraction with recorded acuity and the results of a static retinoscopy, but made no record of any near-point testing, because none was done. Dr. Beckum, made no record of anything that would justify the glasses he prescribed to Samuel Rochelle, Jr. on any theory. Dr. Beckum also prescribed plus (.37 for both eyes) lenses for Tony M. Adkins, a fifth grader, after an examination in November of 1978 or January of 1980 during which various findings were recorded, but nothing that would explain or justify, on any theory, the controversial prescription which Dr. Beckum wrote and Medicaid filled for Tony M. Adkins. In February of 1980, Dr. Beckum prescribed low plus (.25 for both eyes) lenses for 10 year old Joyce E. Rochelle for reasons the record of her examination does not reveal. No near point testing results were recorded either in February or in November of the same year, when Dr. Beckum wrote another low plus prescription (.37 in each eye) for the same child. The patient's record contains nothing to justify or explain, on any theory, the first prescription, the second prescription or the reason for the change. Each of Dr. Beckum's patient records is a form complete with possible symptoms printed on it, for circling, to facilitate the taking of a patient's history. Among those symptoms printed on the form are "Headaches," "Eyes: Ache, Tire," "Blur," "Pains)" "Nausea," and "Nervous." None of these symptoms was circled on the records of Joyce E. Rochelle, Tony M. Adkins, or Samuel Rochelle, Jr. The evidence did not establish that the prescriptions Dr. Beckum wrote for these children were warranted. They would only be justified if written "for the relief of accommodative spasm for subjective symptoms such as headache poor focussing ability, discomfort [and] tiredness of the eyes. Deposition of Joseph R. Devine, pp. 71-72. Dr. Beckum prescribed low plus lenses (.37 in each eye) for Anthony Boykin, a kindergartner, on August 18 or October 5, 1978, and again on November 20, 1979. No history whatsoever appears on this patient's records after August 18, 1980, and there is no record of any near point testing at any time. Similarly Dr. Beckum twice prescribed low plus lenses (.37 in both eyes) for Tracy Boykin, once on October 5, 1978, when she was in first grade, and again on November 20, 1979, after she had broken her first pair of glasses, without recording any history or any near point testing or anything" else that would, on any theory, explain or justify the prescriptions. There is no case history of any sort. There are no points of acuity before or after arriving at the prescription. There is no health testing that is listed here; no corneal curvature measurement, no near point testing, no binocularity testing. Deposition of Leonard Cherdack, p. 52. On March 10, 1980, Dr. Beckum prescribed low plus lenses (.25 for each eye) for Terri Lynn George and later the same year wrote a second, different prescription for low plus lenses (.37 for each eye) for Terri Lynn George. Again the patient's record is devoid of any finding or history that could, on any theory, explain or justify either the first or the second prescription, or account for the change: "No case history, no near point acuities, no health testing, no binocularity testing, no corneal reading," Deposition of Leonard ,Cherdack, p. 66 were recorded. The records Dr. Beckum kept of his two examinations of David Matthew Dixon reveal nothing that could justify or explain, on any theory, the two different low plus lens prescriptions he wrote for this child. In August of 1978, he prescribed .37 for both eyes, but the prescription was changed to .25 for both eyes approximately a year later. "There is no case history. There is no near point acuity recorded. No health history recorded." Deposition of Leonard Cherdack, p. 88. Dr. Beckum wrote two low plus lens prescriptions (both were .25 for each eye) for David Eric Dixon but nothing in David's records would explain or justify these prescriptions. Andrew Daniels saw respondent in February of 1979 and again about a year later. Both times Dr. Beckum prescribed low plus lenses (.25 for each eye), even though nothing in Andrew's records indicates the need for any prescription. He had "excellent distance acuity [20/15]." Deposition of Leonard Cherdack, p. 90. No patient history was recorded. "There is no near point acuity. No health testing no binocularity testing. There is no objective determination which shows nothing, no prescription. There is no subjective determination." Deposition of Leonard Cherdack, p. 90. Dr. Beckum took downs David S. Cooper's complaint when he examined this 8year old on December 20, 1979. "I don't know if I see well," is the complete history recorded on David's chart. But, at the time of the examination, David's unaided visual acuity at distance was 20/15 for both eyes and 20/15 for each. Dr. Beckum nevertheless prescribed glasses (.25 for each eye) which, if they had any effect, could have reduced the unaided acuities at distance. On deposition, Dr. Cherdack testified, "He sees worse with this prescription than he saw before he came into the office p. 95. Dr. Cherdack had not examined David Cooper, however. On March 11, 1981, Dr. Beckum saw Tonya Miller for the second time. When he had first seen her, on August 8, 1979 he had written a low plus (.25 for the right, .50 for the left) lens prescription which Dr. Stephens described as "questionable." Dr. Beckum prescribed new low plus (.25 for each eye) eyeglasses for Tonja Miller in March of 1981 even though her unaided acuities at distance were better than normal, viz., 20/15. Her complaint, which Dr. Beckum recorded, was "I can't see too good," but "when a patient is seeing 20/15 ths, then they are seeing good." Deposition of Dr. Stephens, p. 57. Nothing in Tonya Miller's records justifies or explains, on any theory, the prescription respondent wrote and filled for her on March 11, 1981. In scores of other cases, as well, respondent prescribed low plus eyeglasses for medicaid recipients and others who did not need them, including Tabetha Ann Evans, Betilda Gwenethe George, Andrew Daniels, Stephen Cook, Tammy Richardson and Melinda Cooper.
