The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the State of Florida agency responsible for regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2004). As set forth herein, the Respondent was a physician licensed to practice medicine in the area of critical need (ACN), and holding Florida license number ACN144. A physician holding an ACN licensed must practice in a facility that meets certain statutory requirements or which is designated by the State Health Officer as an entity providing health care to an indigent population, and must submit documentation establishing employment at an ACN-designated facility for licensing. The secretary of the Florida Department of Health is the state health officer. Prior to the events at issue in this proceeding, the Respondent practiced medicine as medical director at "Mariner's Medical Center" (Mariner's), which closed in October 2002. Mariner's was an approved ACN facility. After the closure of the Mariner's facility, the Respondent accepted a position in Miami at Jackson Memorial Hospital (Jackson) in October 2002; however, prior to commencing his employment, circumstances at Jackson changed and the Respondent's position at Jackson was eliminated. The Respondent's employment contract at Jackson was terminated and, he received payment under the terms of the agreement. The Respondent subsequently returned to central Florida, apparently intent on opening a medical practice. By letter to "Sandy Condo," from the Respondent dated July 17, 2003, the Respondent sought responsibility for Mariner's medical records. The letter did not further identify Sandy Condo, but the address was that of the Petitioner. The letter, which identified the practice as an entity called "Boriquen Healthcare Plus," stated as follows: This is to certify my desire for the responsibility of the medical records of Mariner's Medical Center, where I was the Medical Director until October 24, 2002. I am willing to be the custodian of these medical records and I would like the computer data base (sic) be transferred to my care. I intend to follow up on the care of all these patients. In August 2003, the Respondent opened a private practice at 931 West Oak Street, Suite 103, Kissimmee, Florida, and began treating patients. The practice was initially named "Boriquen Health Care" (reflecting the historical name for Puerto Rico), but within a few days of opening was renamed "Physician's Health Care Plus." Towards the end of August 2003, the Respondent made efforts to acquire the ACN designation for his practice. Materials seeking the designation were submitted by Glenda E. Gonzalez-Cortes, M.D., the Medical Director for Physician's Healthcare Plus, to the Board of Medicine (Board). Although the materials were received by the Board, the Board was not the agency responsible for ACN facility designations. It is unclear whether the Board forwarded the materials to the appropriate office within the Department of Health for processing. It is likewise unclear whether the Respondent understood the distinction between the "Department of Health" and the "Department of Health, Board of Medicine." In any event, the fact that materials were submitted seeking ACN designation for the practice clearly establishes that the Respondent was aware that the practice was not designated as an ACN facility. A memo dated October 2, 2003, from Melinda K. Gray, Regulatory Supervisor of the Board of Medicine, to Larry McPherson, Jr., Executive Director of the Board of Medicine, stated as follows: Attached please find a letter dated July 17, 2003, from Dr. Jose A. Gutierrez, expressing his desire to take responsibility for the medical records of Mariner's Medical Center. Based on my conversation today with Dr. Gutierrez, he again expressed his desire to take responsibility of the medical records and to follow-up on the care of these patients who received medical treatment at Mariner's Medical Center Please be advised of the following: Mariner's Medical Center is closed. Mariner's Medical Center is owned by a non-health care licensee. The medical records located at Mariner's Medical Center are currently inaccessible and are being maintained by a leasing company. Dr. Gutierrez or the patients do not have access to these medical records. Dr. Gutierrez is willing to take custody of these records, which are located on a computer hard drive, and paper records. The hard drive is necessary to be able to link between the patient's name and patient identification numbers. Dr. Gutierrez indicated he intends to follow the care of these patients. Dr. Gutierrez holds a clear active medical license in the area of critical need in the state of Florida and reflects no prior discipline. Dr. Gutierrez indicated that either the leasing company or the owner of Mariner's Medical Center would not release these records to him until the Board of Medicine reviews his request to take custody of the records and the Board grants his request. Dr. Gutierrez agrees, accepts and acknowledges the responsibility to maintain the medical records and follow-up patient care of the patients who received medical treatment at Mariner's Medical Center, beginning July 17, 2003. By letter dated October 7, 2003, from the executive director of the Board of Medicine, the custodial request was approved. The letter stated as follows: It is my pleasure to advise you that, pursuant to your request, the Board of Medicine voted on October 4, 2003, to permanently appoint you as the Custodian of Records for the former Mariner's Medical Center. This appointment is pursuant to Section 456.057(19), Florida Statutes, which authorizes the Board of Medicine to permanently appoint a person as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records. The Respondent suggests that the release of the records to his custody constituted approval of his July 17 request to provide treatment; however, the October 7 letter clearly did not address issues regarding provision of patient care. The statutory citation referenced in the letter addresses only custody, maintenance, and use of medical records. There is no credible evidence that the ongoing dialogue between the Respondent and representatives of the Petitioner constituted approval of the Respondent's request to provide medical care to Mariner's patients. Further, there is no evidence that the Respondent's practice at "Boriquen Health Care" or "Physician's Health Care Plus" was limited solely to patients who had received care at Mariner's. By letter dated November 25, 2003, to Kimberly Rivers, Regulatory Supervisor for the Department of Health, Board of Medicine, the Respondent referenced a conversation of November 21, 2003, wherein a discussion allegedly occurred regarding the requirements for ACN designation. The letter clearly establishes that the Respondent was aware that the practice had not yet received the ACN designation. The Respondent's ACN license was due to expire on January 31, 2004. On January 30, 2004, the Respondent submitted his ACN re-licensure application. Because he was not practicing at an ACN facility as of the expiration date, the ACN license was not automatically renewed. By letter dated February 5, 2004, the Petitioner notified the Respondent that his ACN license renewal could not be completed until submission of a letter from "your employer in an area of critical need." The letter referenced an enclosure that allegedly identified the ACN-designated facilities. An email dated February 16, 2004, from Joanne Davis-Trexler to the Respondent references a prior conversation and advises that the Respondent's license can not be renewed without "proof of employment in a facility approved as an Area of Critical Need." The email further advises that the Respondent's license is "delinquent" and that "practice with a delinquent license is a violation of Florida Statutes." An exchange of email between the parties indicates that subsequent to February 16, 2004, additional information, including Medicaid/Medicare billing records, was submitted by the Respondent to the Petitioner to document the patient population being served by the Respondent. On March 8, 2004, the secretary of the Department of Health, acting as the state health officer, approved Physician's Health Care Plus as an ACN-designated facility based on the staff's recommendation. On March 24, 2004, following the facility's ACN designation, the Respondent's ACN licensure was renewed. Between August 2003 (when the Respondent's practice began operating absent the ACN designation) and March 8, 2004, the Respondent failed to comply with licensure requirements limiting his practice to ACN-designated facilities. Between February 1 and March 24, 2004, the Respondent failed to comply with requirements related to timely renewal of his ACN licensure. The Respondent has moved to Texas, is no longer practicing medicine in Florida, and has placed his Florida license into a "retired" status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order issuing a letter of concern to the Respondent related to the licensing violations cited herein. DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2006. COPIES FURNISHED: Patrick L. Butler, Esquire Katharine B. Heyward, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 George F. Indest, III, Esquire Joanne Kenna, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part Il, Florida Statutes, and Chapter 400, Part X, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The parties have since entered into the attached Settlement Agreement, (Ex. 2). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The facility’s Certificate of Exemption is deemed surrendered and is cancelled and of no further effect. 3. Each party shall bear its own costs and attorney’s fees. Any requests for administrative hearings are dismissed and the above-styled case is closed. 4, In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 5. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. Filed December 24, 2014 3:11 PM Division of Administrative Hearings 6. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this 25” day of htaewnboer , 2014. , Secretary th Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct of this Final Order was served on the below-named persons by the method designated on this eis of , 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Thomas Jones, Unit Manager Facilities Intake Unit Licensure Unit Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Daniel A. Johnson, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) Dagmar Llaudy, Esquire Law Office of Dagmar Llaudy, P.A. 814 Ponce De Leon Blvd, Suite 513 Coral Gables, Florida 33134 (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The issues under consideration in this case concern an administrative complaint placed by the Petitioner against Respondent accusing him of practicing medicine with an inactive license for the period of January 1, 1988 until on or about October 27, 1988. For this alleged activity Respondent is said to have violated Sections 458.327(1) (a) and 458.331(1)(x), Florida Statutes.
Findings Of Fact Respondent attended the University of Rochester from 1977 to 1990 and received a B.A. in biology and a B.S. in neuro- science. He then received his medical education at Upstate Medical Center in Syracuse, New York, from 1984 until 1985 and graduated as an M.D. He served surgical internship at Geisinger Medical Center, a general surgery internship, in the year 1985. From 1985 until the point of hearing, he had been receiving training as a resident at the University of Florida Department of Orthopedic Surgery. As such, he is employed by the University of Florida. The residency program in the Department of Orthopedics at the University of Florida is approved by the Council on Graduate Medical Education. His duties as a resident physician include assisting the attending physician and making diagnosis and carrying out treatment, as well as prescribing medication. These duties are performed in Shands Teaching Hospital in Gainesville, Florida, and at the Veteran's Administration Hospital in that same community. In the period January and February, 1988, he was at Shands Teaching Hospital in pediatric orthopedic service. He then served four months at the Veteran's Administration Hospital in the general orthopedic rotation. He then returned to Shands Teaching Hospital as part of the adult reconstructive service. At no time while participating in those programs did he undertake other medical employment. On March 4, 1985, Respondent executed a form provided by the Board of Medical Examiners entitled "Registration Application for Unlicensed Physicians." It may be found as Petitioner's Exhibit 3B-1 admitted into evidence. The purpose of this form was to identify his participation as a resident at Shands Teaching Hospital. In response to the questionnaire, Respondent indicated that he did not intend to become licensed in Florida. This form was submitted to the Department of Orthopedic Surgery at the University of Florida and was subsequently forwarded to the Department of Professional Regulation. Notwithstanding the lack of intention on the part of the Respondent to practice medicine in Florida as expressed in his application as executed on March 4, 1985, Respondent applied for and was given an active license to practice medicine issued on November 22, 1985. The medical license is no. ME0047478. He took this step at the instigation of his employer the University of Florida who remitted the necessary fees to obtain that license. On January 16, 1986, Shands Teaching Hospital submitted a list of unlicensed physicians participating in programs within the University of Florida College Medicine as of January 14, 1986 and employed by the University of Florida. This list was sent to Dorothy J. Faircloth, Executive Director of Board of Medical Examiners (Board of Medicine). The attached list included the Respondent's name as being among those persons who were unlicensed physicians working at the University of Florida College of Medicine, Shands Teaching Hospital a that time. A copy of the correspondence of January 16, 1986, is found as Petitioner's exhibit 3-C admitted into evidence and the list itself is Petitioner's exhibit 3-D admitted into evidence. A copy of a list dating from July 1, 1986 describing unlicensed physicians at the University of Florida reflects Respondent's name. However, a line is drawn through his name and other identifying data concerning the Respondent. It is unclear from this record who had drawn that line through the name as reported. A copy of that report may be found as Petitioner's exhibit 3- E admitted into evidence. The list of licensed physicians at the University of Florida as of July 1, 1987, submitted to the Board of Medicine did not reflect the Respondent's name. This can be seen in an examination of Petitioner's exhibit no. 3-G admitted into evidence. Likewise, on January 15, 1988, correspondence was directed to Ms. Dorothy Faircloth, Executive Director of the Board of Medicine, a copy of which is Petitioner's 3-H, admitted into evidence. A list of unlicensed physicians at the University of Florida was attached. That attachment is Petitioner's exhibit no. 3-I, admitted into evidence and it does not show the Respondent's name. That list reflects the circumstance of unlicensed physicians as of January 15, 1988. The Respondent's initial registration as a resident physician on March 4, 1985, was in an effort to comply with the requirements set forth in Section 458.345, Florida Statutes. The submission of the list of the resident physicians and other physicians by the University of Florida, College of Medicine, in the periods as reported above was in an effort to comply with that institution's obligations under Section 458.345, Florida Statutes. In late October or early November, 1987, Respondent received a notice from the Petitioner concerning the renewal of the medical license which had been issued on November 22, 1985. Following the receipt of that notice, he executed the necessary paperwork and submitted it to the accountant at the University of Florida who was responsible for paying Respondent's fees for the medical license as an employee of the University of Florida, School of Medicine, within the Department of Orthopedic Surgery. Respondent took no further action to assure that his license was renewed until late March or early April, 1988. It was at that point that the Respondent was made aware that the replica of his medical license that he kept in his wallet reflected an expiration of that license. He made this discovery when attempting to use that replica as a form of identification. At that juncture he reported to Ms. Jeri Dobbs, an employee of the University of Florida, who indicated that paperwork associated with this license may have been destroyed in a fire at Johnson Hall where certain records of the Department of Orthopedic Surgery were kept. Ms. Dobbs' responsibility in the relevant time period under question, encompassed money matters within the Department of Orthopedics. This included the payment of license fees for residents in the University of Florida Department of Orthopedics. The technique was to request a check from the University of Florida and send that check along with the requisite forms to the Department of Professional Regulation. Sometime in November or early December, 1987, a fire occurred in Johnson Hall at the University of Florida. Within that building were found invoices to be paid or checks requested and they were lost in the fire. In November, 1987, Ms. Dobbs had originally requested a check from the finance and accounting office at Johnson Hall to pay for the re-licensure of certain physicians. The names of those physicians are set forth in Respondent's exhibit no. 3, admitted into evidence. The package of paperwork on license renewal related to the named physicians was lost in the Johnson Hall fire. Respondent's name is not found in that list. Nonetheless, the circumstance that occurred with the physicians listed there may have well have occurred to the Respondent and in his conversation in late March or early April, 1988 with Ms. Dobbs he was impressed with the idea that his paperwork on license renewal may have been destroyed as was the situation with those other physicians. The physicians whose names are listed on Respondent's exhibit no. 3 would have had their medical licenses expire on December 31, 1987, as was the case with Respondent's license. In March, 1988, through efforts of Ms. Dobbs, the licenses of those physicians set forth in Respondent's exhibit no. 3 were renewed upon the payment of a $50 reinstatement or penalty fee as required by Petitioner. There is no indication that those persons as listed in Respondent's exhibit no. 3, were ever subject to disciplinary action for practicing medicine with an inactive license as has been the fate of Respondent in the present case, even though it can be fairly inferred that they had been participating as physicians at the University of Florida in the period January 1, 1988 through latter March, 1988 while their medical license had not been renewed before expiration on December 31, 1987. In conversations between Ms. Dobbs and someone associated with the Petitioner, she expressed her concern at having to pay an additional $50 late fee in the face of the circumstance in which records had been lost in the Johnson Hall fire. In this conversation she was not lead to believe that there would be any problem with the practice of those physicians who were on that list found in Respondent's exhibit no. 3. In her testimony, although Ms. Dobbs acknowledges that Respondent's name is not on the list of physicians whose licenses were reapplied for, she also indicates that she could not say for an absolute fact that these names were the only ones whose information on license renewal was lost. Being of the belief based upon his conversation with Ms. Dobbs that the necessary paperwork for renewal had been destroyed in the Johnson Hall fire, Respondent took the initiative to ascertain the appropriate method to rectify the situation of his license renewal. To this end, at approximately the same time period as the discussion with Ms. Dobbs, he spoke with Ms. Faircloth. He explained the circumstances to Ms. Faircloth of his renewal and specifically the idea in which he was persuaded that his renewal papers had been burned up in the fire at the University of Florida. Her instructions to him were that the paperwork would be forthcoming, to fill it out as quickly as possible and that he should not worry that this sort of thing happened all the time. He was not told by Ms. Faircloth that he should not continue in his duties as a resident physician, given the status of his license renewal. Having not heard from Ms. Faircloth within the week of his initial contact with her, he called her a second time. At that point she said that he should have received the materials. A month after the second contact, another call was made from the Respondent to Ms. Faircloth because he had not received the materials. She indicated that by that time the materials should have been received and therefore she was going to send another set of those forms for him to fill out. A further call was made to Ms. Faircloth and she indicated to the Respondent that the forms had been sent out, and sometime in late June or early July, 1988, information concerning the obtaining of his renewed license began to be received by Respondent. Documents pertaining to the activity of gaining a new license may be found within Petitioner's composite exhibit no. 2 admitted into evidence, in particular those portions 2D through 2J. Throughout this process Respondent cooperated and made timely responses to what was asked of him to effectuate these purposes. Finally, effective October 24, 1988, Respondent obtained his renewed license. Throughout this endeavor neither Ms. Faircloth in conversations with Respondent nor anyone else associated with Petitioner indicated that the Respondent should cease his practice pending the issuance of the renewed license. None of the materials that were forwarded to the Respondent for purposes of license renewal had any admonition against his carrying forward his duties as a resident of the University of Florida pending the resolution of this license problem. After returning the necessary materials to obtain his license, Respondent had not heard from the Department of Professional Regulation, so he checked with Jeri Dobbs and was told that the necessary cash had been remitted for renewal. He called someone within the Petitioner's organization and that person confirmed that the check in furtherance of his license renewal fee had been cashed and that it was probably still in the computer that the license had been printed, but probably had not been sent in the mail. According to Barbara Kemp an employee of Petitioner, who has responsibility for processing requests for license renewal, the detailed requirements set forth in Petitioner's composite exhibit 2 are utilized in the instance wherein the license was not renewed in the ordinary period for renewal. Respondent's situation was perceived in that way. Ms. Kemp refers to this as the reactivation of a license and describes this exhibit as being an indication of the materials necessary to reactivate. As Ms. Kemp explained in her remarks, typically the renewal packet is dispatched 60 days prior to the expiration of the license. That would correspond in this instance to 60 days before December 31, 1987. That circumstance, unlike the situation reflected in Petitioner exhibit no. 2 admitted into evidence, does not contemplate the need to document compliance with certain requirements related to license renewal. In the reactivation mode, that documentation as evidenced by items set forth in Petitioner's exhibit no. 2 would be necessary. According to Ms. Kemp, in the instance where there is a belief that the practitioner has been practicing medicine without the benefit of an active license, a memorandum is sent to those persons within the Petitioner's organization who are responsible for considering administrative complaints. This does not usually occur within the first couple of months beyond the period of license expiration. In this instance, that would correspond to the first couple of months beyond December 31, 1987. The reason for not reporting tardiness in license renewal is due to the fact that Petitioner is busy trying to renew a high number of licenses and the computer takes time to catch up and conclude that activity. This describes the time necessary for data to be entered in the computer system. In this instance, Ms. Kemp complained to the investigatory arm of her organization about the Respondent's possible practice without the benefit of a license and that complaint was made on September 16, 1988.
Recommendation Based upon the findings of fact made and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which dismisses this administrative complaint. DONE and ENTERED this 13th day of February, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1990. APPENDIX The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1-8 and all of paragraph 9 save the last phrase are subordinate to facts found. The idea of a supposition by the Board of Medicine that Respondent had withdrawn from the residency program and had become licensed is not crucial to the disposition of this case. Paragraphs 10 and 11 are subordinate to facts found. Paragraph 12 is contrary to facts found. Paragraphs 13-17 are subordinate to facts found. Respondents's Facts Paragraphs 1-9 are subordinate to facts found. Paragraph 10 with the exception of the last sentence is subordinate to facts found. The exact whereabouts of the paperwork necessary for renewal was not established with certainty. Paragraphs 11-20 are subordinate to facts found. Copies furnished: Wellington H. Meffert II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara C. Wingo Associate General Counsel University of Florida 207 Tigert Hall Gainesville, FL 32611 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent's license as a dentist should be disciplined in Florida as a result of having his license revoked in Maryland. If so, what discipline would be appropriate.
Findings Of Fact The following Findings of Fact are determined: Petitioner is the state agency charged with regulating the practice of dentistry pursuant to Section 20.243, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 466, Florida Statutes. Pursuant to the authority of Subsection 20.43(3)(g), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration, hereinafter referred to as the "Agency," to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils or board, as appropriate, including the issuance of emergency orders of suspension or restriction. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 10010. Respondent's address is 6112 Raleigh Street, Apartment No. 1506, Orlando, Florida 32835. Respondent was a licensed dentist in the State of Maryland and other states. On or about August 12, 1999, Respondent's license to practice dentistry in the State of Maryland was revoked. A true copy of the Consent Order which revoked Respondent's Maryland dental license was admitted in evidence as Petitioner's Exhibit One. By letter dated September 28, 1999, Respondent advised the Agency for Health Care Administration, Board of Dentistry, of his revocation in Maryland. Based upon the foregoing, Respondent's license to practice dentistry in the State of Florida is subject to discipline for violating Subsection 466.028(1)(b), Florida Statutes, for having a license to practice dentistry revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of another state, territory, or country. The State of Maryland revoked Respondent's license based upon findings of fact contained in the Consent Order admitted into evidence. The findings conclude that during the period of 1992 to 1998 Respondent engaged in a scheme of performing unnecessary procedures on patients, and training and encouraging dentists who worked for him to do the same, including putting pressure on these dentists to perform unnecessary procedures. The other findings parallel this charge, including performing root canal therapies which were unnecessary; replacing amalgam restorations which did not need to be replaced, which caused the need for root canal therapy and crowns; misleading patients in these regards; and billing for services which were not needed. Respondent freely, voluntarily, and knowingly waived his right to a due process hearing and agreed to the entry of the Consent Order. The findings were based upon the materials and evidence available to the authorities in Maryland. Respondent is licensed in the State of Florida to practice dentistry. Respondent's current license expires on February 28, 2002. Respondent is licensed to practice dentistry in the Commonwealth of Massachusetts and the State of West Virginia. Respondent's license to practice dentistry in those States has been renewed. Respondent is an approved continuing education course provider and instructor, authorized by the Florida Academy of General Dentistry and the National Academy of General Dentistry. Respondent has not been previously disciplined by the State of Florida, Board of Dentistry. Respondent has maintained the continuing education requirements for the states where he is licensed. In addition to those requirements, Respondent has maintained the United States Academy of Dentistry continuing education requirements. The Academy requires seventy-five hours every two years. Respondent testified that he and his family moved to Florida in 1998. Respondent was living in Florida in 1999 when he received notice of the Maryland Complaint. Respondent testified that as a result of his move to Florida the previous year, and due to financial constraints, he could not afford the legal fees and costs necessary to pursue a formal hearing and defend himself against the charges contained in the Complaint. Respondent testified that when he consulted with a Maryland attorney regarding the costs of challenging the Administrative Complaint, he had not been aware of the negative impact it could have on his license in Florida. Respondent notified the State of Florida of the action taken by the Board of Dentistry in Maryland as required by Florida law. Respondent testified that the practice of dentistry is important to him and that in his opinion he did not pose a risk to health, safety, and welfare of the citizens of Florida and that should it be deemed appropriate to place him on probation for a period of time and/or to direct supervision by another dentist be required, he would have no objection to such conditions being placed on his license to practice in Florida. It was Respondent's intention to practice dentistry in a group practice, and he would therefore be in a setting pursuant to which the supervision of another dentist licensed in the State of Florida would be possible. Respondent testified that the Maryland Complaint proceeded directly to a consent agreement, without a full investigation of the charges or the taking of any depositions. Respondent testified that the financial inability to hire an expert witness and proceed to trial with legal counsel led to his decision to enter into a consent agreement. In order to avoid any further litigation, Respondent signed a Consent Order with the State of Maryland, which resulted in the revocation of Respondent's licensee to practice dentistry. The Consent Order granted Respondent the ability to seek reinstatement in five (5) years. Respondent testified that he has been licensed as a dentist for about fifteen years. The Massachusetts Board of Registration in Dentistry received notice of the revocation proceeding in Maryland and filed their own complaint against Respondent. After reviewing all the documentation present in the complaint filed against Respondent by the State of Maryland, Massachusetts determined that the Complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Respondent guilty of violating Subsection 466.028(1)(b), Florida Statutes, and revoking Respondent's license to practice dentistry in the State of Florida. DONE AND ENTERED this 12th day of April, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2001. COPIES FURNISHED: Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Jeff G. Peters, Esquire Jeff G. Peters & Associates 1266 Paul Russell Road Cedars Woods Office Center Tallahassee, Florida 32301-7103 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue By a three Count Administrative Complaint filed August 22, 1987, Petitioner sought to discipline Respondent's medical license. Counts II and III were voluntarily dismissed ore tenus at the commencement of formal hearing and they are therefore dismissed as a matter of law. The remaining Count I alleges violations of Section 458.327(1)(c), Florida Statutes, attempting to obtain or obtaining a license to practice by a knowing misrepresentation and of Section 458.331(1)(a), Florida Statutes, by attempting to obtain, obtaining or renewing a license to practice medicine by bribery, fraudulent misrepresentations or through an error of the Board of Medicine. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Respondent as an adverse witness and introduced deposition testimony of 5 other witnesses. Petitioner had 5 exhibits (including depositions) admitted in evidence. Respondent testified on his own behalf and presented the oral testimony of 4 other witnesses, John C. McCloskey, Dr. John K. Robinson, Dr. William M. Straight, and Hilda Bengochea and the deposition testimony of 1 other witness. Respondent had 5 exhibits (including one deposition) admitted in evidence. The Joint Prehearing Stipulation was admitted as Hearing Officer Exhibit A. The transcript in this cause was duly filed and the parties timely filed their respective proposed findings of fact and conclusions of law, the findings of fact of which have been ruled on in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number 0040981. Respondent's last known address is 555 Biltmore Way, Suite 201, Coral Gables, Florida 33134. On or about May 11, 1982, Respondent submitted an application to the Florida Board of Medical Examiners for licensure to practice medicine in the State of Florida. Based on the application, Respondent was granted licensure by endorsement and was issued Florida Medical License ME 0040981 from the Board of Medicine in September, 1982. On the above-mentioned application Respondent represented that he had attended Universidad Nacional Pedro Henriguez Urena (UNPHU) from January 1975 to January 1979 and that he had attended Universidad Centro de Estudios Technicos Medical School (CETEC) between January 1979 and December 1980. Respondent further failed to include his attendance at Instituto Technologico de Santo Domingo Medical School (INTEC) between approximately October 1979 and June 1980 (approximately 8 or 9 months). Respondent's actual attendance at UNPHU was from January 1975 to June 1979. From June 1979 to October 1979 Respondent was to all intents and purposes on summer vacation. He was in attendance at INTEC from October 1979 to June 1980 and at CETEC from June 1980 to December 1980. All of these medical schools are physically located in the Dominican Republic. In September, 1979 Respondent had applied for a transfer from UNPHU to INTEC. He was accepted in September, 1979 and began his course of study at INTEC in 0ctober, 1979. INTEC required that, in order for Respondent to graduate from that institution, he must repeat a number of courses that he had previously taken and passed at UNPHU. As a consequence, Respondent took approximately six courses (during two academic quarters) at INTEC, which courses he had previously taken and passed at UNPHU. Under the auspices of INTEC, after completing two quarters, Respondent was required for three months, until June, 1980, to do field medical work to assist those in the Dominican Republic countryside who needed medical assistance as a result of hurricanes Frederick and David. Respondent also did clinical rotations at one or two local hospitals in the city of Santo Domingo. He did well at INTEC and was not asked to leave that university. In June 1980, Respondent applied and was accepted at CETEC. CETEC's school of medicine first began its admission process in December 1979 but CETEC did not start its first classes until January, 1980. Respondent was admitted into the M.D. program in June 1980. Respondent never lived on any campus in the Dominican Republic but lived independently in town. He does not recall if he switched residences between institutions. CETEC gave Respondent credit ("convalidated") for the courses he had taken at both UNPHU and INTEC. Petitioner has pointed to no evidence that his convalidation was inappropriate under the circumstances. Respondent's motivation when he transferred to CETEC was that CETEC allowed him to participate in a rare opportunity--an externship program at the University of Miami School of Medicine at Jackson Memorial Hospital in Miami, Florida. Respondent changed his Santo Domingo residence to one in his hometown of Miami when he moved there. He completed his rotations in the United States under the auspices of CETEC. The evaluations from the University of Miami School of Medicine indicated that Respondent did extremely well during these rotations. Respondent graduated from CETEC and was granted a diploma in December, 1980. Subsequently, Respondent applied for, and was accepted and worked in a residency training program in Pensacola, Florida, for three years. The evaluations from his residency indicate that Respondent's performance was well above average and he was appointed as chief resident in his last year of this residency. The application for Florida licensure containing the inaccuracies stated in Finding of Fact 5, supra, was filed during Respondent's year of internship, when he was on call every other night. The application form requested him to list his medical education and to "be specific" and "account for each year". He did not have his records with him in his physical location in Pensacola at the time he discovered that the Florida Board only accepted applications once a year and he had little time in which to meet the time limit for his only possible application for 1982. The inaccuracies of Respondent amount to a wrong date for departure from UNPHU; a wrong date (18 months early) for beginning at CETEC, which date predates CETEC's first medical school class, and complete omission of his INTEC experience. In addition to the speed and stress of the application period and the absence of accurate backup records, Respondent explains the application's inaccuracies by pointing to his contemporaneous belief that he was being accurate and his incorrect perception at that time, based on prior experience, that the question was only seeking the name of the medical school from which he graduated and his date of graduation. He also never considered his INTEC attendance as part of his medical education since it was short term and largely repetitive of previous course work he had successfully completed. Apparently recognizing that the question was ambiguous or at least could be better worded, the Board has since revised its application form to specifically require listing of all schools, clerkships, etc. by date. Dr. John Robinson, M.D., Associate Dean for Student Affairs at the University of Miami Medical School for twenty-one years testified on Respondent's behalf. As part of his duties at the medical school, Dr. Robinson acts as the Registrar who keeps students records and certifies their education. It is common within Dr. Robinson's education, training, and experience that students and physicians alike frequently but unintentionally mistake the dates and places they attend medical school. Based on his personal good opinion of Respondent's past medical background and practice and Respondent's reputation for truth and veracity, it was Dr. Robinson's opinion that the application inaccuracies represented human error of Respondent and common error within Respondent' s experience. Respondent presented testimony of other prominent physicians and lay witnesses in the community who attested to his good character, reputation for truth and veracity, excellent patient care, and community service through his medical practice. Generally, Petitioner did not affirmatively demonstrate any improper motive or establish that Respondent had any intent to conceal or misrepresent his medical education on his application. Nor did Petitioner establish that Respondent had anything to gain by the inaccurate information on his application. The dates given by Respondent were correct to the extent that they indicate the date he began his medical education, the date he ended his medical education, and the medical school (CETEC) from which he graduated and which gave him credit for his work at the two previous schools (UNPHU and INTEC). Dorothy Faircloth, Medical Board Executive Director, confirmed that in 1982 the Board's process was to verify the education of an applicant only from the school which issued his medical degree. Specifically, it was not affirmatively demonstrated that Respondent would not have been licensed had he disclosed his attendance at INTEC and noted the correct dates of his interim medical education. At the time of Respondent's application, the Board had no rule or policy relating to the number of schools an applicant had attended and nothing in the transcripts and official documents of any of the three universities attended by Respondent reflect unfavorably on Respondent. The Board has licensed a number of medical physicians who graduated from CETEC but who previously attended one or more medical schools prior to attending CETEC. Respondent was a bona fide student in attendance at CETEC and graduated in good standing. Except for alleging misrepresentation and fraud in the application, Petitioner has not attacked the thoroughness, efficiency, or efficacy of Respondent's actual education, nor his ability to practice medicine safely. Respondent is presently in private practice with two other medical physicians in Coral Gables, Florida. He has staff privileges at six area hospitals, he has never been charged or accused of malpractice, and he has not, until this case, been investigated by the Board of Medicine or had any action taken against his license. He is also currently licensed in Georgia.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that the Board of Medicine enter a Final Order dismissing Count I against Respondent. DONE and RECOMMENDED this 28th day of January, 1988, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Divisionf Administrative Hearings this 28th day of January, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-0401 The parties' proposed findings of fact (PFOF) are ruled on pursuant to Section 120.59(2), Florida Statutes, as follows: Petitioner's PFOF A. 1. Covered in FOF 1. 2. Covered in FOF 2. 3. Covered in FOF 3. 4. Covered in FOF 4. 5-6. Covered in FOF 5. 7-8. Covered in FOF 11. B. 1-2. Covered in FOF 5. 3-4. Covered in FOF 19. 5. Covered in FOF 9. 6-8. Covered in FOF 10. 9. Rejected as not supported by the record, taken in context. SeeTR 35-36. 10-11. Accepted but unnecessary. Accepted but out of context and not dispositive of any issue at bar. Accepted but unnecessary and not dispositive of any issue at bar. Unnecessary. Unnecessary and not dispositive of any issue at bar. Rejected as stated because it is misleading as to the competent substantial record evidence as a whole and it is not an ultimate FOF. See FOF 19 and 22. Covered in FOF 4. Respondent's PFOF 1. Covered in Substance in FOF 2. 2-3. Covered in FOF 23. 4. Covered in FOF 3-4. 5-6. Covered in FOF 6. Covered in FOF 6-7. Covered in FOF 6-8. Covered in FOF 9. Subordinate, and also not clear from the record. The Respondent could just as easily mean that several different professors and not a single professor taught him at INTEC. 11-12. Covered in FOF 10. Covered in FOF 11. Covered in FOF 13. Covered in FOF 14. Covered in FOF 15. Covered in FOF 16. 18. Covered in FOF 17. 19. Covered in FOF 18. 22-23. Covered in FOF 19. 24. Covered in substance in FOF 19. 25-27. Cumulative. 28-29. Covered in FOF 19. 30. Covered in Substance in FOF 19. 31. Except as cumulative or subordinate, covered in FOF 19. 32. Covered as a conclusion of law. 33. Covered in FOF 19. 34. Unnecessary and not dispositive of the single count of the Administrative Complaint remaining at issue. 35. Rejected as argument of counsel. 36-39. Covered in FOF 20. 40. Covered in substance in FOF 20. 41-46. Except as subordinate, covered in FOF 21. 47-49. Unnecessary, but see FOF 21. 50-51. Except as subordinate, covered in FOF 21. 52. Unnecessary. 53-56. Covered in FOF 22. 57-58. Unnecessary and subordinate. 59 . Covered in FOF 22. 60. Covered in substance in FOF 19. 61-69. Unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Peter S. Fleitman, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert S. Turk, Esquire Suite 3400, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds ! The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:38 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7 day of Alauacey , 2014. Elizabeth Duddk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this t? ay of feLyruc cys , 2014. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Suzanne Suarez Hurley, Esq. Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Corinne Porcher, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, FL. 32308 (U.S. Mail) Lynne Quimby-Pennock Administrative Law Judge Brandia Presha, Owner/Administrator Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue The following issues of fact were considered: Did the Respondent aid, assist, procure, or advise an unlicensed person to practice medicine? Did the Respondent delegate professional responsibilities to persons when he knew or had reason to know that said persons were not qualified by licensure to perform them? Did the Respondent presign prescription forms? Both parties submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.
Findings Of Fact The Respondent, Albert P. Oteiza, is licensed to practice medicine and surgery in the State of Florida and has been so licensed at all times relating to the charges in the Administrative Complaint. The Respondent was president and director of the Union Latina Association, Inc. (the Association), located at 1313 Southwest First Street, Miami, Florida. The Respondent was paid by the Association, which provided medical services to patients who were members of the Association. The Respondent practiced at Clinical Union Latina (the Clinic), located at 1313 Southwest First Street, Miami, Florida, and was the medical director of the Clinic. The Respondent was not an officer or director of the Clinic. The president of the Clinic was Rigoberto Garcia, and the business manager was Christian Carmona. Florencio Sanchez-Lopez was employed as a physician's assistant at the Clinic by Christian Carmona, who assigned Sanchez-Lopez's duties. Sanchez-Lopez was not a licensed physician and was not a certified physician's assistant. Sanchez-Lopez admitted seeing and treating patients at the Clinic. Sanchez- Lopez saw those patients who were in serious condition in the presence of the Respondent. Those patients who were not in serious condition, Sanchez-Lopez saw without the Respondent being present, and Sanchez-Lopez prescribed treatment and medications for these patients. Sanchez-Lopez examined and prescribed medications and treatment for Ralph Nunez, an investigator for the Board of Medical Examiners, in the manner Sanchez-Lopez had admitted to examining and prescribing for other patients. Valerio Matta was employed as a physician's assistant at the Clinic by Carmona, who assigned Matta's general duties. Matta was not a licensed physician or a certified physician's assistant. Matta saw patients at the Clinic, examining them and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. Matta also admitted that he had performed minor surgery on patients, but only when the Respondent was present in the Clinic. Carlos Manuel Rodriguez-Murgia was employed as a physician's assistant at the Clinic by Carmona, who assigned Rodriguez-Murgia his general duties. Rodriguez-Murgia was not a licensed physician or certified physician's assistant. Rodriguez- Murgia saw patients at the Clinic, examining and prescribing medications and treatment for them without the presence of a licensed physician, as he did with Georgina Jorge, an investigator with the Department of Professional Regulation. The acts performed by Sanchez-Lopez, Matta, and Rodriguez-Murgia all constituted the practice of medicine. However, these acts did not exceed the acts which could have been performed by a physician's assistant. The Respondent was aware or should have been aware that Sanchez-Lopez, Matta, and Rodriguez-Murgia were engaged in seeing patients at the Clinic and performing acts which constituted the practice of medicine. Carmona was deceased at the time of the hearing. Garcia, president of the Clinic, outlined Carmona's duties. Carmona was responsible for having Sanchez-Lopez, Matta, and Rodriguez-Murgia certified as physician's assistants. All three men confirmed that Carmona represented to them they would be licensed and they were "legal" to perform their duties. Sanchez-Lopez, Matta, and Rodriguez-Murgia could not swear that it was the Respondent's signature on the prescriptions they used or that they had seen the Respondent sign the prescriptions. There were other licensed physicians who worked at the Clinic.
Recommendation Having found the Respondent guilty of three counts of violating Section 458.331(1)(w), Florida Statutes, as alleged in the Administrative Complaint, it is recommended that the Board of Medical Examiners suspend the license of the Respondent, Albert P. Oteiza, for a period of 12 months and assess a civil penalty against him of 3,000. DONE and RECOMMENDED this 17th day of October, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Blas E. Padrino, Esquire 2355 Salzedo, Suite 309 Coral Gables, Florida 33134 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. Case No. 83-122 ALBERT P. OTEIZA, M.D., License No. 20879 Respondent. /
