The Issue Whether Respondent violated Subsections 458.331(1)(g), 458.331(1)(x), and 455.667(4) Florida Statutes, and Rule 64B8- 10.002(4), Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact Dr. Linda M. Boczar is and has been at all times material to this proceeding a licensed physician in the state of Florida, having been issued license number ME 0041564. In 1983, Dr. Boczar began practicing medicine in Sarasota, Florida. Due to her own illness and the illness of her husband, Dr. Boczar closed her medical practice in Sarasota in April 1999. In mid-March, 1999, she began to inform some of her patients that she was closing her practice. After closing her practice, she spent a short time in Indiana and then went to work for a physician in Moultrie, Georgia, doing office work until her Georgia medical license was granted. She remained in Georgia from May to December 1999. Dr. Boczar was unaware of the rules promulgated by the Department, which govern the retention and disposition of patient records when a physician is closing her practice. She was aware that the American Medical Association did provide guidelines for dealing with patient records when closing a practice. When Dr. Boczar closed her practice, she hired her former receptionist to continue to answer the telephone and respond to patients' requests for records. During April, May and part of June 1999, the receptionist was supposed to be spending 20 to 30 hours per week with these duties. It came to Dr. Boczar's attention that the receptionist was not performing her duties, and Dr. Boczar fired her. Dr. Boczar took the patient records to Georgia. Beginning in August 1999, Dr. Boczar hired her son to respond to patients' requests for records. In October 1999, her son discovered that approximately 20 to 30 requests for patient records were in the bottom of a box of files. Dr. Boczar did not know whether the receptionist had responded to these requests. Dr. Boczar sent a letter to each of the patients whose requests were discovered in October, advising them that the requests had been recently discovered. Each patient was requested to advise whether she had received a copy of her record and, if not, whether she wanted a copy for a $20 fee for copying and postage. The patients were advised that they would receive their records within seven to ten days. Dr. Boczar had a notice published in the Sarasota Herald-Tribune on October 25, 1999, which stated: Patients of Dr. Linda Morrison-Boczar can continue to receive their medical records by sending a WRITTEN REQUEST to the office address of 1215 East Avenue, Suite 303, Sarasota, Fl 34239 with a fee of $20.00 for retrieving, copying, and mailing the records. In January, 2000, Dr. Boczar moved to Indiana, where she is currently practicing. In mid-summer of 1999, J.D., a patient of Dr. Boczar, called Dr. Boczar's office to schedule an appointment for her annual examination. When J.D. called, she reached a recording which advised that Dr. Boczar had retired due to ill health and that patients desiring their medical records should write to a post office box in Sarasota and request their records. The recording did not indicate that the patients should include a payment for the costs of copying and mailing the records. On July 9, 1999, J.D. wrote to Dr. Boczar at the address given in the telephone recording and requested her medical records. She stated that she needed the records by August 8, 1999, which was the date of her appointment with another physician. By September, J.D. had not received her records. She tried to contact Dr. Boczar's office and reached a recording, which stated that the telephone had been disconnected. On October 19, 1999, J.D. filed a complaint with the Agency for Health Care Administration (AHCA), complaining that she had not received her medical records from Dr. Boczar. Sometime after she filed her complaint, J.D. received a form letter with Dr. Boczar's letterhead, explaining that because an employee of Dr. Boczar had failed to perform her job, there may not have been a response to some of the requests for medical records. J.D. was told that her request had been found in a box of files. She was advised to send $20 to Dr. Boczar's old office address in Sarasota if she wanted her medical records. The letter was unsigned. By letter dated November 19, 1999, J.D. wrote to the address given on the form letter and stated that she was not going to send $20 to "a post office box, an empty office on East Avenue, nor an anonymous person who does not sign their letters or provide a phone number for verification." She asked that a copy of her medical records be sent to her new physician. J.D. never received her medical records from Dr. Boczar. L.B. became Dr. Boczar's patient in February 1999, when Dr. Boczar performed a gynecological exam on L.B. and prescribed Prempro, a combination of estrogen and progesterone. Dr. Boczar explained that taking estrogen without progesterone could raise the possibility of uterine cancer. L.B. was not happy taking Prempro because she experienced pregnancy-like symptoms while taking the drug. In June or July 1999, L.B. attempted to contact Dr. Boczar by telephone for a follow-up examination, but reached a recording which advised her that Dr. Boczar had terminated her practice because of illness and instructed her to send a written request for her medical records. L.B. sent a letter requesting her medical records from Dr. Boczar. Between July 1999 and September 6, 1999, L.B. also went by Dr. Boczar's office to get her records, but the office was not open. There was no sign on the door indicating the office was closed and no sign advising patients on how to obtain their medical records. L. B. still had received no response from Dr. Boczar. On September 6, 1999, L.B. filed a complaint with AHCA concerning Dr. Boczar. On October 18, 1999, Dr. Boczar sent a letter to AHCA with a copy to L.B., requesting that L.B. send $13.55 for her medical records. L.B. refused to pay the $13.55 and never received her records. S.W. had been treated by Dr. Boczar in 1995 and returned for an annual examination on January 28, 1999. Shortly after the appointment, S.W. was contacted by Dr. Boczar's office and told that she had severe dysplasia. She returned for treatment on February 22, 1999, and again on March 9, 1999. After her treatment on March 9, 1999, she experienced severe bleeding and called Dr. Boczar's nurse, who advised S.W. that the bleeding was normal and to return for a follow-up visit in three months. S.W. had an appointment for a follow-up visit on June 10, 1999. When S.W. went to Dr. Boczar's office for the appointment, she discovered that the office was closed. There was no sign on the door or anywhere on the office's exterior indicating how Dr. Boczar could be contacted. S.W. called the office and reached a recording that stated that Dr. Boczar had closed her practice due to illness and that patients could obtain their medical records by sending a written request. On June 10, 1999, S.W. sent a written request for her medical records. The telephone recording did not state that she had to send money to get the records; thus, she did not include any money with her request. If she had been told that she needed to send money in order to obtain the records, she would have sent the money with the request. In her request, S.W. advised that she urgently needed to have the records because she was going to see another doctor for a follow-up on the treatment given by Dr. Boczar in March 1999. After receiving no response from Dr. Boczar, S.W. filed a complaint with AHCA on September 24, 1999. On December 22, 1999, S.W. received a letter from Dr. Boczar stating that S.W. needed to send $29.55 in order to receive her medical records. S.W. was advised that there were 44 pages of records. S.W. sent money for the records in December 1999. In September 2000, S.W. received 24 pages of her medical records from Dr. Boczar. On December 6, 1999, L.W.B. attempted to contact Dr. Boczar for an annual examination. When she telephoned Dr. Boczar's office, she reached a recording that the telephone had been disconnected. L.W.B. contacted the two local hospitals and the Sarasota Medical Society but was unsuccessful in learning how she could contact Dr. Boczar. On January 2, 2000, L.W.B. signed a complaint with AHCA concerning Dr. Boczar. Up to that time, L.W.B. had not received any word from Dr. Boczar about the closing of the medical practice or a method for obtaining medical records. She provided a medical release to AHCA and a medical release to her physician for the purpose of obtaining her records. She does not know if her doctor requested the records from Dr. Boczar. At some point, Dr. Boczar did receive a written request for L.W.B.'s medical records. Dr. Boczar sent the records to L.W.B. in September 2000 and did not charge L.W.B. a fee for copying the records because L.W.B. had been a long- time patient. L.W.B. received no request from Dr. Boczar for payment for the records. Prior to her deposition being taken on June 8, 2001, Dr. Boczar called L.W.B. and told L.W.B. that she was calling from AHCA and that L.W.B. should call Kelly Reynolds, an investigator with AHCA, and tell him that she had received her records and whether she had paid for them. On September 27, 2000, L.W.B. sent a letter to AHCA stating that she had received her records and was going to drop the complaint. On April 9, 2000, Dr. Boczar notified the Department that her new address was Post Office Box 35, Moultrie, Georgia. Prior to this address change, Dr. Boczar had advised the Department that her address was 1215 East Avenue, Suite 303, Sarasota, Florida. Dr. Boczar failed to notify the Department within 30 days of closing her office. By letter dated May 23, 2001, the Agency for Health Care Administration advised Dr. Boczar as follows: Please be advised that the Probable Cause Panel for the Board of Medicine met on May 11, 2001, to consider the complaint which had been filed against you in the above-referenced case [Case No. 2000- 08415]. After careful consideration of the complaint and the investigative report, the Panel dismissed the case. However, the Panel directed the issuance of this Letter of Guidance. The panel requested that you be advised of the following provision of the Practice Act, contained in Chapter 458, Florida Statutes: Section 458.331(1)(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. The panel directed that the Letter of Guidance be issued because you relocated your practice without complying with the notice requirements in Rule 64B8-10.002(4), Florida Administrative Code. Please be advised that a Letter of Guidance is not considered to be disciplinary action; instead, it is an alternative to disciplinary action provided for by the legislature. Furthermore, this Letter of Guidance is not considered to be a finding of guilt. The Probable Cause Panel is only empowered to make a finding of probable cause. Due to the Probable Cause Panel's decision to dismiss this case without a finding of probable cause, this case remains confidential. At the final hearing, Dr. Boczar waived confidentiality relating to Case No. 2000-08415. No evidence was presented concerning the factual basis for Case No. 2000- 08415 other than as set forth in the Letter of Guidance dated May 23, 2001. A partial transcript of the meeting of the Probable Cause Panel of the Florida Board of Medicine on May 11, 2001, was entered into evidence as Petitioner's Exhibit The transcript indicated that no Tab C-20 was considered by the panel; however, no evidence was presented that Tab C-20 involved a complaint against Dr. Boczar or related to the Letter of Guidance dated May 23, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Linda M. Boczar violated Rule 64B8-10.002(4), Florida Administrative Code, and, thus, Subsection 458.331(1)(x), Florida Statutes (1999); finding that Dr. Linda M Boczar violated Subsection 455.667(4), Florida Statutes (1999); and, thus, Subsection 458.331(1)(g), Florida Statutes (1999); issuing a public reprimand; imposing an administrative fine of $250, and assessing costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 6th day of February, 2002. COPIES FURNISHED: John E. Terrell, Esquire Shirley J. Whitsitt, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James Boczar, Esquire Linda M. Boczar, M.D. Post Office Box 490 Knox, Indiana 46534-0490 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 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, a medical doctor licensed to practice in the State of Florida, committed the offenses set forth in the Administrative Complaint, and, if so, the penalties that should be imposed.
Findings Of Fact Respondent has worked for approximately eight years in hospital emergency rooms since the completion of his residency. Respondent has been employed by Emergency Medical Services Association, a group that provides emergency medical services to hospitals, for approximately eight years. Respondent has worked in the largest hospitals in Dade County and has treated thousands of patients without ever having a malpractice claim or complaint filed against him because of his activities as an emergency room physician. Respondent looked for additional employment in late 1987 and early 1988 because he needed to increase his income to support his three children and family, including his parents since his father was ill and had just had open- heart surgery. Respondent found his job with the Institute through an advertisement in the newspaper. The director of the Institute was a Dr. Seedarnee, who was a research immunologist. Respondent testified that he was impressed with Dr. Seedarnee's professional image, the number of diplomas he had on his wall, and that he had affiliations at various hospitals and worked with a number of physicians. Respondent knew that Dr. Seedarnee was not a physician and that the "hemavision" procedure used by Dr. Seedarnee was not an acceptable medical procedure. Respondent was told by Dr. Seedarnee that Respondent's responsibilities would solely be to see patients and to conduct physical examinations on patients. Dr. Seedarnee showed Respondent how the "hemavision" process worked and used the process with patients who came into the office. Respondent was expected to work at the Institute from approximately 9:00 a.m. to either 4:00 or 5:00 p.m. While employed at the Institute, Respondent was also working at Memorial Hospital Emergency Room from midnight until 8:00 a.m. Respondent was working or traveling to work between 16 and 20 hours each work day. Respondent received a salary at the Institute and did not receive any commission, profit sharing, or bonus. Respondent knew that he was one of only two licensed physicians at the Institute. Respondent's agreement with the Institute was that the office staff would handle the actual paperwork and that all remuneration would go directly to the Institute. Respondent was not directly involved in the billing procedures or process of the Institute. Respondent did not see or review any health insurance claim forms, he did not sign any health insurance claim forms, he never received any checks payable to him from any insurance providers, and he was not involved in collecting any money at the Institute. The signatures on the health claim forms in Petitioner's Exhibits 4, 5, and 6 that appear to be those of the Respondent were not signed by the Respondent. Respondent failed to properly supervise or prevent the insurance claims from being filed by the Institute. Respondent was not aware of the amounts being billed or the exact services represented by the billings, but he knew that the patients involved in this proceeding would be requested by the Institute to pay for services rendered to them and he knew that the payment would be made personally by the patient or by an insurance carrier. Respondent further knew that the patients were being required to pay for the "hemavision" process and he knew or should have known that the "hemavision" process was not recognized in any field of medical practice. Respondent permitted his name, title, and provider number to be used by his employer to bill for the unauthorized "hemavision" process. Respondent thereby enabled, authorized, and assisted others to prepare and/or submit fraudulent insurance claims. Dr. Seedarnee, not being a licensed provider, was unable to prepare, sign, and submit a medical license claim for reimbursement for the "hemavision" process performed by Dr. Seedarnee on Respondent's patients without Respondent's knowledge and consent. Respondent admitted that the medical histories he performed on patients at the Institute were cursory and inadequate. Despite knowing that these medical histories were cursory and inadequate, Respondent permitted the Institute to bill his patients and their insurance carriers for these services. After complaints were filed relating to the operation of the Institute, Respondent voluntarily resigned his position with the Institute. Since Respondent left the Institute, his employment has been exclusively as an emergency room physician. Respondent expressed remorse for his role in occurrences at the Institute. Respondent testified that he has learned from this experience and has the desire to educate others, such as medical students, about the scope of responsibilities of physicians in order to help prevent students from making some of the same mistakes Respondent made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which adopts the findings of fact contained herein. The Final Order should find that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count I of the Administrative Complaint. The penalty for this violation should be the issuance of a letter of reprimand, the assessment of an administrative fine in the amount of $2,500, and the imposition of a two year term of probation under indirect supervision. The Final Order should find that Respondent violated the provisions of Section 458.331(1)(k), Florida Statutes, as alleged in Count II of the Administrative Complaint. The penalty for this violation should be the assessment of an administrative fine in the amount of $2,500, and the imposition of a two year term of probation under indirect supervision. The Final Order should find that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count III of the Administrative Complaint. The penalty for this violation should be the issuance of a letter of reprimand and the assessment of an administrative fine in the amount of $250. It is further recommended that the terms of probation recommended above run concurrently and contain such terms and conditions as the Board of Medicine deems appropriate. DONE AND ENTERED this 24th day of March 1994 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 24th day of March 1994. COPIES FURNISHED: Kenneth J. Metzger, Esquire Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ronald S. Lowy, Esquire Sharon L. Christenbury, Esquire Law Offices of Ronald S. Lowy Barnett Bank Building 420 Lincoln Road, PH/7th Floor Miami Beach, Florida 33139 Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Acting General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK 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 12th day of September 1994.
The Issue The issue in the case is whether the Petitioner received appropriate compensation for telephone service interruptions and whether the Respondent and the Intervenor have acted appropriately under applicable statutes and administrative rules in resolving the Petitioner’s complaint.
Findings Of Fact Calvin "Bill" Wood resides on Schaefer Lane in Lake Wales, Florida, and receives local telephone service from GTE. GTE is a telecommunications service provider doing business in Florida and regulated by the PSC under the authority of Chapter 364, Florida Statutes, and Chapter 25, Florida Administrative Code. In May 1997, the Petitioner began to experience telephone service problems, including line static and service outages. According to GTE records reviewed by PSC personnel, GTE responded to the Petitioner’s reports of telephone service problems. GTE attempted to identify and repair the causes of the problems over an extended period of time. The GTE records, as reviewed by the PSC personnel, indicate that the Petitioner’s problems continued and that he frequently reported the trouble to GTE. GTE’s "trouble reports" and summaries characterize the Petitioner’s service problems as "miscellaneous" and "non-service affecting" at times when the Petitioner’s complaint was a lack of dial tone. The inability to obtain a dial tone is a service- affecting problem. A GTE installation and repair manager testified that technicians will identify a problem as "miscellaneous" and "non- service affecting" when they are unable to identify the cause of a problem, or when the problem is intermittent and is not active at the time the technician tests the line. Notations on records suggest that frequently the problems were not apparent at the time of testing. In any event, the Petitioner’s telephone service problems continued through the summer and fall of 1997. By the end of 1997, the Petitioner complained that one of his neighbors was often unable to call him. On December 30, 1997, the Petitioner filed a complaint with the PSC Consumer Affairs Division, alleging that his telephone service was inadequate, specifically that the neighbor could not call him, and that his phone did not ring. The Petitioner’s complaint was tracked in the PSC Consumer Affairs Division computer system. At the time the complaint was filed, the PSC complaint tracking systems were not integrated between PSC divisions, resulting in individual consumer complaints being routed to various PSC personnel who were unaware that the consumers problems were already being investigated by other PSC personnel. PSC consumer complaints are now handled by an integrated docketing system. Beginning after the filing of the complaint of December 30, 1997, the PSC began to inquire into the Petitioner’s telephone problems. In response to contact from the PSC, GTE acknowledged that service problems existed and indicated that lightning possibly damaged the Petitioner’s telephone service. GTE stated that the main cable providing service to the Petitioner would be replaced. By letter dated February 3, 1998, the Petitioner advised GTE and the PSC that he would withhold payment of his telephone bill until such time as his phone service was functioning and the neighbor could call him without problem. On February 11, 1998, GTE made repairs to the Petitioner’s "drop wire" and connection. GTE also examined the Petitioner’s owner-supplied telephone equipment and determined that it was defective. The Petitioner agreed to acquire another telephone. On February 12, 1998, GTE personnel visited the Petitioner’s home to determine whether the service had been restored. At that time, the Petitioner asked them to check with the neighbor whose calls were not being received by the Petitioner. On February 12, 1998, GTE personnel visited the neighbor and determined by observation that the neighbor’s calls to the Petitioner were being misdialed. On February 26, 1998, GTE installed new cable to serve the Petitioner but were unable to connect his telephone to the new cable because GTE’s "serving cable pairs" were defective. Weather-related problems prevented the company from correcting the defective "serving cable pair" problem on February 27, and apparently on any subsequent day prior to March 9, 1998. GTE provided a credit of $1.78 on the Petitioner’s February 1998 telephone bill for the time the phone was out of service. GTE also provided a $25 credit as part of GTE’s "Service Performance Guarantee." The "Service Performance Guarantee" provides a $25 credit to a GTE customer when the customer-reported service issue is not resolved within 24 hours. On March 9, 1998, GTE personnel visited the Petitioner and found that earlier in the day, the Petitioner’s home had been destroyed by a tornado. The GTE personnel testified that they advised the Petitioner to contact them when his electrical service was restored and the telephone would be reconnected. The Petitioner testified that he told the GTE personnel he intended to live in a camper trailer he would place next to his house and testified that the GTE personnel told him they would return to connect his phone service. The GTE personnel did not hear from the Petitioner and did not immediately return to connect phone service. The Petitioner did not contact GTE to advise that his electrical service had been restored. The next day, March 10, 1998, GTE notified the Petitioner that his telephone service would be disconnected for nonpayment of an outstanding balance in excess of $600. The GTE notice established a deadline of March 19, 1998, for payment. On March 11, 1998, the Petitioner requested that his calls be forwarded to his neighbor’s home. GTE complied with the request and began forwarding the Petitioner’s calls on March 13, 1998. On March 23, 1998, GTE personnel attempted to visit the Petitioner and ascertain the situation, but the Petitioner’s private drive was barricaded. The GTE representative assumed that the condition of the property was not suitable for reconnection of telephone service. By letter to the PSC dated March 25, 1998, the Petitioner complained that the phone service to his property had not been restored. On March 25, 1998, the Petitioner’s telephone service was disconnected for nonpayment of the outstanding balance on his account. On March 27, 1998, GTE advised the Petitioner that his telephone service would be "permanently" disconnected if the outstanding balance of $664.02 were not paid. GTE provided another $25 SPG credit on the Petitioner’s March 1998 bill. On April 2, 1998, the Petitioner informed the PSC that he had no telephone service and requested an informal conference to resolve the matter. The Petitioner offered to escrow his telephone payments until his service was repaired to his satisfaction. On the same day, GTE notified the PSC that the Petitioner had the outstanding unpaid balance. Because the Petitioner’s complaint was still pending and the PSC had not proposed a resolution, the Petitioner’s request for an informal conference was premature. In subsequent letters, the Petitioner continued to seek an informal conference prior to completion of the investigation. The PSC did not act on the requests. There is no evidence that the Petitioner disputed the amount due on his telephone bill. The Petitioner’s decision to withhold payment of the bill was service-related. The PSC does not have authority to prevent a service provider from disconnecting service for nonpayment of undisputed telephone service charges. On April 4, 1998, GTE "permanently" disconnected the Petitioner’s telephone service for nonpayment. By letter to the PSC dated April 6, 1998, the Petitioner requested assistance in obtaining telephone service, asserting that a heart condition required access to a telephone. There is no evidence that prior to April 6, 1998, the Petitioner had advised either GTE or the PSC of any existing heart condition. By rule, GTE is required to maintain customer access to an emergency 911 communications system except where telephone service is "permanently" disconnected. Other than after the "permanent" disconnection of his telephone service, there is no evidence that the Petitioner lacked access to the emergency 911 system. By letter to the PSC dated April 8, 1998, the Petitioner alleged to the PSC that several of his neighbors were having telephone problems and were, for a variety of reasons, unable to contact the PSC to complain. The Petitioner attempted to involve a number of his neighbors in his complaint, but none of the neighbors filed a complaint with the PSC, and there is no evidence that the neighbors complained to GTE about any service problems. There is no evidence that any resident of Schaefer Lane filed a telephone service complaint with the PSC. There is no evidence that the Petitioner is authorized to represent his neighbors or neighborhood in this matter. On April 17, 1998, GTE offered to reconnect the Petitioner’s local telephone service and block all toll calls if he would agree to arrange payment of the outstanding balance. The Petitioner apparently refused the offer, but on April 20, 1998, GTE reconnected the local service and activated the toll block. GTE waived the $55 reconnection charge and suspended collection procedures pending resolution of the complaint the Petitioner filed with the PSC. On May 9, 1998, the Petitioner made payment of the outstanding balance of his telephone bill. The toll block should have been removed from the Petitioner’s telephone service at that time, but it was not. On May 13, 1998, the Petitioner notified the PSC that the toll block remained on his phone. The PSC notified GTE that the toll block was still active. GTE apparently did not act on the information. On May 29, 1998, the PSC tested telephone lines at the Petitioner’s home and at the home of the calling neighbor. The technicians detected no telephone line problem in any location. The PSC technician attempted to complete numerous calls from the neighbor’s home to the Petitioner. The technician’s calls were completed without incident. The neighbor was asked to dial the Petitioner’s number. The PSC technician observed that the neighbor misdialed the Petitioner’s telephone number on each of three attempts. GTE eventually provided and installed a "big button" telephone for the neighbor. GTE also provided speed-dialing service at no charge to the neighbor and instructed him on use of the service. The Petitioner asserts that the PSC technician violated PSC administrative rules by traveling with GTE personnel to the Petitioner’s and neighbor’s homes on May 29. The evidence fails to establish that the transportation constituted a violation of any administrative rule. By June 1, 1998, with the toll block still activated, the Petitioner filed a complaint with the PSC concerning the service disconnection and the toll block. The June 1, 1998, complaint was assigned to the Telecommunications Division and the PSC again relayed the complaint to GTE. GTE removed the toll block on June 4, 1998. At this point, the PSC realized that the Petitioner had filed two separate complaints and the agency combined the investigations. It is unclear as to the reason GTE did not remove the toll block after the PSC relayed the matter to them on May 13, 1998; but there is no evidence that it was done to retaliate against the Petitioner. Despite the toll call block, the Petitioner was able to make long distance calls by using a calling card. After GTE removed the block, GTE credited the Petitioner with the difference between the cost of the calls made using his calling card and the cost of the calls that would have been made using the regular long distance carrier had the toll block not been in place. GTE issued service credits of $2.14 and $1.65 on the Petitioner’s June bill for out-of-service claims. The Petitioner asserted that there were times when callers were unable to reach him, but the evidence fails to establish that failed calls were the result of service problems. The Petitioner had numerous telecommunications and computer devices attached to the line. Use of devices, including computers and fax machines, can result in an incoming call not being completed. The Petitioner also acknowledges that he sometimes does not answer the telephone. The PSC technician testified that as of May 29, 1998, he considered the service problem resolved. Tests on the Petitioner’s telephone lines revealed the lines to be in working order. Numerous calls placed to the Petitioner from the neighbor’s house and other locations were completed without incident. In mid-June 1998, the technician recommended that the case be closed. By letter dated June 17, 1998, the PSC advised the Petitioner of the informal resolution of the case and advised him of his right to request an informal conference. On August 18, 1998, the Petitioner informed the PSC that the neighbor was able to complete calls to him and considered that matter resolved, but asked for an informal conference. The PSC staff, attempting to negotiate a settlement of the dispute, did not convene an informal conference until May 12, 1999. The matter was not resolved at the May 12, 1999, conference. On July 15, 1999, the PSC staff filed its recommendation for action at the PSC’s Agenda Conference on July 27, 1999, at which time the PSC referred the dispute to the Division of Administrative Hearings. The Petitioner has previously asserted that he is entitled the $25 SPG credit for each time he called GTE to complain about his telephone service. There is no evidence that the Petitioner is entitled to any SPG credits beyond those he has already received. The evidence establishes that the Petitioner’s service- related problems were intermittent, required extensive "troubleshooting" to locate, and were repaired as soon as was practicable. The Petitioner’s monthly local telephone service charge is $10.86, or approximately 36 cents per day. The PSC staff calculates that the Petitioner is due a maximum "out-of-service" credit of $16.46 allowing for a period of approximately 46 days of credit. GTE has issued total credits in the amount of $110.57, including two $25 SPG credits and waiver of the $55 reconnect fee. Subtracting the $105 attributable to the two SPG’s and the reconnect fee credit from the total of $110.57 leaves the remainder of $5.57, which is the total of the three "out-of-service" credits ($1.78, $1.65 and $2.14) the Petitioner has received. Based on the PSC staff determination that the Petitioner was due a maximum of $16.46 in "out-of-service" credit, it appears that the Petitioner should receive an additional credit of $10.89.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Public Service Commission enter a final order requiring GTE to provide a credit of $10.89 to the Petitioner. DONE AND ENTERED this 10th day of May, 2000, in Tallahassee, Leon County, Florida. 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 10th day of May, 2000. COPIES FURNISHED: Calvin "Bill" Wood 10577 Schaefer Lane Lake Wales, Florida 33853 Kimberly Caswell, Esquire Post Office Box 110, MC FLTC0007 Tampa, Florida 33601-0110 Donna Clemons, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanca Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue The issue is whether Petitioner had just cause to discipline Respondent by suspending his employment without pay as a tenured professor for six months, by prohibiting him from engaging in any activities with outside businesses, and by withdrawing existing outside activities exemptions or approvals.
Findings Of Fact Respondent is a Board Certified medical doctor. Respondent specializes in neurology and clinical neurophysiology. He has special expertise in epilepsy and clinical neurophysiology. Respondent has performed research in the area of epilepsy. At all times material to this case, UFBOT employed Respondent. Respondent also worked for the Malcolm Randall Veterans Administration (VA). Respondent had a laboratory at the McKnight Brain Institute on the University of Florida campus. He was a tenured professor on the faculty of the Biomedical Engineering Department. He also held joint appointments as Professor of Neurology and Professor of Psychiatry, as well as an affiliate appointment as Professor of Neuroscience. Respondent was a member of the University of Florida's Graduate Faculty. An Institutional Review Board (IRB) is an internal review board that has the obligation to provide oversight for all research activities involving human subjects. IRB-01 is one of four review boards affiliated with the University of Florida. IRB-01 is responsible for oversight of research at the Health Science Center. IRBs are charged with the responsibility of complying with federal regulation for the protection of human subjects found in 45 C.F.R. Part 46, Protection of Human Subjects. This regulation is known as the "Common Rule." Beginning in 1993, Respondent was the principal investigator (PI) on a research protocol entitled "Dynamical Studies in Temporal Lobe Epilepsy," hereinafter referred to as Protocol 447-1993. IRB-01 approved Protocol 447-1993. Pursuant to Protocol 447-1993, data in the form of video-taped EEGs and clinical records were collected from 18 patients with intractable epilepsy. Some of the data was called "scalp" data, because it was collected via electrodes attached to the patients' scalps. The rest of the data was called "depth" data, because it was collected during surgical procedures. The informed consents in Protocol 447-1993 informed the subjects that researchers would be reviewing their medical records to gather information about their epilepsy. According to the informed consents, researchers would analyze brain wave recordings that were performed on the patients as part of the diagnostic evaluation, store the recordings on a computer, and analyze the recordings with new mathematical techniques. The informed consents also advised the subjects that their personal information would not appear in print or be presented in a manner that could identify them. The informed consents for subjects enrolled in Protocol 447-1993 provided that the University of Florida and the VA Medical Center would protect the confidentiality of the subjects' records to the extent provided by law. Subjects were also informed that the National Institutes of Health (NIH) as the Study Sponsor, the Food and Drug Administration (FDA), and IRB-01 had the right to review the records. Protocol 447-1993 continued with IRB-01 approval for several years. The protocol expired in May 2002. It is not permissible for a researcher to use data from an expired protocol in a later protocol without additional approval from the IRB. In 2001, Respondent applied for and received approval from IRB-01 for a research protocol entitled "Bioengineering Research Partnership," identified as Protocol 430-2001 (BRP Protocol). Respondent was the PI for the new protocol. The proposal for the protocol described the research procedures as a plan to develop and test automated computer-based algorithms for analyzing the spatiotemporal dynamical properties of multi- channel EEG recordings to determine the probability of an epileptic seizure. The computer algorithms were to be tested and evaluated on three (3) data sets. The first dataset was comprised of a group of long-term EEG recordings that were obtained for clinical purposes in patients with medically intractable epilepsy. By memorandum dated September 18, 2001, Respondent informed the IRB-01 Vice Chairman that the study under which the EEGs were collected for the BRP Protocol was another IRB-01 approved protocol, identified as Protocol 22-2000. Protocol 22- 2000 did not include data from Protocol 447-1993. Respondent did not reference data from Protocol 447-1993 in his September 18, 2001, memorandum. Further, there is nothing in the BRP Protocol that informs the IRB-01 that data from Protocol 447-1993 would be included in the new research project. If there is a change in a protocol, no matter how slight, the change must be approved by the IRB. If Respondent wished to include data from Protocol 447-1993 in the BRP Protocol, he needed to make a request to include that specific data. The IRB never gave Respondent approval to use the data from Protocol 447-1993 in the BRP Protocol. The IRB approved the BRP Protocol as an exempt Category IV study pursuant to the Common Rule. An exempt Category IV study is "[r]esearch involving the collection or study of existing data, documents, records, pathological or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects." See 45 C.F.R. § 46.101(b)(4). NIH grants funded the BRP Protocol and Protocol 447- 1993. In 2003, the privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) were implemented at the University of Florida. In order to enforce those provisions, the University of Florida created the Privacy Office at the Health Science Center. Respondent and all of his staff were required to take privacy training provided by the Privacy Office. According to HIPAA, protected health information (PHI) about a patient may be used or disclosed to others only in certain circumstances or under certain conditions. Information about a patient can be de-identified under two alternative procedures set forth at 45 C.F.R. Section 164.514(b). The first procedure requires that a qualified person applying accepted statistical and scientific principals determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual who is a subject of the information. The qualified person must document the methods and results of the analysis that justify such a determination. The second procedure is the removal of all identifiers set forth in 45 C.F.R. Section 164.514(b)(2)(i) from a given patient data set. The identifiers include any unique identifying number, characteristic, or code. Additionally, the covered entity may not have actual knowledge that the remaining information can be used alone or in combination with other information to identify the patient. If a data set is properly de-identified, it is not PHI and is not governed by HIPAA. Furthermore, it does not fall within the definition of human subject research under the Common Rule. Properly de-identified data does not require subject consent or IRB approval for disclosure. Pursuant to the policies and procedures of the IRB-01, only the IRB can make the determination that the research does not include human subjects. BioNeuronics (formerly Neurobionics) is a start-up medical technology company that Respondent and others formed for the purpose of translating an invention developed by Respondent and his colleagues at the University of Florida and Arizona State University into medical devices for the treatment of patients with epilepsy. The University of Florida Research Foundation (UFRF) and Arizona State University owned the patent. BioNeuronics entered into a licensing agreement with the two institutions, permitting the company to develop the patented technology. The University of Florida's Office of Technology Licensing (OTL) was established to work with inventors to facilitate the transfer of technologies created at the university to the commercial sector for public benefit. It is not uncommon for both inventors and the UFRF to be given stock in start-up companies. The OTL encourages inventors to maintain an advisory relationship with the licensee. Pursuant to the licensing agreement, the UFRF was to provide "test data" to BioNeuronics. The licensing agreement does not identify the test data to be provided. The licensing agreement did not contain any provision that test data from Protocol 447-1993 was to be provided to BioNeuronics. At all times material to this case, Respondent owned stock in BioNeuronics, as does the UFRF. Respondent was paid $2000 per month as a consultant for the company. The University of Florida approved the terms of Respondent's participation in BioNeuronics. The UFBOT employs Michael Mahoney as the IRB-01 Coordinator. He is responsible for management of the IRB-01 office. He sits as an alternate member of the IRB-01 Board. The IRB-01 Executive Committee is composed of the Chairman, the Vice-Chairman, the QA Coordinator, the Assistant Director for IRBs, and Mr. Mahoney. Mr. Mahoney's duties involve more than just office management. He also acts as a resource for investigators and research team members on general regulatory information. He provides guidance with IRB-01 forms and assistance with the preparation of submissions for IRB review. In January 2006, Respondent sent an e-mail to Mr. Mahoney, informing him that Respondent had been acquiring and storing long-term EEG and video records of patients with medically intractable seizures. Respondent's e-mail stated that there was an international effort to establish a shared database so that researchers in participating institutions could share datasets. Respondent requested information as to the requirements to share this data with persons outside the university. On February 1, 2006, Mr. Mahoney responded to Respondent, informing him that he needed IRB approval before doing anything new with the data, including releasing it to others. Mr. Mahoney concluded his message by stating that Respondent would have to submit something to the IRB before using or sharing old datasets for different research purposes. At all times material here, Deng Shan Shiau, Ph.D., held a faculty position as a Research Assistant Professor of Biomedical Engineering. Dr. Shiau was in charge of Respondent's laboratory. Dr. Shiau and another research assistant, Dr. Iasemidis, supervised the work of graduate engineering students who recorded, stored, and analyzed data in Respondent's laboratory. Drs. Iasemidis and Shiau brought technical experience and engineering expertise to Respondent's research projects. Daniel J. DiLorenzo, M.D., Ph.D., M.B.A, is an official with BioNeuronics. On February 8, 2006, Respondent forwarded to Dr. DiLorenzo a copy of Respondent's January 2006 e-mail and Mr. Mahoney's February 1, 2006, response. In his transmittal, Respondent stated that he would ask a new assistant, Jessica Martin, to work with Dr. Shiau to obtain copies of consents signed by patients in the depth electrode database to see if the consents would allow the sharing of the de-identified data. Respondent stated that if the consents were inadequate, he would request permission from IRB. Respondent contends that his January e-mail to Mr. Mahoney and Mr. Mahoney's response was not intended to refer to the release of data to BioNeuronics. Instead, he claims that he was inquiring about the release of data to an international symposium of scientists. Respondent's February 8, 2006, e-mail to Dr. DiLorenzo is persuasive evidence to the contrary. On March 7, 2006, Jessica Stevens, an employee in Respondent's laboratory also wrote an e-mail to Mr. Mahoney. Ms. Stevens wanted to know what needed to be done to hand over pre-existing data to others. Ms Stevens wrote a subsequent e-mail to Mr. Mahoney, clarifying that the data Respondent would be handing over was gathered from 1994 to 1997, and that the data would be furnished to BioNeuronics. Mr. Mahoney responded to Ms. Stevens the next day. Mr. Mahoney stated that Ms. Stevens' question was fairly similar to the one he had previously answered directly to Respondent. Mr. Mahoney informed Ms. Stevens that releasing data originally obtained for research purposes is a tricky proposition at best. Mr. Mahoney wanted to know whether the subjects originally consented to share their data, regardless of whether it was de-identified. Mr. Mahoney questioned whether Respondent wanted to release identifiable data and whether Respondent had any conflict of interest issues with the receiving entity. Mr. Mahoney informed Ms. Stevens that her e-mail did not give him enough details to assist her, and that she might want to meet with him to ensure that nothing inappropriate occurred. Ms. Stevens read Mr. Mahoney's response to Respondent, who responded, "Don't listen to him." Respondent told Ms. Stevens that Mr. Mahoney did not know what he was talking about. Mr. Mahoney's advice to Respondent about the release of old data to persons outside the University of Florida was not an official directive of the IRB. However, if Respondent did not believe Mr. Mahoney was qualified to give advice regarding the release of data, there would have been no reason for Respondent to contact Mr. Mahoney in the first place. On March 8, 2006, Dr. DiLorenzo sent an e-mail to Respondent. The message thanked Respondent for agreeing to transfer de-identified continuous EEG data to BioNeuronics. Dr. DiLorenzo stated that all were in agreement that de- identified data would not require IRB approval. Dr. DiLorenzo also related that Dr. Shiau mentioned that he could provide copies of Epilepsy Monitoring Unit (EMU) reports and a spreadsheet with the timing of seizure events for each patient. Respondent did not respond to this message from Dr. DiLorenzo. Respondent subsequently asked Dr. Shiau to put data from Protocol 447-1993 on an external hard drive to send to BioNeuronics. Dr. Shiau sent the external hard drive to BioNeuronics on or about March 14, 2006. On March 16, 2006, Respondent sent an e-mail to Dr. DiLorenzo, asking whether he had any questions about the data format, location of seizures, seizure types, et cetera. Respondent admits that Dr. DiLorenzo would not have been able to determine the seizure type with just the EEG data. Respondent's testimony that he did not intend to send BioNeuronics the patients' clinical records or Excel spreadsheets is not persuasive. The patient information from Protocol 447-1993 consisted of the following computer files: (a) an EEG file with an associated "tag" file; (b) and EMU report consisting of a clinical encounter record, saved in .pdf format; and (c)an Excel spreadsheet with the timing of seizure events for each patient. Respondent knew or should have known that BioNeuronics needed this information to test its algorithm and that the company could not succeed using just the EEG files. Each patient from Protocol 447-1993 was identified by a research subject number such as P171 or P267. Dr. Shiau kept a list of the codes with the associated patient name in a locked file cabinet to which only he had access. Each of the computer files on a given patient included the research subject number as part of the file name. For example, one of the EEG files for P171 was named P17101.eeg. The associated tag file for that EEG file was named P17101.tag. The EMU clinical record for that patient was named P171.pdf. The corresponding Excel spreadsheet was named P171.xls. Respondent originally recorded the Protocol 447-1993 data on VHS tapes. In a second study, the pre-recorded data was transferred from VHS to a digitized form using a proprietary Nicolet Biomedical software program utilized to read the EEGs. The tag files were also generated by the Nicolet reader. The contents of the tag file did not appear on the computer screen when viewing the EEG files, but they could be opened using a word processing program such as WordPad. Neither Respondent nor Dr. Shiau was aware that six of the tag files had patient last names imbedded within the binary codes. The data sent to BioNeuronics was gathered prior to the implementation of HIPAA. At some point in time, an effort had been made to de-identify the clinical records by removing the patients' names, birthdates, and other personal information on the top half of the first page. There is no evidence that anyone specifically checked the data to determine if the records were de-identified pursuant to the new HIPAA standards. Therefore, Respondent's testimony that he did not seek IRB approval prior to sending the data to BioNeuronics because he had a reasonable belief that the data from Protocol 447-1993 was de-identified and related to the BRP Protocol is not credible. On March 18, 2006, an anonymous letter was sent to various entities, including the Office of Civil Rights, the Department of Veteran Affairs, the FDA, the Florida Board of Medicine, the Office of the Attorney General of Florida, the Office for Human Research Protections, the College of Medicine of the University of Florida, the Office of Research Affairs of the University of Florida School [sic] of Medicine, and the NIH. The letter alleged that Respondent had committed an intentional and willful HIPPA [sic] research protocol violation. The letter alleged that the violation involved the release of PHI to BioNeuronics on external hard drives. On March 21, 2006, Linda Dance, an assistant in Respondent's laboratory, wrote a letter to Susan Blair, the Privacy Officer for the University of Florida. In the letter, Ms. Dance reported what she believed was a HIPPA [sic] violation. Ms. Dance identified the violation as the release of patient data to BioNeuronics, a company in which Respondent owned stock and from which he received monthly consulting fees. The Office of Human Research Protections (OHRP) is a federal agency of the United States Department of Health and Human Services. The OHRP wrote to the University of Florida and the VA based on the anonymous letter. The OHRP requested both institutions to investigate the alleged non-compliance, and forward to OHRP a written report. The OHRP also required the university and the VA to provide a description of any corrective actions taken to prevent noncompliance in the future. Ms. Blair undertook an investigation of the matter, interviewing all of the persons involved. She also contacted BioNeuronics to inform the company of a potential disclosure of PHI. The University of Florida Police Department was also involved in the investigation. BioNeuronics immediately returned the external hard drive. The company's president, John Harris, attested that BioNeuronics had erased any data from the hard drive that had been put onto their computer systems. He also attested that to his knowledge, no one at the company had viewed any PHI. The Security Office of the Health Science Center received the hard drive. The office then made a forensic copy of the drive, which contained 18 patient files, including EEG files, tag files, clinical records, and Excel spreadsheets. The Privacy Office made hard copies of the computer files to determine whether they contained any PHI. An employee of Shands Hospitals, who was not connected with the Privacy Office, but who had full access to confidential hospital patient records, was able to identify all 18 patients within a very short time. For at least one of the patients, the clinical record reflects that it is a record of Shands Hospital at the University of Florida. It also contains a room number, a date of service, the name and signature of the doctor, the medications prescribed, the types of procedures involved, and a diagnosis and detailed description of the patient's seizure activity. In the body of the narrative, the clinical record contains the last name of the patient. Access to patient records at Shands Hospitals and Clinics is restricted to persons having a verified and legitimate need to know. Unauthorized access for the purpose of identifying a patient is a violation of law. However, it makes no difference whether an average citizen has access to the information necessary to re-identify a patient. Rather, if identification is possible, the information is PHI. Respondent and Dr. Shiau were placed on administrative leave as of March 31, 2006, pending the outcome of the investigation. Ms. Blair concluded her investigation and issued a report dated April 30, 2006. William Ditto, Ph.D., the Chairman of the Department of Biomedical Engineering, in consultation with the Dean of the College of Engineering and the Provost of the University of Florida, determined that in lieu of dismissal, Respondent would be suspended without pay for six months, commencing August 16, 2006, through February 7, 2007. Dr. Shiau was given a written reprimand. Dr. Ditto sent Respondent a letter dated August 2, 2006. The letter advised Respondent of the six-month suspension. The letter also noted that Respondent was prohibited from engaging in any outside activities with businesses outside the university. The letter stated that Respondent's current outside activities, exemptions, or approvals were withdrawn, including those with BioNeuronics, Inc. and Optima Neuroscience, Inc. The revocation of Respondent's waiver to participate in outside activities would have required him to abandon investors who licensed his technology at Optima Neuroscience and give up hope of ever seeing his work come to fruition. Therefore, Respondent did not divest himself of his interest in BioNeuronics or Optima Neuroscience. Respondent did discontinue all outside activities with those companies during this period and his stock in Optima Neuroscience was held in escrow. Respondent appealed the disciplinary action. The UFBOT referred the appeal to the Division of Administrative Hearings. UFBOT denied Respondent's request to be reinstated to his position with the university during the appeal in accordance with Florida Administrative Code Rule 6C1-7.048(2)(c). UFBOT stopped paying Respondent at the end of the spring semester 2006. Ordinarily, UFBOT would have paid him during the summer from funds generated by this grants. Due to his involuntary administrative leave, Respondent could not do any work under his grant during the summer because the UFBOT refused to continue Respondent in pay status pending his appeal. Prior to the end of his disciplinary suspension, the university relinquished Respondent's major funding source, the On Line, Real Time Seizure Prediction Grant, worth 2.4 million dollars to the NHI. Since research was the primary basis of Respondent's employment, Respondent assumed there was no job for him to return to after his defacto suspension was over. On February 16, 2007, Respondent voluntarily resigned from his tenured professorship at the University of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enters a final order finding just cause to discipline Respondent, who is entitled to back pay from August 16, 2006, to February 16, 2007. DONE AND ENTERED this 6th day of December, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2007. COPIES FURNISHED: Carla D. Franklin, Esquire Carla D. Franklin, P.A. 4809 Southwest 91st Terrace Gainesville, Florida 32608 Susan M. Seigle, Esquire Dell Graham, P.A. Post Office Box 850 Gainesville, Florida 32602 B. Dianne Farb, Esquire Assistant General Counsel University of Florida Post Office Box 100215 Gainesville, Florida 32610-0215 Deborah K. Kearney, Esquire General Counsel Department of Education Turlington Building, Suite 1214 325 West Gaines Street Tallahassee, Florida 32399-0400 Jeanine Blomberg Interim Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
