Findings Of Fact The applicants, MediVision of Miami, Inc., and MediVision of Northern Dade County, Inc., are wholly owned subsidiaries of MediVision Inc., which maintains its corporate offices in Boston, Massachusetts. MediVision, Inc., was incorporated in January, 1984, to promote the development of outpatient eye surgery, in part through the development and operation of outpatient eye surgery centers. MediVision of Miami, Inc., and MediVision of Northern Dade County, Inc., will each be responsible for the development and operation of the projects proposed in their respective applications. MediVision, Inc., was organized by several individuals in response to a study conducted by Bain and Company, a strategic consulting firms as part of a consulting engagement in which those persons were involved. The study disclosed several demographic and health care delivery trends which prompted MediVision management to pursue the development of outpatient eye surgery centers. Those trends are: an overall movement of all types of surgery from an impatient to an outpatient setting; the increase in the nation's elderly population, and the fact that the likelihood of a person developing cataracts increases dramatically with age; the technological improvements in the provision of cataract surgery; the growth in the number of cataract surgeries performed nationally; and, a change in the manner in which Medicare reimburses a facility for outpatient surgery performed upon Medicare recipients. Medicare, since 1982, has reimbursed licensed freestanding ambulatory surgical facilities at a flat rate for the provision of such surgery, with no cost to the patient. For the same surgical procedures performed in a hospital outpatient setting, Medicare will reimburse the facility its costs of providing the surgery; the patient is responsible to pay the Medicare deductible and 20 percent co-insurance. Various subsidiaries of MediVision Inc., presently operate eight outpatient eye surgery centers nationwide; two are located in Florida. Other MediVision subsidiaries are developing three additional centers in Florida, pursuant to certificates of need issued by the Department of Health and Rehabilitative Services. Both parties employed the same quantitative need methodology. The methodology employs the following steps: acquire data regarding number of impatient and outpatient surgical procedures performed by existing providers; using this data, calculate current overall surgical use rate and outpatient surgical use rate for county; using the projected population for the year in question and the current use rate, calculate projected number of surgeries; multiply total projected surgeries by 40 percent to establish total outpatient surgery pool for year in question; subtract from result of step 4, all outpatient surgical procedures projected to be performed in hospitals and operating freestanding ambulatory surgery centers; subtract financial break-evens of all certificate of need approved freestanding outpatient surgery centers from this pool; and, after subtractions the number of surgical procedures remaining are compared to the break-evens of certificate of need applicant at issue. If the pool is larger than break-evens the condition is satisfied. If the pool is smaller than break-evens the condition is not satisfied. The quantitative methodology provides a reasonable approach to the evaluation of need for ambulatory surgical facilities. The basic methodology has been employed by the Department since 1982; in December, 1985, the Department began to employ a "40 percent outpatient factor" in implementing the policy. Accordingly, looking toward the planning horizon of 1988, the methodology projects that 40 percent of all surgeries in Dade County will be performed on an outpatient basis. The 40 percent outpatient factor is reasonable for use in these proceedings. The prevailing literature suggests that 40 percent of all surgeries can be expected to be performed on an outpatient basis. Within Florida, many counties are already performing in excess of 30 percent of all surgeries on an outpatient basis. Trends in health care delivery and reimbursements including the growth in pre-paid health care organizations, such as health maintenance organizations; professional review organizations, which monitor the appropriateness of hospital admissions; and Medicare reimbursement incentives will contribute to an increase in the percentage of surgeries performed in an outpatient setting. While employing the same quantitative need methodology, the parties' health planning experts arrived at different conclusions as to whether the methodology projects need for the facilities at issue in these proceedings. The differences in outcome are attributable to two issues: (1) the calculation of a base-year use rate; and (2) the calculation of "break-evens" for previously approved, but non-operational, ambulatory surgical facilities. Each expert relied upon the same basic data source in calculating a base-year surgical use rate, employing data collected by HRS and reported in the most current State Agency Action Report prepared by the Department relative to Dade County. Such Action Report (CON Action No. 4095) lacked complete data regarding the total number of surgeries performed in Dade County during the base-year (1984-5), in that six of the thirty-three acute care hospitals in Dade County failed to report. Because it is necessary to have complete data in order to establish an accurate base-year surgical use rate, Mark Druash who was engaged to undertake a need analysis by the applicants, referred to earlier State Agency Action Reports to acquire surgical procedure data for the six hospitals which had failed to report. Such documents are reliable data sources upon which to base a need analysis. In calculating a county's surgical use rate, health planners take into consideration the total population within the county. Accordingly, the total number of surgeries provided within the county must also be considered. In that six Dade County hospitals failed to report data and HRS' health planner did not acquire data relative to those facilities, the surgeries performed at those hospitals were not included in his calculation of a surgical use rate. If the total population of a county is considered in calculating a surgical use rate, but something less than the total number of surgeries is considered, the calculation results in an artificially deflated use rate. As the base-year use rate drives all of the remaining calculations in the quantitative methodology, an error in the calculation of the use rate will be carried through the entire methodology. The ultimate effect of a deflated use rate is to project a smaller number of surgical procedures, as compared to a use rate calculated upon complete data. HRS calculated a base-year surgical use rate for Dade County of 78.2 surgeries/1000 population. MediVision calculated a base-year surgical use rate of 92.8/1000 population. The variance in the use rates is attributable solely to the fact that Druash acquired and employed in his calculations surgical procedure data from all Dade County hospitals previously relied upon by HRS; while HRS relied upon incomplete data. In that Druash's calculations are based on a complete data based the surgical use rate of 92.8/1000 population is found to be more accurate and reliable than the rate of 78.2/1000 population calculated by HRS from incomplete data. The parties differ in their calculation of "break- evens for previously approved, but not yet operational, ambulatory surgical facilities. The break-even calculation is an integral part of the quantitative need methodology. The purpose of subtracting from the available outpatient surgical pool the "break-evens" of approved, but not yet operational ambulatory surgical facilities is to assure that there exists need for the project proposed adequate to allow both such project and previously approved facilities to operate in a financially viable manner. The "break-even" approach is also intended to promote competition; rather than assuming that all of the procedures projected by a facility will be performed in such facility; the approach allocates to the facility only that number of procedures it needs to generate sufficient revenues to cover its expenses. Druash who participated in the development of the quantitative methodology during his tenure with HRS, testified that the "break-even" approach was selected because it would promote competition among providers by approving enough applicants so that they would be "hungry" for the residual surgeries projected by the methodology. The purpose of calculating a financial break-even is to ascertain at what point a project's cash flow will equal its expenditures. The generally accepted method for calculating a financial break-even requires that fixed costs be separated from variable costs. The concept of variable costs is the basis for the computation of a break-even. Fixed costs are those which remain constant regardless of the volume of business conducted by an entity; variable costs are those that change directly with volume. In the operation of an ambulatory surgical facility, virtually all expenses related to medical supplies are variable. If no patients are treated, no medical supplies are needed, and no expenses are incurred. If 100 patients are treated, 100 units of medical supplies are needed, with resultant expense. Certain expenses involved in the operation of an ambulatory surgical center are totally fixed, such as debt service and property taxes. All other expenses are variable to some degree e.g. salaries, utilities, and maintenance. Depreciation and amortization of property and equipment are not considered as expenses in a break-even analysis, as those items do not represent cash expenditures. As mere accounting recognitions of prior investment, depreciation and amortization should not be included in a calculation of a cash flow break-even. HRS' methodology for calculating financial break-evens for ambulatory surgical procedures treats all expenses as fixed, and includes amortization and depreciation among those expenses. By HRS' admissions the Department, "in lieu of attempting to determine what is fixed and what is variable . . . will use a somewhat more crude method". Where a financial break-even is calculated treating all costs as fixed, the resulting break-even number is artificially inflated. By the Department's reckoning, the effect of treating all expenses as fixed is to "add a cushion" to its approvals of prior applications. HRS' expert acknowledged, however, that differentiating between fixed and variable costs in performing a financial break-even analysis is the "preferred methods no question". Lovell Jones, a certified public accountant and expert in health care finance, performed revised break-even analyses for previously approved, but not yet operational, ambulatory surgical facilities. Jones first acquired expense and revenue data from the certificate of need applications submitted by previously approved applicants. Then, treating only medical supplies as variable expenses, and excluding amortization and depreciation from the list of fixed expenses, he calculated the actual financial break-even of each approved, but not yet operational, facility. Jones' analysis finds the collective break- even of all previously approved, but not yet operational, facilities to be 17,996 procedures, whereas the Department's "crude" analysis results in a collective break-even of 25,736. Jones' method of calculating break-even, which was agreed to be technically correct by both parties, is more accurate and reliable than the method employed by the Department. Using the agreed-upon quantitative methodology, the surgical use rate calculated by Druash, and the break-even numbers calculated by Jones, there is projected to exist in 1988 a pool of 5006 outpatient surgical procedures that could be provided by the applicants in these proceedings. Subtracting the break-even numbers of the two proposed facilities, there will exist a residual pool of greater than 3600 procedures. Accordingly, there exists a quantitative need for the two proposed facilities. Furthers the residual pool of greater than 3600 procedures represents an adequate "cushion" to satisfy the concerns of HRS that previously approved facilities be given the opportunity to operate in a financially viable manner. The proposed facilities will improve access to services for both Medicare and indigent patients. Medicare patients receiving surgery at the facilities will be treated free of cost, with the Medicare program having full responsibility for payment. All other patients will be treated at the facilities regardless of ability to pay. The proposed facilities will promote competition in that management intends the charges to commercial patients to be less than the prevailing charges in the community. Where an ambulatory surgical facility enters a market, hospital charges for similar services tend to decrease. The proposed facilities will promote cost containment, as it is more costly to render care in a hospital outpatient department than in a freestanding ambulatory surgical facility. Hospital outpatient departments, which are reimbursed by Medicare for their costs of providing services, do not have the same incentive to reduce costs as do freestanding ambulatory surgery facilities, which are reimbursed at a predetermined flat rate for the provision of services. Accordingly, Medicare has encouraged the use of freestanding ambulatory surgical facilities by incurring all responsibility for payments at no cost to Medicare recipients. The Department's sole concern regarding the financial feasibility of the proposed facilities arises out of its position that there exists no need for the facilities. Accordingly, the Department questions whether the facilities will enjoy utilization sufficient to generate the revenues necessary to their viable operation. In that need for the facilities has been found to exist, it follows that the facilities will be able to generate adequate numbers of surgeries to achieve break-even in their second years of operation. Several other factors indicate that the facilities will experience utilization sufficient to achieve break-even in their second years of operation: The marketing and community education activities proposed by the applicants will encourage utilization. In its existing surgical facility in Orlando, MediVision, Inc., has undertaken similar activities, which have resulted in substantial surgical referrals to the facility; There exists a residual pool of approximately 5,000,000 untreated cataracts nationally; Medicare reimbursement policies which allow Medicare recipients to receive treatment at licensed freestanding ambulatory surgical centers at no cost to the recipient will encourage utilization of the proposed facilities; The applicants' pricing structure, for both Medicare and commercial patients, will encourage utilization of the proposed facilities; and Two local ophthalmology group practices have expressed strong interest in performing surgery at the proposed facilities. Each group presently performs in excess of 1000 surgeries annually, which volume is greater than the break-even volume necessary to be achieved at each facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is RECOMMENDED that a Final Order be entered approving the applications of Petitioners to establish and operate freestanding ophthalmic ambulatory surgical centers in Dade County, Florida. DONE and RECOMMENDED this 6th day of June, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1986. COPIES FURNISHED: William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Robert A. Weiss, Esquire The Perkins House, Suite 101 118 North Gadsden Street Tallahassee, Florida 32301 Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent violated Subsections 460.413(1)(ff) and 456.072(1)(u), and Section 460.412, Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Hether was a licensed chiropractic physician within the State of Florida, having been issued license number CH 2601 on or about April 16, 1977. Other than the instant Administrative Complaint, Dr. Hether has had no disciplinary action taken against his license. In April 2003, Dr. Hether had two chiropractic offices, one in Port Orange, Florida, and one in Deland, Florida. On or about April 8, 2003, C.B., a 29-year-old female, presented herself to Dr. Hether's office in Port Orange, Florida, in order to receive chiropractic treatment for injuries she sustained in an automobile accident. C.B. began receiving treatments in the Port Orange Office, but switched her appointments to the Deland office on or about May 8, 2003. The remainder of her treatments was given at the Deland office. Her treatments included chiropractic adjustments and massages. The chiropractic adjustments were performed by Dr. Hether and other physicians who worked for Dr. Hether; however, the majority of the chiropractic adjustments were performed by Dr. Hether. Until C.B.'s visit on June 11, 2003, all the massages had been performed by licensed massage therapists who worked for Dr. Hether. From on or about April 8, 2003, up to June 11, 2003, C.B. received various chiropractic treatments at Dr. Hether's offices without incident. On June 11, 2003, C.B. presented herself to Dr. Hether's office to receive her usual chiropractic treatment, including a massage. Dr. Hether, his son, and another male were in the office. Dr. Hether offered to perform the massage on C.B. because the regular massage therapist was not present, and C.B. accepted. C.B. went into the massage room, undressed to her underwear, and lay face down on the table with a sheet draped over her. Dr. Hether came into the massage room and began to massage C.B. Dr. Hether and C.B. were the only persons in the room during the massage. While C.B. was lying face down, Dr. Hether slipped his hands under C.B.'s underwear on the left side of her buttocks and then placed his hand under her underwear on the right side of her buttocks. At Dr. Hether's instruction, C.B. turned over onto her back. Dr. Hether placed his hands under C.B.'s breast area and rubbed upward towards her cleavage. Dr. Hether then slid his hand down C.B.'s body toward her vaginal area, grabbed a part of C.B.'s vaginal area, and began to make grunting noises as if he were getting sexual pleasure from the touching. While Dr. Hether was touching C.B.'s vaginal area, Chase Hether, Dr. Hether's son and office manager, knocked on the door to the massage room. Dr. Hether briefly stopped the massage to speak to his son. The door was partially open, but Chase Hether could not see inside the massage room. After speaking to his son, Dr. Hether closed the door and walked back to the massage table, where he again placed his hand in C.B.'s vaginal area and slid his fingers back and forth. Dr. Hether then shoved his hand further down C.B.'s panties and repeatedly thumped C.B.'s vaginal area. While Dr. Hether was thumping her vaginal area with one hand, he grabbed C.B.'s ankle with the other hand, while using the full pressure of his body weight on her body. Dr. Hether resumed making the grunting sounds and continued to make the sounds for a while. C.B. had approximately 27 massages at Dr. Hether's offices from the time she began treatment in April 2003 until June 11, 2003. The massage therapists who gave her those massages did not touch C.B.'s pubic area or touch the areas around C.B. breasts. After the massage, C.B. got dressed and went into another room to receive a chiropractic adjustment from Dr. Hether. Dr. Hether gave the chiropractic adjustment without any further inappropriate touching. After he concluded the chiropractic treatment, he asked C.B. personal questions about her living arrangements and occupation. C.B. went into the reception area of the office to leave the building. She saw Chase Hether and another man in the reception area. C.B. did not tell either man what had happened nor did she tell them that she would not be back to Dr. Hether's office for treatment. While Dr. Hether was touching C.B. inappropriately, she did not cry out, tell him to stop, or attempt to leave. When Chase Hether came to the door of the massage room, C.B. did not tell him what Dr. Hether was doing. C.B. did not try to stop the massage, leave Dr. Hether's offices, or tell others at Dr. Hether's office about the inappropriate touching because she was afraid of Dr. Hether and did not know what else Dr. Hether might do to her. She felt like she was a "visitor in her own body" and had no control over what was being done to her. She did not report the incident to the police department because she felt that the police were ineffective. C.B. did not go back to Dr. Hether's offices for treatment after the incident on June 11, 2003. She sought treatment from another chiropractic physician, Dr. Kimberly Watson, whom C.B. saw on June 23, 2003. C.B. told Dr. Watson what had happened to her at Dr. Hether's office. Dr. Watson advised C.B. that she could file a complaint with the Department of Health. C.B. did send a complaint to the Department of Health in June 2003, but she sent it to the wrong address. She got the correct address from Dr. Watson and filed a complaint with the Department of Health in September 2003. A year passed, and she contacted the Department of Health, wanting to know the status of her complaint. C.B. was told to file another complaint, which she did. Dr. Hether's wife, Kathe Hether, testified that she was at Dr. Hether's office the day of the incident and that as C.B. was leaving the office she spoke to C.B. for several minutes concerning her publishing business and that C.B. told her that she was going to another chiropractor that was nearer to her home. Mrs. Hether's testimony is not credible. Her husband of 36 years did not advise her until two months before the final hearing, that an administrative complaint had been filed against him. It is inconceivable that two and one-half years after their conversation, Ms. Hether vividly remembers talking to C.B. when there had been no reason to remember the conversation. Additionally, Ms. Hether's explanation for C.B.'s failure to return to Dr. Hether for treatment because C.B. wanted to go to a chiropractor closer to her home is also not credible. C.B. chose to seek treatment from Dr. Watson, whose office was about the same distance from C.B.'s home as Dr. Hether's office. C.B. also told Dr. Watson about the incident with Dr. Hether, explaining the reason that she discontinued treatment with Dr. Hether. C.B. has not brought a civil action against Dr. Hether for the incident on June 11, 2003. She filed the complaint with the Department so that Dr. Hether would not touch other patients inappropriately.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James Hether, D.C., violated Subsection 460.413(1)(ff), Florida Statutes, by violating Subsection 456.072(1)(u) and Section 460.412, Florida Statutes; issuing a reprimand; imposing a $2,500 administrative fine; requiring a psychological evaluation by the professional resource network; and placing him on probation for two years, the terms of which would include a practice restriction prohibiting him from treating female patients without another certified health care professional in the room. DONE AND ENTERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of July, 2006.
Findings Of Fact In October of 1975 the Respondent, Joseph Victor, the administrator of Lee Convalescent Center, came upon an elderly gentlemen in the lobby of the center. Victor saw the man enter and inquired of him what he was doing there. Apparently, Victor did not get a straight answer or one that was satisfactory to him and after consulting with Dorothy Nobles, the admitting secretary, came to the conclusion that this gentlemen was a vagrant. In actuality he was David Kernaghan, a patient at the center. Apparently, Mr. Kernaghan did not have identification bracelets on him at the time and was staggering and incoherent. Mr. Victor did not make an inquiry as to whether Kernaghan was in fact a patient at the convalescent center even though many patients were permitted to be ambulatory and to "wander" around the convalescent center. Victor called the police who took Mr. Kernaghan to the Lee County Hospital . About two hours later his identity was learned and he was returned to the convalescent center. In January of 1976 a patient by the name of Charles E. Whitaker was being extremely unruly in his room which he shared with two other patients. The patient had been noisy, disruptive and behaving in such a disorderly manner that the other patients were being deprived of their sleep. Mr. Whitaker would continually disrobe and expose himself and had been publicly masturbating in his room. The nurses on the floor, after repeated efforts to clam down Mr. Whitaker, wheeled him into what had been described as the supervised bathroom. Whitaker was kept in his bed in this bathroom where he could be observed and isolated from the other patients. At the time this was done all the other isolation rooms where patients would normally be brought to be isolated were being used. The room in which he was brought was heated and except for being a shower room or bathroom it was not in any way demonstrated to be an unsatisfactory room in which to isolate a patient. No evidence was presented that at the time this was done Mr. Victor knew of this action taken by the floor nurses. Furthermore, no evidence was presented that isolating the patient Whitaker in this manner was in any way detrimental to his health or was an unprofessional decision. Testimony was given by Mr. Whitaker's daughter-in-law to the effect that he had been threatened by a nurse with being isolated in this bathroom several days before this happened but such testimony was pure hearsay and cannot be the basis for a finding of fact. Furthermore, in the opinion of this Hearing Officer, the isolation of the patient Whitaker, under the circumstances above described and in the manner in which it was done, was perfectly justified. With regard to Count III, considerable testimony was given by nurses who work at the Lee Convalescent Center that Respondent, Victor, often inquired as to whether patients that were continuously wandering around the convalescent center could be given something to calm or quiet them down. It was the clear impression of many of these witnesses that Victor was advocating the indiscriminate tranquilizing of the patients. If that indeed was his intention the evidence is not sufficiently clear to make such a finding. Victor, as all these witnesses acknowledged, did not have the authority to order the administration of drugs to a patient without the consent of the patient's doctor, nor was there any evidence that he attempted to so do. Comments made by Whitaker appear to have been no more than a half-hearted attempt on his part to suggest to nurses on duty to consider getting a doctor's permission to sedate a patient. This is not what is charged in the Complaint, which is that the Respondent ordered the sedation of "wandering patients". Further, it is significant that in the examples that were testified to at the hearing none of the nurses followed Victor's "suggestions" and Victor did not make any attempt to follow-up to see if any patients had been sedated. In all other respects no other evidence was submitted regarding the other allegations in Count III and it is specifically entered as a finding of fact herein that such other allegations were not proven. Evidence was presented that for about a period of one month during the time in question the orange juice at the convalescent center was watered down. No evidence was presented that Mr. Victor was aware that the orange juice had been watered down and no evidence was presented that this was in any way intentional or was done with Mr. Victor's permission. Victor himself testified that when he discovered the orange juice was not being mixed at the proper strength he told those responsible to correct the situation. He also expressed the opinion that the kitchen staff inadvertently misread the directions on the orange juice concentrates. All other testimony with regard to Count IV indicated that the meals at the center met all nutritional standards and always passed inspections performed by state regulatory agencies. With regard to Count V, which deals with providing the patient Amy Miller with the required itemized statement listing the specific charges incurred at the convalescent center, the evidence indicates that it was the practice of the convalescent center to refer to prescription charges by a number which would be verified by consulting the pharmacists issuing the medication. In addition, the convalescent center added a $2.00 charge for all physician services, and the billing to the patient did not reflect this surcharge. Victor claimed this was a reasonable charge for processing a doctor's bill. Furthermore, the convalescent center received a discount for medications which discount was not passed on to the patient. With regard to Counts VI and VII, testimony was received from Janet Sue Welch who worked at the Lee Convalescent Center for nine months in the administrative offices. She testified that she observed several items being charged to patients merely because those items had been missing from the inventory of the center. She further testified that admitting papers for patients were forged upon the arrival of several patients. Ms. Welch stated she had no personal knowledge that Respondent Victor was aware of these practices, but assumed that he was. She stated most of the items were charged to patients who were for the most part incompetent. Ms. Nobles, the admitting secretary, testified that there had been occasions where patients had been readmitted to the convalescent center and had no legal representative to sign them in. She said in those cases she did trace their signatures on to the re-admission papers. She believed this was authorized because the patient had previously been admitted to the convalescent center. Also, Nobles testified that to her knowledge Victor was unaware of this practice. From the above it is concluded that occasionally items were charged to patients by the convalescent center without being used by that patient. It is also found that on occasion patients were admitted without proper authorization. However, no evidence was presented which would indicate the Respondent, Victor, was responsible for or even aware of this practice. Nor was any evidence presented that he should have been aware of this practice. Count VIII involves the allegation that patients received negligent care with disregard to their health, safety or welfare. The only evidence which was presented which might have a bearing on this charge was that on a few occasions patients were observed in soiled bed clothes without a nurse or other attendant to help them. No evidence was presented that patients at the convalescent center received negligent care and on the occasions above described testimony was very general and gave no indication how long the patients in question were without a nurse's attention. From the evidence presented in this case, it is clear that a convalescent center cannot be run with a nurse or attendant in constant contact with each patient. Times will arise where nurses must attend to patients on a priority basis. The instances where patients were described to be lacking attention were not the type of situations where it could be said anyone was at fault or that the patients suffered any threat to their health, safety or welfare. The patients may have experienced a certain degree of discomfort, but nothing was presented which would even remotely indicate a breach of professional responsibility. In fact the overwhelming evidence at this proceeding strongly indicates that the quality of health care given at the Lee Convalescent Center was quite good. Numerous state investigators of the Department of Health and Rehabilitative Services and other agencies and several physicians all indicated that the convalescent center was a well-run establishment that satisfactorily cared for its patients. With regard to the last count in the Complaint, Count IX, some testimony was presented that the Respondent, Mr. Victor, has expressed displeasure with certain employees allegedly because they were black and that he did not like them. Testimony on this point is conflicting because Mr. Victor alleged that he observed the employees in question breaking rules of the hospital such as eating food from patients' plates and admitting unauthorized visitors. Apparently, these employees were fired by Mr. Victor. It is hard to see, however, how the evidence indicates a discriminatory practice on behalf of Mr. Victor for all of the employees in the department where the two in question worked were black. It is hard to imagine how an individual could practice racial discrimination on such a selective basis. On the other hand, as the administrator of the hospital, Mr. Victor certainly had the prerogative to fire employees he felt were not performing adequately. Other evidence of racial discrimination involved the "coding" of employment applications. Mr. Victor told Janet Sue Welch to mark employment applications in pencil with a "B" or "W" to indicate the particular race of the applicant. Aside from the marking of the employment applications (done in pencil to that they could be erased at a later time), no evidence was presented as to whether the applications were used in a discriminatory manner or that other discriminatory practices were put into effect by the Respondent. There was no indication on the record as to whether during the period of time that the applications were coded that the Respondent hired a greater proportion of whites or did anything of a discriminatory nature. With regard to the coding of employment applications it is certainly apparent that by marking or having marked employment applications to indicate the race of the applicant one could easily engage in discriminatory hiring practices. However, there was no evidence presented which would indicate this was done. At all times relevant to the issues in this hearing, it is clear that the center had a very high percentage of minority employees on the staff. Also, there was no indicating of Victor hiring in a discriminatory manner. In fact, there was direct evidence given of a promotion given to a black employee over others among whom were white applicants. Therefore, Victor is found not guilty of discriminatory hiring practices.
The Issue Whether disciplinary action should be taken against Respondent's license as a veterinarian based on alleged violations of Section 474.214, Florida Statutes (1997), as charged in the Administrative Complaints filed against Respondent in this proceeding. Count I of the Administrative Complaint in Case No. 00-2357 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances. Count II of the Administrative Complaint charged Respondent with a violation of Section 474.214(1)(ee), Florida Statutes (1997): failing to keep contemporaneously written medical records as prescribed by Rule 61G18-18.002(3), Florida Administrative Code. The Administrative Complaint in Case No. 00-2358 charged Respondent with a violation of Section 474.214(1)(r), Florida Statutes (1997): being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: At all times material, Respondent was a licensed veterinarian, having been issued license number VM 0003822. Facts relating to Case No. 00-2357 On or about March 5, 1998, Respondent performed a spay on "Midnight," a dog owned by Maryjane Greene and her husband. On or about March 8, 1998, "Midnight" expired at the Greene's home. When Mrs. Greene dropped off "Midnight," she was not sufficiently informed by Respondent about her option to have a pre-anesthesia lab work-up performed. There is no indication of an offer to perform a pre- anesthesia lab work-up, nor an indication that Mr. or Mrs. Greene declined such an offer, nor a consent form declining such a work-up, noted in the medical records kept by Respondent for "Midnight." It is a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the spay of "Midnight" included Xylzine (a.k.a. Rompun) a drug with a profound and potentially deleterious effect on the heart which may cause a first degree or second degree heart block. The anesthetic protocol used by Respondent during the spay of "Midnight" also included Ketamine, which is not approved for use in dogs. When used as an anesthetic protocol, it is considered an extra-label use of the drug. An extra-label use of a drug means that there have been no safety studies completed, and it cannot be adequately predicted what effects the medication will have on an animal on a consistent basis. There is no indication in Respondent's records for "Midnight" that Mrs. Greene was informed regarding the use of Ketamine in her dog's procedure. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug and not to have the client sign a consent form. Xylazine and Ketamine are both cardiac depressants. When used in combination they each make the other more of a cardiac depressant, thus requiring the administration of another drug, such as Atropine, to minimize the cardiac depressant effect. There is no indication in Respondent's medical records for "Midnight" that Atropine or any other drug was administered, other that the Xylazine and Ketamine. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xylazine and Ketamine was a deviation from the standard of care. Respondent's failure to administer Atropine or any other drug to minimize the cardiac depressant effects of Xyalzine and Ketamine played a substantial role in "Midnight's" demise. Upon picking up "Midnight," Mrs. Greene was given limited post-operative instructions. She was told not to give "Midnight" water until he could walk a straight line; not to give food until he could hold water down; only leash walks for 10 days; and no baths for 7-10 days. Respondent's post-operative discharge instructions given to Mrs. Greene did not comply with the standard of care in veterinary medicine. Facts relating to Case No. 00-2358 On or about August 25, 1998, Respondent performed surgery to remove a mass from the perineal area of "Snoopy," a nine-year-old obese Beagle belonging to Juan Ferras. There is no indication in Respondent's records for "Snoopy" that the surgery was performed due to an emergency, although the credible testimony indicated that it was an emergency. Given "Snoopy's" age (nine years) and weight (60 lbs.), it would be in the dog's best interest to perform a pre- anesthesia lab work-up, or to at least offer one to the owner. Respondent did not indicate in his medical records that he offered to perform a pre-anesthesia lab work-up on "Snoopy." In view of the emergency nature of the surgery, it was not a deviation from the standard of care to fail to offer a pre-anesthesia lab work-up. The anesthetic protocol used by Respondent during the procedure on "Snoopy" included Ketamine, which is not approved for use in dogs. When used, it is considered an extra-label use of the drug. Ketamine should be used with extreme caution in dogs for which the veterinarian is unaware of the renal function or the liver function of the dog. It is a deviation from the standard of care not to make a client aware of the use of an extra-label drug, and not to have the client sign a consent form. There is no indication in Respondent's records for "Snoopy" that Juan Ferras was informed regarding the use of Ketamine in his dog's procedure. Upon picking up "Snoopy," Mr. Ferras was given limited post-operative instructions. Respondent's failure to give specific post-operative discharge instructions to Mr. Ferras constituted a deviation from the standard of care. After discharge, "Snoopy" began vomiting and was readmitted to Respondent's facility on or about August 27, 1998. On or about August 28, 1998, "Snoopy" expired at Respondent's facility. There is no indication in Respondent's records on "Snoopy" that upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, Juan Ferras refused to pay or was only willing to pay a small portion of any treatment rendered to "Snoopy." Because of this finding it is unnecessary to address whether refusal to pay a fee is an appropriate defense by Respondent. Upon "Snoopy's" readmission to Respondent's facility, on or about August 27, 1998, "Snoopy" was determined to be approximately 11 percent dehydrated and in a state of shock. In order to correct the dehydration and maintain "Snoopy," it would have been required to administer approximately 4300-4400 ccs of fluid. Respondent's records indicate that only 800 ccs of fluids were administered to "Snoopy." This left "Snoopy" with a tremendous deficit of fluids. Respondent's explanation as to the reason for the small amount of fluid shown on "Snoopy's" chart is not credible. Respondent's failure to administer the correct amount of fluids constitutes a deviation from the standard of care. Upon readmission to Respondent's clinic, Respondnet did not draw blood or perform any type of bloodwork on "Snoopy." Respondent's failure to draw blood or perform any type of bloodwork on "Snoopy" after being readmitted for dehydration and vomiting and shock constitutes a deviation from the standard of care. The fluids which were administered to "Snoopy" were administered sub-cutaneously. The failure to insert an IV catheter to administer the fluids, rather than administering them sub-cutaneously, constitutes a deviation from the standard of care. One way of re-hydrating a dehydrated patient is by weighing the dog and then adding enough fluids to get the patient to its normal weight. There is no indication in Respondent's records that "Snoopy" was weighed at the end of the day on or about August 27, 1998, or that "Snoopy" weighed approximately 60 pounds late in the day on or about August 27, 1998. Respondent's records for "Snoopy" contain a notation at 10:00 p.m. August 27, 1998, of "ADR" which means "ain't doing right." A patient whose records indicate "ADR" should be continuously monitored or transferred to an emergency facility. "Snoopy" was not monitored overnight and through the early hours of the next morning. Had Respondent taken appropriate steps with regards to fluid resuscitation upon "Snoopy's" readmission to Respondent's facility, "Snoopy's" chance of survival would have been much higher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be render by the Board of Veterinary Medicine, as follows: Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statutes (1997), as alleged in Count I of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case NO. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(ee), Florida Statutes (1997), as alleged in Count II of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR Case No. 98-11323). Finding Respondent guilty of having violated Section 474.214(1)(r), Florida Statues (1997), as alleged in the Administrative Complaint for DOAH Case No. 00-2358 (DBPR Case No. 98-21230). In light of these findings of guilt and aggravating circumstances, the following penalties are recommended: A thirty-day suspension of licensure. An administrative fine in the amount of four-thousand dollars ($4000.00). Assessing costs of investigation and prosecution, in the amount of $973.24 for Case No. 00-2357 and $684.29 for Case No. 00-2358. Five years of monitored probation upon such terms and conditions as the Board finds necessary and reasonable. DONE AND ENTERED this 19th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2000. COPIES FURNISHED: Walter H. Dornbusch, D.V.M. 1117 Malabar Road, Northeast Palm Bay, Florida 32907 Robert H. Hosay, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Barbara D. Auger, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sherry Landrum, Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent is guilty of deviating from the applicable standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records, in violation of Section 458.331(1)(m), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 0066606. Respondent has been board certified in plastic surgery since 1983 and is also board certified in hand surgery. Respondent has previously practiced in Kentucky. He relocated to Florida in 1994 to join a former physician colleague, Dr. Bolt, who had developed cancer and later died in early 1995. Respondent joined the Center for Cosmetic Surgery (Center), which Dr. Bolt had sold to two persons, including Jeff Davis. The record does not disclose whether Mr. Davis is a physician, but Respondent described him and the other principal/owner as felons. The Center held out Respondent as the medical director. This representation was obviously with Respondent’s knowledge and at least tacit consent. After Dr. Bolt’s death, Respondent recruited three more physicians for the Center, but none of them was board certified in plastic surgery. Mr. Davis served as the patient coordinator at the Center. The position of patient coordinator had significant marketing responsibilities. Typically, a prospective patient would contact the Center and schedule a free consultation. At the appointed time, the prospective patient would visit the Center and speak with a physician, such as Respondent. No physical examination would take place. During the discussion, the physician would make notes on a Physician’s Report, which the prospective patient would take to Mr. Davis, whose job was to sell the surgery. Using incentives such as free nose jobs, Mr. Davis was responsible for pricing surgical procedures and scheduling surgery, once the prospective patient agreed to have a Center physician perform the agreed-upon surgery. Mr. Davis was also responsible for collecting money from patients in payment for their surgery. Typically, one of Respondent’s patients would schedule surgery two to three months from the date of making the appointment. Before surgery, Respondent would see the patient before surgery for a physical examination and preoperative testing. Respondent determined what preoperative testing was necessary on a patient-by-patient basis. Following this visit, Respondent would dictate the findings from the physical examination and the treatment plan. A transcribing service was responsible for transcribing the dictation and filing it in the patient’s chart. In May or June of 1996, Respondent provided notice to the principals of the Center that he would be terminating his employment. He terminated his employment on November 1, 1996. After his departure, Respondent learned that Center employees had misinformed his patients as to Respondent’s nonavailability due to illness or surgery. It is unclear whether this situation existed before Respondent’s announced departure. Tensions developed between Respondent and the principals of the Center. Respondent determined that he could lawfully contact those patients still needing care, so he sent those patients an announcement that he was associating himself with the American Institute of Plastic Surgery. Litigation between Respondent and the Center principals followed, including a legal action by Respondent to obtain patient records. The litigation over the records concluded with the agreement by the Center to provide records as needed, but they have provided Respondent with incomplete records. A. S. first contacted the Center in June 1995 after seeing an advertisement on television. She chose the Center and two other facilities for plastic surgery that she was considering. At the time, A. S. was 48 years old. Wanting to improve her appearance, A. S. wanted a face lift and work on her lower eyelids. She had had her lower eyelids done in 1978 or 1979 and had had a “mini-lift” in 1984. A. S. met Respondent during her first visit to the Center. A. S. and Respondent spoke for 15-20 minutes. Respondent asked her what procedures she wanted done, and she said that she wanted a face lift and work on her lower eyelids. He showed her a copy of his resume and marked a picture of a face, as they discussed procedures. A. S. did not fill out any forms or questionnaires. Respondent did not explain much concerning the procedures that A. S. was contemplating. He mentioned that she would have a thin line, which would not be noticeable, under her eyes and told how long the stitches would remain in place. He did not discuss the possibility of scarring or other risks associated with the surgery. Following her visit with Respondent, A. S. saw Mr. Davis. They discussed costs and financing. Mr. Davis gave her an estimate of the cost of the surgery that she was considering. A. S. had already checked another plastic surgery center and, later on the same day that she visited the Center, she visited the third, and last, plastic surgery facility that she was considering. The next day, Mr. Davis called A. S. and asked if she had made a decision. Mr. Davis said that Respondent had told him that Respondent wanted to do A. S.’s nose, evidently for aesthetic reasons. Mr. Davis offered the nose work at no additional charge. Although Respondent had not offered to do A. S.’s nose for free or for a charge, he was aware that Mr. Davis would offer free additional work of this kind as an incentive to the patient to select the Center for the work that she was already considering. A. S. talked the matter over with her daughter. A. S. decided to have the surgery at the Center. She then informed Mr. Davis of her decision. Three to five days later, A. S. visited the Center to discuss payments with Mr. Davis because she did not have all of the money necessary for the surgery. During this visit, Mr. Davis suggested a brow lift. He said that Respondent was good at this procedure and would be working in this area anyway. At the end of this visit, a nurse gave A. S. some paperwork prohibiting her from smoking for two weeks before the surgery due to the anticipated bleeding. A. S. had smoked one pack of cigarettes a day since she had been a teenager. A. S. discussed the effect of smoking on the surgery with the nurse, but not with Respondent. As directed, she stopped smoking and never resumed smoking again. A. S. next visited the Center on June 26, 1995, for the surgery. No one performed a physical examination of A. S. On this date, Respondent performed a browlift, rhinoplasty, and facelift. After A. S. awoke from the general anesthesia, she did not receive any instructions from Respondent or staff regarding the care of her bandages, which extended across a large part of her face and top of her head. She was scheduled to return to the Center two days later. A. S.’s daughter drove her home. Once they got there, she noticed that her mother’s face seemed grey. A. S. told her to call Respondent. The daughter informed his answering service of her mother’s condition. She then waited one-half hour for Respondent or his staff to contact her. After hearing nothing, the daughter called the answering service again and waited another half-hour. After a third call and another half-hour wait, Respondent called A. S. and told her to cut the bandage under her neck. By cutting the bandages, A. S. revealed an open cut on her neck. When she returned for her followup visit two days later, A. S. asked Respondent about the cut, which extended along the right side of the neck below the ear. Respondent assured her that it would close up, which it did. When Respondent expressed concerns about her eyes and a dent in her nose, Respondent assured her that they would discuss these matters after the swelling went down. About one week later, Respondent returned to the Center for a second followup visit. During the second followup visit, Respondent removed the stitches. Now that some of the swelling had gone down, A. S. discovered that Respondent had not performed the surgery on her lower eyes. A. S. could not recall Respondent’s explanation for not performing this surgery. A. S. complained to Respondent that, since the surgery, her right eye had become smaller than her left eye, the right eyebrow had become lower than the left eyebrow, and the right side of her face from the eye down had become looser. Also, she complained about the extensive marks, scarring, loose skin, redness, and a dent under her chin; the dent in her nose and a misshapen right nostril; a swollen bump on her left cheek; a big chunk of skin gone from her hairline; and a gully on the left side of her face. Respondent assured her that he would fix these problems with revisions to the eyes and nose and the area under the neck. He did not offer any revisions to hair line, whose appearance worsened as the swelling reduced. Respondent later performed some relatively minor revisions to the right side of A. S.’s face at no cost to A. S. He reset the remaining revisions for a date in mid-December, 1995. Despite A. S.’s persistence at trying to obtain the additional revisions, Respondent failed to perform them. Repeatedly, Center employees canceled scheduled surgery dates, claiming that Respondent was ill or busy with unscheduled surgery. They rescheduled the December surgery to a date in mid- February, 1996. When she reported on this date, a Center employee took her to Mr. Davis, who informed her that the Center had lost money on her surgery and would not perform revision surgery until she paid additional money. They rescheduled her surgery for a date in late March. When A. S. reported on the date for her surgery in March, Mr. Davis told her that they would not do the revision surgery until she paid another $300. A. S. charged this sum on her credit card, so they would do the surgery. Mr. Davis told her that Respondent was too busy, and he rescheduled the surgery for April 8. On April 8, when A. S. reported for surgery, a Center employee sedated A. S., but, after A. S. waited a couple of hours, another Center employee informing her that the surgery could not take place either because Respondent was not coming into work that day or he was in emergency surgery. When A. S. called from home later that day to reschedule the surgery, a Center employee told her that Respondent was in surgery. The employee advised A. S. to call the Center each morning to see if Respondent had any cancellations. A. S. did as advised, but the Center was never able to accommodate her. Subsequently, A. S. sent Respondent two or three letters and left telephone messages for him to contact her on at least ten occasions. Realizing that Respondent and the Center would not perform the revision surgery, A. S. went to another plastic surgery facility in 1998 for work on her right nostril and under her neck. A surgeon repaired the nostril, but, due to financial constraints, could not do all of the work required to repair the damage under A. S.’s neck, which would require about $4000 in surgery. In the meantime, Respondent sent A. S. a card announcing the relocation of his practice to the American Institute for Cosmetic Surgery. A. S. wrote Respondent a letter at his new address, but Respondent never responded. A. S. never sued Respondent. All she wanted was that he perform the revisions that she could not afford to purchase elsewhere so as to reduce or, if possible, eliminate the deformities that Respondent caused surgically. Respondent violated the applicable standard of care in several ways. First, preoperatively, his evaluation of A. S. was scanty. He did not take an ample history, and he did not adequately evaluate her medical status. He did not prepare a surgical plan with a description of all risks and a discussion of these details with the patient. Perhaps most importantly, Respondent never performed a physical examination of A. S. before surgery. Respondent violated the applicable standard of care operatively. The results in this case are so substandard in number and degree as to preclude assigning the outcomes to bad luck, as opposed to a hurried, careless surgery. Respondent violated the applicable standard of care postoperatively. He did not adequately the many problems that he caused. Perhaps most obviously, he failed to adequately treat the open wound in the neck, and he failed to form a plan to address the many revisions necessitated by his careless surgery. The Board of Medicine has previously disciplined Respondent for, among other things, his deviation from the applicable standard of care in treating three plastic surgery patients whose surgery he performed in 1995-96 and 1998.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(m), Florida Statutes, in his treatment of A. S. and revoking his license. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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, 2000. COPIES FURNISHED: Tanya Williams, Executive Director Board of Medicine Department of Health Bin C03 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jerry C. Lingle 1419 Northeast 16th Terrace Fort Lauderdale, Florida 33304
The Issue Whether Proposed Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006, constitute an invalid exercise of delegated legislative authority?
Findings Of Fact Standing. The Petitioners, Medivision, Inc., and Tampa Surgi-Center, d/b/a Ambulatory Surgery Center, have standing to challenge the proposed rules at issue in these cases. See the affidavits of Larry Cyment and Donna McMillan. Intervenor, Florida Hospital Association, Inc., has standing to participate in these cases. See the affidavit of Pat Haines. The following Intervenors have established their standing to participate as intervenors in these cases through testimony or affidavit: Cataract Surgery Center, Cortez Foot Surgery Center, Ambulatory Surgery Center of Bradenton, Tampa Outpatient Surgical Facility, Naples Day Surgery, Ambulatory Surgical Center, Specialty Surgical Center and Tallahassee Single Day Surgery. Eye Surgery Center, The Eye Associates, FW Associates and Cordova Ambulatory Surgical Center have failed to prove their standing to participate in these cases. The Proposed Rules; Purpose and Adoption. The Health Care Cost Containment Board (hereinafter referred to as the "Board"), published Rules 10N-6.002, 10N-6.003, 10N-6.004, 10N-6.005 and 10N- 6.006 (hereinafter referred to as the "Proposed Rules"), in Volume 16, Number 12, of the Florida Administrative Weekly (March 23, 1990). The purpose of the Proposed Rules is to collect data concerning the provision of ambulatory surgery services in the State of Florida. Data collected by the Board will allow a comparison of patient charges and will create an additional bases for the analysis of trends in the health care field. In particular, data collection will promote the analysis of shifts in the provision of health care from inpatient to outpatient settings. Data concerning patient identity, geographic location, diagnosis, procedures performed and charges for services is required to be collected and submitted to the Board pursuant to the Proposed Rules. In June of 1989, the staff of the Board presented a study to the Board concerning the growth of ambulatory health care services. Staff recommended that the Board direct that steps be taken to explore the possibility of collecting ambulatory surgery data. The Board accepted the recommendation and appointed a Technical Advisory Panel. The Technical Advisory Panel appointed by the Board consisted of nine representatives of various interested groups. Two members were from freestanding ambulatory surgery centers and two members were from hospitals providing ambulatory surgery services. At meetings of the Technical Advisory Panel in July, August, September and October, 1989, the collection of ambulatory surgery services data was considered. The Technical Advisory Panel discussed collection costs, the type of data to be collected, implementation dates, legislative authority, methods of submitting data and the scope of data collection. The Board was made aware of the Technical Advisory Panel's efforts through minutes of the Panel's meetings and other materials provided to the Board. The collection of ambulatory surgery services data was considered by the Board at its October, November and December, 1989, meetings. The Proposed Rules were approved by the Board at its December, 1989, meeting. There is no statutory authority which specifically provides that data may be collected by the Board from "freestanding ambulatory surgical centers." The Board cited Section 407.03, Florida Statutes (1989), as the specific authority for the Proposed Rules. The Board cited Sections 407.003, 407.03 and 407.08, Florida Statutes (1989), as the laws implemented by the Proposed Rules. Scope of the Proposed Rules. Ambulatory surgery services are provided in a variety of settings: hospitals (e.g., acute care, psychiatric and rehabilitation), licensed freestanding ambulatory surgery centers, physician offices and other unlicensed health care facilities. The Proposed Rules provide that all licensed hospitals included in Groups 1 through 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual which provide outpatient surgery services and all licensed ambulatory surgery centers in Florida are required to collect and submit 45 data elements to the Board. Psychiatric hospitals and rehabilitation hospitals are not subject to the Proposed Rules. Physicians' offices and other unlicensed health care providers are also not subject to the Proposed Rules. The Proposed Rules are limited to licensed providers of ambulatory surgery services so that the Board's staff can insure that all members of the groups selected data actually collect and report data. The Board cannot insure that all unlicensed providers of ambulatory surgery services, such as physicians' offices, comply with the Proposed Rules. Therefore, if data was required to be collected and submitted by unlicensed providers, the data would be less reliable. The weight of the evidence failed to prove that the requirement of the Proposed Rules that only hospitals included in Groups 1 and 10 and Group 14 of the HCCCB Florida Hospital Uniform Reporting System Manual and licensed freestanding ambulatory surgery centers collect and submit data constitutes an invalid exercise of delegated legislative authority. Specific Data vs. Aggregate Data. The Proposed Rules require the collection and reporting of 45 specific data elements. Aggregate data concerning ambulatory surgery services could be obtained from insurance companies and used by the Board as an alternative to the more specific data required to be collected pursuant to the Proposed Rules. Aggregate data is a compilation of specific data. Aggregate data can be used to comply with the Board's statutorily required functions. If aggregate data is used, however, it is likely that reporting will be incomplete. Not all information is reported to insurance companies concerning outpatient activity. Therefore, aggregate data obtained from insurance companies would not cover 100% of ambulatory surgery services provided by reporting entities, resulting in the potential for presenting an incomplete or inaccurate picture of ambulatory surgery services. The recommendations and conclusions which can be reached from aggregate data are limited. Specific data allows more flexibility for research purposes. Specific data will assure greater accuracy and comparability of data. Recommendations and conclusions reached from specific data should be more accurate. In order to insure comparability of data, specific data concerning patients, geographic location, diagnoses, procedures and charges must be collected. The Board collected aggregate data concerning ambulatory surgery services through a special study. The Board collected the data from hospitals and, on a voluntary basis, from licensed ambulatory surgery centers. "Typical" charges for specified ambulatory surgery procedures was collected. This collection effort was flawed by the lack of specific data. The accuracy of the reports based upon the aggregate data was criticized publicly. The reports were even criticized by one of the witnesses called to testify by Intervenors, Cataract Surgery Center, et. al. The weight of the evidence failed to prove that the requirement of the Proposed Rules that specific data be collected and submitted instead of aggregate data constitutes an invalid exercise of delegated authority. Confidential Patient Data. Some of the data elements to be reported pursuant to the Proposed Rules constitute confidential patient information. Disclosure of confidential patient information is prohibited by Florida law. The Proposed Rules do not require or authorize disclosure of confidential patient information. The manner in which the data collected will be distributed has not yet been decided upon by the Board. The evidence failed to prove that the Board will not comply with prohibitions against disclosure of confidential patient information. The weight of the evidence failed to prove that the requirement of the Proposed Rules that confidential patient information be reported to the Board constitutes an invalid exercise of delegated authority. Computer Use. The Proposed Rules require that data be submitted by computer tape or computer diskette. Therefore, data will have to be input into a computer system. The Proposed Rules specify the format data must be in when submitted. Most of the language of the Proposed Rules is computer terminology. The terminology of the Proposed Rules will require some knowledge of computers to carry out the requirements of the Proposed Rules. The language of the Proposed Rules is intentionally designed to convey technical information. The general purpose and requirements of the Proposed Rules does not take any special knowledge to understand. Requiring the submission of data by electronic means is designed to assure the accuracy and confidentiality of the data. The requirement of the Proposed Rules that data be reported in computer form and the use of computer terminology does not constitute an invalid exercise of delegated legislative authority. Errors in the Proposed Rules. Proposed Rule 10N-6.002(2) defines "Ambulatory Surgery Services" as procedures "provided in a hospital in its dedicated ASC ..." [Emphasis added]. Instead of "ASC" the Board intended to use the terms "operating room." Proposed Rule 10N-6.005 contains a list of the data elements to be collected and reported to the Board. This Proposed Rule contains the following errors or unclear language: Item 20 is "Facility Fee - Pri. Proc." "Pri. Proc." is an abbreviation for primary procedure. Items 21-24, similar to Item 20, contains the abbreviation "Sec. Proc." instead of secondary procedure. Items 25-27 contain a reference to "Page 3". As published in the Florida Administrative Weekly, there is no page 3. Item 35, which deals with expected methods of payment, refers to "Comm. Ins. (incl. BCBS)." This reference is an abbreviation for commercial insurance (Blue Cross Blue Shield). Item 44, patient birth date, uses the abbreviation "MMYYYY." This abbreviation should be "MMDDYY." Proposed Rule 10N-6.006 refers to "Primary Diagnosis Code" and "Secondary Diagnosis Code." The Rule should refer to Primary and Secondary "Procedure" Code. The mistakes identified in findings of fact 38-40 are not significant enough to characterize the rule as vague. Nor are these mistakes sufficient enough to otherwise conclude that the Proposed Rules constitute an invalid exercise of delegated legislative authority. Economic Impact. The Economic Impact Statement (hereinafter referred to as the "EIS"), issued with the Proposed Rules provided the following concerning the economic impact of the Proposed Rules on the Board: ESTIMATE OF THE COST OF IMPLEMENTATION: The agency will be affected by the costs of rule promulgation and by the demands placed upon staff time to assure compliance with the rules and to analyze the data collected. Costs for these activities are estimated to be approximately $85,000 per year. The weight of the evidence failed to prove that this portion of the Board's EIS is unreasonable. The EIS provided the following concerning the economic impact of the Proposed Rules on persons affected by the Proposed Rules: ESTIMATE OF THE COST OF IMPLEMENTATION: Implementation by affected facilities will cost approximately $2.9 to $3.1 million. These funds will be used to develop the programs necessary to collect and submit the data required. On-going compliance will have a much less significant impact. . . . . ESTIMATE OF COST TO ALL PERSONS DIRECTLY AFFECTED BY THE RULE: The initial cost to Florida hospitals and freestanding ambulatory surgery centers (ASC) would be from approximately $2.9 to $3.1 million to develop the reporting system necessary to generate the necessary data elements. On-going annual cost to the hospitals and free standing ASCs would be substantially less after the first year's start-up procedures are adopted. . . . . The EIS is insufficient because it does not adequately discuss the costs (implementation and ongoing costs) to affected persons or the impact of the Proposed Rules on small business. The weight of the evidence proved that the Proposed Rules will have an economic impact on affected persons. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the implementation cost affected persons can be expected to incur as a result of the Proposed Rules. As indicated in the EIS, the Board's determination of the estimate of the economic impact on affected persons was based upon surveys the Board distributed to licensed ambulatory surgery centers, an estimate of costs that hospitals incurred in implementing the Board's detailed patient data collection rule, the Board staff's experience with computer costs (including the collection and entry of data) and consultation with a computer expert familiar with the Proposed Rules. The surveys relied upon by the Board were distributed to all licensed freestanding ambulatory surgery centers. A total of 91 surveys were distributed. The Board requested that the surveys be returned within one week. Forty-one responses to the surveys were received by the Board from licensed freestanding ambulatory surgery centers. The responses constitute hearsay. Findings of fact concerning whether the information contained in the responses is correct, therefore, have not been made. The responses to the surveys have, however, been relied upon to make findings of fact concerning what information the Board based its EIS on. The Board received the following pertinent responses to the surveys from licensed freestanding ambulatory surgery centers: (1) 26 of the responders use computers, 12 have no computer capacity and 3 have some computer capacity; 17 or 18 different software programs are in use; and, (3) the costs to implement the proposed collection of data ranged from $0 to $50,000.00. Twenty- six responders indicated that they did not know how long it would take for them to implement the proposed collection of data. The Board determined that the average implementation cost for licensed freestanding ambulatory surgery centers reported in the responses to its survey was $18,975.00 and that the average implementation time was 13 weeks. The Board rounded up the average cost reported to it in the surveys and estimated that the cost of implementing the Proposed Rules at licensed freestanding ambulatory surgery centers would be $20,000.00. Based upon the existence of 85 licensed facilities, the Board estimated the total implementation cost for licensed freestanding ambulatory surgery centers to be $1,700,000.00 ($20,000.00 x 85). The Board estimated that the maximum cost of implementing the Proposed Rules at affected hospitals would be $2.00 per patient record. This estimate was based upon the Board's estimate of the cost of hospital compliance with the Board's detailed patient discharge data rule. Based upon an estimate of 600,000 patient records a year which will have to processed as a result of the Proposed Rules, the Board estimated the total cost of implementation in affected hospitals to be $1,200,000.00. The Board concluded that the total minimum cost of implementing the Proposed Rules will be $2,900,000.00 ($1,700,000.00 cost for freestanding ambulatory surgery centers plus $1,200,000.00 cost for affected hospitals). The Board discussed the cost of implementing the Proposed Rules with J. Thomas Solano, an expert in computers. Mr. Solano estimated that the cost of modifying an existing computer system (small to mid-range computer) to comply with the Proposed Rules would be $4,000.00 to $10,000.00. The Board used the highest estimate, $10,000.00, and multiplied this cost by the number of affected persons (85 freestanding ambulatory surgery centers and 220 hospitals x $10,000.00). This resulted in a rounded-up estimated implementation cost of $3,100,000.00. The Board concluded that the total maximum cost of implementing the Proposed Rules will be $3,100,000.00. Some of the data to be collected and reported pursuant to the Proposed Rules is already being collected by affected persons. Therefore, the primary cost of complying with the Proposed Rules will be associated with modifying existing computer software and/or hardware. The cost of modifying an existing computer system can fluctuate widely. As a general rule, computer users with existing software must rely upon their existing software provider to make modifications. The cost of modifying software can, therefore, be much higher than Mr. Solano estimated. As an alternative to modifying existing systems, affected persons can acquire a freestanding personal computer and software which can be used to comply with the Proposed Rules. The cost of such an acquisition should be approximately $2,500.00 to $5,600.00. Intervenor, T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it will have to spend approximately $14,000.00 to $20,000.00 to implement the Proposed Rules. This estimate is based upon a letter purportedly from the Intervenor's computer company. The information contained in the letter is hearsay. The estimated implementation costs are, therefore, not supported by admissible evidence. The estimate, even if supported by competent substantial evidence, is within the Board's estimated implementation costs and, therefore, fail to prove that the Board's EIS is unreasonable or that the Board failed to fully consider the economic factors or impact. Intervenor, Cataract Surgery Center, estimated implementation costs of $1,900.00. This amount is limited to additional maintenance fees, supplies and personnel costs. Cataract Surgery Center believes there will no charge from its computer vendor to modify its software. Cataract's estimated costs are reasonable and within the Board's estimates. Ambulatory Surgical Center of Lake County (hereinafter referred to as "Lake"), does not own a computer. It uses the computer system of its physician owners. Lake considered more than one method of complying with the Proposed Rules. It considered buying a personal computer and estimated it would cost $5,000.00. This cost is consistent with the estimates of the Board. Lake also considered purchasing an integrated hardware and software package. It estimated that such a system would cost $40,000.00 to $50,000.00. The estimate is based upon hearsay. Even if the evidence concerning the cost of an integrated system is accepted as correct, the evidence fails to prove that such costs are necessary to comply with the Proposed Rules. The estimate for this system is based upon Lake's decision that it would perform other functions with the computer system, including storing management information and performing billing functions. These functions are not required in order to comply with the Proposed Rules. Lake currently treats approximately only 300 patients annually. The weight of the evidence failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the implementation cost which will be incurred by affected persons. The weight of the evidence also failed to prove that the inadequate treatment of implementation costs in the EIS was fully considered by the Board. Therefore, the treatment of implementation costs in the EIS constitutes harmless error. Although the primary costs to affected persons caused by the Proposed Rules will be associated with implementation of the Proposed Rules, there will also be certain costs associated with ongoing compliance with the Proposed Rules. There will be ongoing costs for the collection of data, entry of the data into a computer and reporting data to the Board. Ongoing costs caused by the Proposed Rules will be greater if an affected person with an existing computer system acquires a freestanding computer system instead of using the existing system. The Board's statement in the EIS concerning ongoing costs was not based upon information from affected persons. The statement concerning ongoing costs does not indicate what the ongoing costs of compliance with the Proposed Rules will be. It only indicates that it will be less than the initial implementation costs associated with the Proposed Rules. Although the weight of the evidence did not prove the estimated total amount of ongoing costs to affected persons from the Proposed Rules, the weight of the evidence failed to prove that ongoing costs will be greater than the estimated total amount of implementation costs. T.S.D.S., Inc., d/b/a Tallahassee Single Day Surgery Center, estimated that it would incur ongoing costs of approximately $6,000.00. This estimate is reasonable. Cataract Surgery Center estimated that it would incur ongoing costs of $41,600.00, or $20.00 per case, to comply with the Proposed Rules. Cataract Surgery Center's estimated costs include the following costs: reel purchase; handling; reel preparation; collection of billing data; process of sending information to the Board; clarification of errors; additional record production; and response to public inquiries. Cataract Surgery Center's estimated costs are not reasonable. The estimated time to comply with the Proposed Rules is excessive and some of the tasks, i.e., collection of billing data, are not required by the Proposed Rules. Cataract Surgery Center's conclusion that it may have an increase in maintenance fees is reasonable. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of the ongoing costs affected persons can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of ongoing costs in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated authority because of the ongoing cost which will be incurred by affected persons. The EIS contains a statement that the Proposed Rules should have no economic impact on small business. In reaching this conclusion the Board failed to take into account the legal definition of "small business" contained in Florida Statutes. The Board did, however, actually consider the impact the Proposed Rules would likely have on small ambulatory surgery centers subject to the Proposed Rules. The Board attempted to reduce the economic impact on small ambulatory surgery centers by allowing affected persons to file data on computer tape or on diskette. By allowing the use of diskettes for reporting data, the Board made it possible for affected persons to use personal computers to comply with the Proposed Rules. Delayed submission of some data elements was also allowed in order to reduce the impact on small facilities. It is unlikely that the Board would have made further modifications of the Proposed Rules had the legal definition of "small business" been considered. The weight of the evidence failed to prove what, if any, reasonable modifications should have been taken by the Board to accommodate any economic impact on small business. The weight of the evidence failed to prove whether any of the entities that participated in the proceeding were small businesses. Those entities, although meeting the definition of small business with regard to the number of employees they have and their net worth, failed to prove whether they are "independently owned and operated." See Section 288.703(1), Florida Statutes (1989). The weight of the evidence failed to prove if any person affected by the Proposed Rules is a small business. The weight of the evidence failed to prove that the Board did not fully consider the asserted economic factors and impact of small business which can be expected to incur as a result of the Proposed Rules. Therefore, the treatment of the impact on small business in the EIS was harmless error. The weight of the evidence also failed to prove that the Proposed Rules constitute an invalid exercise of delegated legislative authority because of the impact on small business. The Petitioners and Intervenors presented evidence concerning a number of actions which the Board did not take during its consideration of the economic impact and factors of the Proposed Rules and its preparation of the EIS. This evidence proved only that there were other steps which the Board could have taken during its preparation of the EIS. The Petitioners and Intervenors failed to prove, however, that the steps which the Board did take were not sufficient. The Petitioners and Intervenors therefore failed to prove that the steps which the Board did not take were required or necessary.
Findings Of Fact Same Day (CON 3116) and Doctors (CON 3115) filed applications for a CON to establish a freestanding ambulatory surgical center (FASC) in Dade County, Florida, in the batching cycle that cloned December 15, 1983. Upon the Department's denial of their applications, Same Day and Doctors filed a timely request for a Section 120.57(1) hearing. The Department has not formally adopted a rule which establishes a need formula for calculating and predicting the gross and net need for freestanding ambulatory surgical centers. However, the Department has developed, and consistently applied, a reasonable methodology for assessing the need for these facilities. Under its methodology, the Department attempts to project, two years in the future, the number of outpatient surgical procedures that will not be accommodated at the county's existing and approved surgical facilities. The first step in calculating this future need is to establish the county's current total surgical use rate, hospital outpatient surgical use rate, and FASC surgical use rate. These use rates are an expression of the actual number of surgeries performed, in each category, for each increment of 1,000 county residents. Utilizing the current total surgical use rate, the Department then projects the total surgical demand for the county according to its 1988 population projection. Thirty percent of total surgical demand, in accordance with industry standards, reflects the gross need for outpatient surgical services in 1988. To establish the net need for outpatient surgical services, the Department subtracts from the gross need established for outpatient surgical services those procedures projected to be performed on an outpatient basis at existing hospitals and freestanding centers. This figure is calculated by applying the current outpatient surgical use rate of existing hospitals and freestanding centers to the county's 1988 population projection. The Department further subtracts, from the gross need, the number of surgical procedures which represent the break even point for approved but not opened freestanding centers. The result reflects need, or lack of need, for the county at the two-year planning horizon. The Department's methodology, when applied to the facts of this case, establishes that there is no numerical need for an additional FASC in Dade County, Florida. The record is otherwise devoid of any proof which would establish a numerical need for a FASC in the county. However, notwithstanding a lack of numerical need, the Department has established a policy that If "preexisting clinics," which have been performing surgical pro- cedures similar to those proposed to be performed in the applicant's facility, seeks licensure as ambulatory surgical facilities, they must document that the facility has been operating profitably, and has performed a sufficient number of procedures to exceed the calculated break even level of operation. Special consideration will be given to approval of the project, after assuring that all other criteria are satisfied. Same Day's CON Application Same Day proposes to establish a FASC in Dade County, Florida, at a total cost of approximately $600,000.00. Same Day proposes to perform only non- emergency, elective outpatient surgical procedures. During the first three years of operation, Same Day will only perform ophthalmic surgical procedures. After three years, Same Day will operate as a general all-purpose FASC. It has been operating profitably during the most recent twelve-month reporting period, and the number of procedures performed exceeds the calculated break even level of operation. Same Day has held a Medicare Provider Number and Occupational License for over two years, and is a "preexisting," clinic entitled to special consideration for CON approval. Same Day currently employs all personnel necessary to staff its proposed FASC. Same Day will encounter no difficulty in recruiting additional personnel should the need arise. Jerry Zelman, M.D., Ophthalmologist and President of Same Day, is a leading ophthalmologist in Dade County. Dr. Zelman holds staff privileges at numerous Miami hospitals, is a member of an investigation and peer review board at a Miami hospital, and is a pioneer in outpatient ophthalmic surgical procedures and advanced ophthalmic surgical procedures. Same Day has established that it has the ability to provide quality of care in an FASC setting. Same Day proposes to finance the FASC facility through a mixture of equity and commercial financing. Same Day currently possesses in excess of $200,000 worth of equipment, including operating room tables, lasers and microscopes, and has budgeted approximately $120,000 for additional equipment, as needed. The Tower Bank of Miami is committed to Same Day to fund up to $600,000, 100 percent of the proposed project. Apart from bank financing, the principals of Same Day have sufficient personal resources to provide total funding for the project. Same Day has established by competent substantial evidence that its proposed FASC will be financially feasible on an immediate and long-term basis, that the costs and methods of construction of the proposed facility are reasonable, and that its projected costs and charges for ambulatory surgical services are reasonable. Doctors' CON Application Doctors proposes to establish an FASC in Dade County, Florida, comprised of two operating rooms for multi-specialty purposes, particularly ophthalmic surgery. Doctors has not selected or purchased a specific site in which to locate its proposed facility, but is tentatively interested in locating it in the northwest area of Dade County. Dr. Weiss, one of two principals in Doctors, currently practices at southern Miami Beach, and the majority of his patients reside on Miami Beach. Northwest Dade County is not within Dr. Weiss' primary service area, and it is doubtful that he would utilize the proposed facility even if it were approved. Dr. Weiss' intent was to encourage other physicians to utilize the proposed facility, though he had not secured any commitments. There are at least 31 acute care hospitals in Dade County which offer outpatient surgical services. Additionally, there are two freestanding centers in operation and an additional seven centers which are approved but not yet opened. There is no current, or projected, need for outpatient surgical services, or an access problem, in Dade County. In addition to failing to establish need for its proposed facility, Doctors failed to offer any evidence to establish that it could provide quality of care; that it had available resources, including health manpower, management personnel, and funds for capital and operating expenditures, to accomplish its project; that its proposal had immediate and long-term financial feasibility; that its proposal would foster competition and serve to promote quality assurance and cost-effectiveness; and, that the costs and methods of the proposed construction were the most effective methods of construction.
The Issue Whether Respondent, an abortion clinic, failed to maintain emergency medications and related supplies in violation of Florida Administrative Code Rule 59A-9.0225(1) and the penalty, if any, that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been licensed as an abortion clinic authorized to perform first and second trimester abortions. The facility at issue in this proceeding is located in North Miami Beach, Florida. Ms. Ody conducted an unannounced inspection of the subject facility on April 21, 2011. Ms. Herne was the only other person at the facility during the inspection. Ms. Ody determined that medications inside an orange box located in the subject facility that served as a crash cart included emergency medications that were out-of-date. Those medications were one 500-ml bag of Lactated Ringer's Intravenous Solution (expired April 2009), a one-mg vial of Atropine (expired November 2010), and one 2 percent Llidocaine Hydrochloride injection (expired November 2010). The crash cart belonged to a certified registered nurse anesthetist, who had worked at the facility at one time. That person had not worked at the facility for several years, and had not returned to claim her property. Dr. Rosenthal's efforts to contact that person were unsuccessful. Dr. Rosenthal and Ms. Herne testified, credibly, that they considered the contents of the crash cart to be that of the former employee and they had never used or attempted to use the contents of the crash cart. On April 21, 2011, the facility had no surgical procedures planned, and no patients were present. On September 12, 2011, Ms. Ody and Ms. Render inspected the subject facility. Ms. Herne was the only other person present during the inspection. During the course of their inspection, they found three bottles of antiseptic located inside of a cabinet in the facility's operating room. Each bottle contained the name Humco Strong Iodine. Two of the bottles of iodine expired in August 1995 and the third bottle expired in May 2005. The three bottles of iodine were not used for surgical procedures. The testimony of Ms. Herne and Dr. Rosenthal established that the iodine was used solely to reduce the odor of infectious waste, which was put in a small container in the operating room until it could be transferred to a larger container in an adjacent room. On September 12, 2011, the facility had no surgical procedures planned, and no patients were present. Petitioner failed to prove that the subject facility did not have appropriate emergency medications or supplies on either of the inspection dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the charges against A Medical Office for Women, Incorporated, d/b/a Medical Office for Women set forth in its Administrative Complaint. DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2012.
