The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint dated March 3, 2000, and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Robert Gibson McLester, III ("McLester") is a licensed pharmacist 2 with a heretofore unblemished record. McLester graduated from the University of Florida with a degree in pharmacy in August 1977. He was licensed by the State of Florida to practice pharmacy in February 1978. He currently holds an Alabama pharmacy license, and was previously licensed in Mississippi but at some point ceased to pay the state's licensing fee; the license thus lapsed by operation of law. McLester received a Master of Science degree in hospital pharmacy from the University of Mississippi in December 1987 and a Master of Health Care Administration from the same institution the following May. McLester entered the Navy as an aviator cadet in June 1965, and was commissioned as a naval aviator in February 1967. He flew 103 missions with Attack Squadron 147 and was honorably discharged as a lieutenant in December 1970. Following a brief stint in the insurance and investment business, McLester applied unsuccessfully to medical school. McLester entered the University of Florida's pharmacy school in September 1974 and following his graduation in August 1977, has been continuously employed as a pharmacist when not pursuing advanced degrees in pharmacy and related fields. Much of McLester's pharmacy employment has been in the Navy, which he reentered in February 1978 as an ensign in the Medical Service Corps. McLester served in a variety of posts before retiring as a lieutenant commander in August 1992, including at the National Naval Medical Center in Bethesda, Maryland, where he supervised in excess of 25 pharmacists and pharmacy technicians in the preparation of an average of 1600 outpatient prescriptions per day. McLester continued the practice of pharmacy as a civilian, working briefly as a relief pharmacist for the Eckerd Drug chain in the Vero Beach area before being hired full time by Winn-Dixie in August 1992. Under McLester's supervision, Store No. 2358 enjoyed high sales volume and was used as a training site for other Winn-Dixie pharmacies. At all times during McLester's employment at Winn- Dixie, reports of annual inspections of his pharmacy conducted by the Agency for Health Care Administration ("AHCA") pursuant to law showed no deficiencies of any kind. McLester worked at the Winn-Dixie Store No. 2358 until June 17, 1998. McLester's separation from Winn-Dixie was voluntary. McLester left Winn-Dixie because he considered the hours assigned to him by his new supervisor, Steve Howard ("Howard") to be "slave hours." Following McLester's departure, sales and customer satisfaction at Store No. 2358 deteriorated. For most of the time relevant to this case, McLester was responsible for filling in the neighborhood of 150 prescriptions per day. That number placed his store at the high end of Winn- Dixie pharmacy productivity. 3 During the course of his employment at Winn-Dixie, McLester had occasion to report approximately a dozen instances of prescription drug fraud to the authorities, including St.Lucie County Detective Scott Silverman (Silverman). Following his resignation from Winn-Dixie, McLester worked briefly with various services which would find him work as a relief pharmacist. On the instructions of Howard, McLester was not permitted to work at any of the Winn-Dixie stores in the area. In October 1998, McLester found full-time employment with Doctors' Clinic Pharmacy in Vero Beach, a "closed pharmacy" which serves only the patients of that multi-specialty practice. During his term of employment at Winn-Dixie, McLester was assisted by about a half dozen pharmacy technicians. Pharmacy technicians are licensed by the state and must work under the close supervision of a registered pharmacist. Tasks which the law permits to be delegated to pharmacy technicians and which, in fact, are typically delegated to a pharmacy technician include ordering drugs, including controlled substances; receiving drugs and other inventory; counting and transferring drugs from their original containers to packages for individual prescriptions; shelf maintenance; department maintenance; and stocking shelves. Other tasks which pharmacy technicians may legally perform, and which were in fact performed by technicians at Winn-Dixie stores, include logging invoices into the computer system for payment; verifying orders shipped into the store; answering telephones; taking refills from patients or doctors provided that there is no change in any element of the prescription (i.e. instructions to the patient, dosage, etc.); requests to doctors to issue new prescriptions on behalf of a patient; preparing labels and delivering filled prescriptions to the pharmacist for final verification. Because of the nature of the tasks delegated to pharmacy technicians, the relationship between pharmacist and technician must be one of, as several witnesses testified, implicit trust. McLester trusted all of the pharmacy technicians with whom he worked at Winn-Dixie. One of the Winn-Dixie pharmacy technicians, Tonya Tipton ("Tipton") betrayed McLester's trust, along with the trust of the State of Florida which licensed her, Winn-Dixie which employed her, and several other pharmacists under whose supervision she worked. Weeks after McLester left Winn-Dixie, Tipton's betrayal of trust was discovered. Soon after, she was fired from Winn-Dixie and subsequently arrested for crimes she allegedly committed in and against the Winn-Dixie pharmacy. Tipton's arrest set in motion a chain of events which led to this Administrative Complaint. Following a work-related injury suffered in the early 1990s, Tipton developed a dependence upon prescription painkilling medication, including the narcotic nasal spray Stadol.4 Unbeknownst to anyone, Tipton devised a scheme by which she could steal Stadol from Winn-Dixie, and also obtain Stadol under a forged prescription. At all times prior to Tipton's firing from Winn-Dixie, she was a trusted employee. Tipton fell under suspicion when she stated to a co- worker that a package would be arriving the following day and that it should not be opened. Store employees opened the package nevertheless and discovered it contained Stadol. Thereafter, a fellow pharmacy technician followed Tipton into the ladies' room and discovered empty bottles of Stadol in the wastebasket. Confronted by store employees about her inappropriate instruction to the co-worker not to open the package, as well as the empty Stadol containers in the ladies' room, Tipton admitted only to taking one bottle of Stadol from the Winn-Dixie pharmacy. Abundant circumstantial evidence suggests that Tipton's dependence upon Stadol led her to commit more than the one offense to which she admitted. McLester had been the primary pharmacist on duty at Store No. 2358 during many of the shifts when Tipton was alleged to have illegally obtained Stadol. Following a criminal investigation by Detective Silverman and the arrest of Tipton, McLester's former supervisor, Howard, lodged a complaint against McLester with the Board of Pharmacy. In his letter of complaint, Howard characterized his complaint as an effort to protect the interests of Winn-Dixie "in case this problem was found out." Howard claimed that Mostafa Macida ("Macida"), who had replaced McLester as the store's primary pharmacist,"discovered" that Stadol was being stolen from the pharmacy but this testimony is rejected as inconsistent with the testimony of numerous individuals who, unlike Howard, had personal knowledge of the events surrounding Tipton's arrest. Macida suspected nothing and discovered nothing. Tipton's employment at Winn-Dixie began in February 1995 when she was hired as a pharmacy technician by McLester.5 In that capacity, Tipton worked not only with McLester, but also with then-Head Technician Ava Forsythe (Forsythe). Forsythe trained Tipton in the technicians' duties, including the various methods by which prescription drugs, both controlled and non-controlled, may be ordered. At all times relevant to this case, there are three ways in which Winn-Dixie pharmacies may procure drugs and medical supplies requiring prescriptions for resale to the public. The primary system is a computer-generated daily order. The system was referred to by many witnesses as "the PDX system" ("PDX"). Technicians, working under the supervision of the pharmacist, would review the order to verify that the required types and quantities of supplies were being ordered. When the order was deemed complete, "the button was pushed" and the order electronically transmitted to Winn-Dixie's major drug supplier, Bindley-Western.6 In theory, the computer would accurately track stock in over 2,000 line items. The computer was supposed to automatically add to the inventory based upon what was ordered, and subtract based upon records of what was actually dispensed to customers. In reality, the computer-generated inventory was corrupt on a daily basis. Because of the PDX system's unreliability, technicians often had to make adjustments by hand so that the computerized records would match what was actually in stock. Orders could also be manually keypunched into a unit called a Telxon, which also transmitted orders to Bindley- Western. The Telxon unit is portable. The size of a telephone, the Telxon unit at Store No. 2358 was generally kept in a drawer when not being used. Finally, drugs can be ordered from Bindley-Western and/or from one of two secondary suppliers used by Winn-Dixie from any telephone, whether or not the telephone is located in a Winn-Dixie store. None of the systems used by Winn-Dixie, either singly or in combination, had the ability to flag the fact that hundreds of bottles of Stadol had been ordered and paid for by Winn-Dixie, yet not placed on the shelves as pharmacy inventory in Store No. 2358, during the period of Tipton's employment. Under Winn-Dixie's system, it is possible for a pharmacy technician to order medications unbeknownst to the pharmacist, to have them paid for by Winn-Dixie, and to physically divert them to his possession before the medications were logged in to pharmacy inventory. Once drugs are properly entered into inventory, it is reasonable to expect that the pharmacist could be aware of large amounts of a drug being stolen from the inventory. Any single incident of placing unauthorized drug orders could take place in the two or three minutes the duty pharmacist might be absent to go to the restroom, or have his attention diverted for any reason. Silverman is an experienced police officer, having served for over two decades in various law enforcement positions in Florida. For nearly five years Silverman has been exclusively assigned to work with pharmacies and other law enforcement agencies in St. Lucie County. Silverman's job is to assist in the prevention and prosecution of crimes involving the misuse of prescription drugs. Silverman's involvement in this case began when Tipton sought him out. Tipton knew Silverman because her husband is a fellow St. Lucie County detective, and Tipton herself was a sworn St. Lucie officer. Tipton approached Silverman to confess that she had taken a bottle of Stadol from the Winn-Dixie store where she worked. Tipton's confession was not provoked by an attack of conscience. Rather, after she was fired by Winn-Dixie, she began damage control. As Silverman's investigation progressed, substantial effort was made to determine how Tipton had diverted Stadol and what, if any, other crimes may have been committed. Documents collected in the course of the investigation revealed that Tipton had developed a dependency on prescription painkillers dating to a back injury in 1990 in which she suffered a herniated disc. Tipton developed a dependency on Stadol in 1996, after dealing with pain related to the 1990 injury. Tipton claimed to Winn-Dixie security supervisor Robert Blakely ("Blakely") that she had told McLester of the problem, and that he referred her to her doctor for help. Ultimately, Silverman arrested Tipton on 17 counts of insurance fraud and one count of felony possession of a controlled substance. No evidence was offered regarding the disposition of Tipton's case. No evidence was presented of what, if any, effort was made to determine from Tipton if McLester had any complicity in her crimes. It was clear to Silverman that while Tipton had figured out a way to illegally divert Stadol to her unauthorized use, as of the date of the final hearing, "nobody knows how it was done." 7 There was conflicting testimony as to precisely how much Stadol was diverted by Tipton over the relevant period of time but Tipton's ability to obtain the drug through the use of fraudulent prescriptions and outright theft was audacious in scale. Stadol was a legend drug until June 1997 when the Drug Enforcement Agency upgraded its status to a Schedule IV controlled substance. Prior to October 19, 1996, Tipton had a legitimate prescription for Stadol. On that date, Les Gessley ("Gessley"), a relief pharmacist at Store No. 2358, approved a new Stadol prescription for Tipton under a legend number. Tipton used this approved prescription number subsequently when she herself prepared numerous unauthorized refills under this same number. Each of these unauthorized refills was listed on daily pharmacy logs certified mostly by McLester, but also by other duty pharmacists as well. Because these unauthorized prescriptions were refills rather than original prescriptions, the duty pharmacist was not required to personally view the original written prescription. McLester was the pharmacist on duty a majority of the days on which Tipton is believed to have diverted Stadol illegally. Somewhere between ten and twenty percent of the Stadol believed to have been unlawfully diverted by Tipton from Store No. 2358 was diverted after McLester had ceased to be employed there. Some of the Stadol obtained by Tipton under fraudulent prescription at Store No. 2358 was obtained on days when McLester was not the pharmacist on duty. In addition to Les Gessley and Mostafa Macida, other pharmacists on duty while Tipton was believed to have engaged in the criminal diversion of Stadol are Ted Kline and Al Leota. McLester admitted knowing Tipton had a problem with Stadol but did not know the extent of her problem. Forsythe told McLester that she thought there might be some Stadol missing from the shelves. When she shared her concern with McLester, he instructed Forsythe not to leave Tipton alone in the pharmacy. No evidence placed McLester's conversation[s] with Tipton and other parties about her use of Stadol in the context of when Tipton's alleged diversions occurred. According to Forsythe's unrebutted testimony, If you were that desperate you could order any medication you wanted on the Telxon machine or verbally order without knowledge of the pharmacist knowing what you were doing. And then when the medication comes in, you pay the invoice. You throw the invoice away. You throw the copy that you received from the computer away. The invoice is paid. The only person that will know about it will be the person at the headquarters that pays the payment on the invoice without knowing what is on it and the person gets the medication. Take the medication home via however and no one is the wiser. Winn-Dixie has no security procedures in place, such as searching handbags or packages, to prevent employee theft in the pharmacy. Winn-Dixie's ordering system is tailor-made to be abused by individuals who are, in Forsythe's words, "that desperate." It is not illegal for pharmacy technicians to fill their own prescriptions. It is possible for a pharmacy technician to fill or refill a prescription without the pharmacist knowing that had been done if he was absent from the pharmacy or had his attention diverted in some fashion. It appears that Tipton refilled her own fraudulent prescription on a number of occasions, but that her preferred method of diverting Stadol was outright theft. The Winn-Dixie system by which the pharmacies are stocked is flawed in a manner which allowed Tipton to divert Stadol without being detected by the duty pharmacist. The Department failed to show that McLester knew or should have known that Tipton had diverted Stadol to her unauthorized use at Store No. 2358.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of November, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 17th day of November, 2000.
Findings Of Fact Respondent holds community pharmacy permit number 0007857, which is issued for the location of 7121 West Flagler Street, Miami, Florida 33144. Filimon Galo is the president, and Miriam Galo is the secretary of Gamy Discount Pharmacy, Inc. On December 9, 1985 and on December 11, 1985, investigators for the Department of Professional Regulation conducted a routine pharmacy inspection of Gamy Discount Pharmacy, Inc. They re-inspected Respondent on January 22, 1986. During each of those inspections, Respondent's prescription department was unclean, unsanitary, and overcrowded. During those inspections, the investigators located several outdated medications in the prescription department. Those medications seized on January 22, 1986, bore expiration dates more than 4 months prior to the date of that inspection. Those medications which were seized by Petitioner contained medicinal drugs and are also known as pharmaceuticals. During the January inspection Respondent had no sign displayed stating the hours when the prescription department is open. During each of Petitioner's inspections, the pharmacy had no sign posted concerning generically equivalent drugs. There was no negative drug formulary in the pharmacy at the time of the inspections. On January 22, 1986, the investigators found one container of a prescription drug--prolizin, a medicinal drug-- which was located outside of the prescription department. During the January inspection, no pharmacist was employed at Respondent's pharmacy. During the January inspection, one vial was seized which bore a handwritten label stating "Diabinol." This vial actually contained a generic equivalent of Diabinol. The vial was misbranded in that it was false or misleading by being labeled with the "brand name" instead of the generic name and did not contain the name and place of business of the manufacturer. During the January inspection, a second vial was located which bore no label. This vial contained a medicinal drug Tranxene and was misbranded in that it did not contain the name and place of business of the manufacturer. During the inspections, prescriptions for controlled substances were discovered which did not contain the name and address of the person for whom the controlled substance was dispensed, the initials of the pharmacist filing the prescription, or the date on which the prescription was filled. During the inspections, Respondent pharmacy had no current drug compendium.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered revoking Respondent's community pharmacy permit. DONE and RECOMMENDED this 19th day of December, 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 19th day of December, 1986. COPIES FURNISHED: Rod Presnell, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Enrique Miranda, Esquire 2542 SW 6th Street Miami, Florida 33135 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner’s application for a license as a Registered Pharmacy Technician should be approved.
Findings Of Fact On May 22, 2008, based on a plea of nolo contendere, Petitioner was adjudged guilty of the offense of Unlawful Sexual Activity with a Minor, a second-degree felony. She was placed on five years of Sexual Offender Probation. The special conditions of Petitioner’s probation included the following: a. Restitution to the victim in the amount of $425.00; b. No contact with the victim; and c. Attend parenting classes. The standard conditions of Sex Offender Probation were imposed upon Petitioner, including: (a) A mandatory curfew from 10 p.m. to 6 a.m.; (b) A prohibition on living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate; (c) Participation in a sex offender treatment program; (d) No contact with any children under the age of 18, unless court approved; and (e) A prohibition on working for pay or as a volunteer at any place that children regularly congregate, including but not limited to any school, day care center, park, playground, pet store, library, zoo, theme park or mall. On October 5, 2009, Petitioner submitted an application for licensure as a Registered Pharmacy Technician. On December 9, 2009, the Board voted to deny Petitioner’s application. A Notice of Intent to Deny reflecting the vote was filed on December 31, 2009. Petitioner testified that she has been a pharmacy technician since 1981. There was no evidence presented, however, indicating that Petitioner has been licensed in Florida as a Registered Pharmacy Technician. Petitioner is currently employed by Randolph Margrave, preparing intravenous medications (IVs) and supplies for administering to patients in their homes. She works in a clean room under a hood in an isolated barrier. She has no contact with the public, and she has no contacts with the patients. Although her position does not require Petitioner to review patient records, she has access to patient records. According to her current employer, Petitioner does an excellent job. Prior to her current position, Petitioner worked in a retail pharmacy from 1981 to 1989. From 1989 to 1999 she worked in the pharmacy department of a hospital. Petitioner’s current employment does not require her to have contact with the public. Petitioner described the circumstances that led to her arrest and subsequent conviction. She testified that she performed oral sex on her daughter’s seventeen-year-old boyfriend. In her testimony, Petitioner stated: My daughter’s boyfriend was very abusive. We got a restraining order against him, and they only granted it for two weeks, temporary. And he threatened me through her. And as it turned out, I made a bad decision. And it was an oral sex one time and . . . [h]e was 17 years old at the time. Petitioner testified that her daughter’s boyfriend was a very mature 17-year-old. Petitioner further testified: And I thought my daughter’s life was being threatened, and it was like making a deal with the devil. And it was a one-time thing and a very bad thing. In a typical retail pharmacy setting, a pharmacy technician is the first point of contact for patients that drop off or pick-up a prescription. A pharmacy technician in a retail setting gathers the patient’s information, enters it into the computer, prepares the label and counts and pours the medication. Pharmacy technicians have access to personal information of the patients that patronize the pharmacy. This information includes but is not limited to the patient’s name, gender, phone number (including cell number), address, allergy information and prescription medication history. Minors may purchase and pick-up medications from a pharmacy. A licensed Registered Pharmacy Technician may practice at any location without restriction.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Pharmacy enter a final order denying Celeste Donald’s application for licensure as a Registered Pharmacy Technician. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
The Issue Whether the Petitioner must reimburse the Respondent for Medicaid overpayments as set out in the Final Agency Audit Report dated January 24, 2008, and pay an administrative fine, and, if so, the amount of the fine and the amount to be repaid.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency charged with responsibility for overseeing the Florida Medicaid system, including the recovery of overpayments to Medicaid providers. § 409.913, Fla. Stat. Grand Pharmacy Discount was first issued a pharmacy license by the Department of Health on June 3, 2004; the license number was PH20078, and the owner of Grand Pharmacy Discount was Ana M. Grajales. On or about May 19, 2005, Mr. Mohebbi purchased Grand Pharmacy Discount from Ms. Grajales. At that time and at all times material to this proceeding, Mr. Mohebbi was a licensed pharmacist, license number PS33552. On July 6, 2005, Mr. Mohebbi applied to the Department of Health, Board of Pharmacy, for a new pharmacy license for Grand Pharmacy Discount, based on a change of ownership. A new pharmacy license, number PH21403, was issued. On July 10, 2005, Grand Pharmacy Discount, through Mr. Mohebbi, submitted a Florida Medicaid Provider Enrollment Application to AHCA, together with a signed Non-Institutional Medicaid Provider Agreement ("Provider Agreement"). The Florida Medicaid Provider Enrollment Application was submitted by Mr. Mohebbi because of a change in ownership, and the Grand Pharmacy Discount pharmacy license referenced in the application was numbered PH21403. Among the provisions of the Provider Agreement were the following: (5) Provider Responsibilities. The Medicaid provider shall Possess at the time of the signing of the provider agreement, and maintain in good standing throughout the period of the agreement's effectiveness, a valid professional, occupational, facility or other license appropriate to the services or goods being provided, as required by law. * * * (8) Ownership. The provider agrees to give AHCA sixty (60) days written notice before making any change in ownership of the entity named in the provider agreement as the provider. Grand Pharmacy Discount was assigned Medicaid provider numbers 0309401-00 and 0309401-01. At the times material to this proceeding, Mr. Mohebbi was the pharmacy manager for Grand Pharmacy Discount and dispensed all medications.2 On March 30, 2007, David Santiago filed papers with the Florida Department of State incorporating Grand Pharmacy Discount as a limited liability company. Mr. Santiago and Mr. Mohebbi entered into negotiations for Mr. Santiago to purchase Grand Pharmacy Discount, and Mr. Santiago and Mr. Mohebbi had a verbal agreement that Mr. Santiago would pay Mr. Mohebbi a deposit on the business, with the balance due at the time of the sale. In furtherance of his intention to purchase Grand Pharmacy Discount, Mr. Santiago, with the assistance of Mr. Mohebbi, prepared and signed an Application for Pharmacy requesting a new pharmacy license for Grand Pharmacy Discount. It was indicated on the Application for Pharmacy that the application was based on a change of ownership from Mr. Mohebbi to Mr. Santiago, and Mr. Santiago filed the application with the Department of Health on April 2, 2007. A new pharmacy license, license number PH22661, was issued to Grand Pharmacy Discount on April 19, 2007. Mr. Santiago did not fulfill his promise to pay Mr. Mohebbi a deposit on the purchase of Grand Pharmacy Discount, and the negotiations for the purchase and sale terminated. Mr. Santiago and Mr. Mohebbi did not enter into a purchase and sale agreement, and Mr. Mohebbi at no time relinquished ownership or control of Grand Pharmacy Discount, its assets or liabilities, to Mr. Santiago. On June 5, 2007, Mr. Mohebbi submitted an Application for Pharmacy to the Department of Health, Board of Pharmacy, requesting that a new permit be issued to Grand Pharmacy Discount based on a change of ownership; Mr. Mohebbi was listed as the owner. On August 2, 2007, Grand Pharmacy Discount was issued a new pharmacy license, number PH22843. In a letter dated June 13, 2007, AHCA notified Grand Pharmacy Discount that its Medicaid provider numbers had been terminated effective April 19, 2007, because it had been notified that Grand Pharmacy Discount's license number PH21403 had been "closed." AHCA conducted a review of the claims for Medicaid reimbursement submitted by Grand Pharmacy Discount from April 19, 2007, through September 30, 2007. In a Preliminary Audit Report dated October 30, 2007, AHCA notified Grand Pharmacy Discount that it found that Grand Pharmacy Discount was overpaid $10,655.44. On January 24, 2008, AHCA issued the FAR, in which it notified Grand Pharmacy Discount that it owed AHCA a total of $11,655.44, which included the previously-identified overpayment of $10,655.44 and a penalty in the amount of $1,000.00. The reasoning for finding an overpayment was stated as follows: The audit period for this review was from April 19, 2007, through June 5, 2007. Grand Pharmacy Discount, Florida Pharmacy license number PH0021403, located at 2140 N.W. 36th Street, Miami, Florida 33142 was issued Medicaid provider number 030940100 effective July 25, 2005. The Department of Health, due to a change of owners, issued Florida Pharmacy license number PH0022661 for Grand Pharmacy Discount at the same address effective April 19, 2007, which closed the previous license number, PH0021403. Medicaid requires an active pharmacy license for your Medicaid provider number to be valid. Additionally, Medicaid requires providers to notify the Agency of any proposed change of ownership 60 days prior to the date on which that ownership change will occur, per Section 409.907(6), F.S. Paid claims to your provider number were found with dates of service after April 19, 2007, when your pharmacy license was closed. The paid claims identified for the period when your provider number was invalid due to the closed pharmacy license number and ownership change resulted in an overpayment of $10,655.44. The termination date of the Audit Period was changed in the FAR from September 30, 2007, to June 5, 2007. The Audit Period was changed to June 5, 2007, because no Medicaid claims were submitted by Grand Pharmacy Discount after that date. According to AHCA's Documentation Worksheet for Imposing Administrative Sanctions, the $1,000.00 sanction was imposed because of Grand Pharmacy Discount's alleged failure "to report CHOW [Change of Ownership] & allowed unauthorized use of provider # to submit Rx claims." Grand Pharmacy Discount has never been disciplined by AHCA, and AHCA has never sought to recoup any Medicaid overpayments from Grand Pharmacy Discount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order withdrawing the Final Audit Report issued January 24, 2008, with respect to both the $10,655.44 overpayment and the $1,000.00 administrative fine. DONE AND ENTERED this 21st day of December, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 21st day of December, 2009.
The Issue The issue is whether the pharmacy permit issued to the Respondent, North Florida Drug Corporation, d/b/a Scottie Discount Drugs, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact North Florida Drug Corporation, d/b/a Scottie Discount Drugs, currently holds permit No. PH 0004096 as a Community Pharmacy. Respondent is located at 1448 Bakers Square, Macclenny, Florida. On December 24, 1987, Gustave Goldstein, who had been the designated prescription department manager for Respondent, resigned as a pharmacist at the Respondent's location. He notified Frankie Rosier, the owner and operator of the Respondent, that he was leaving and he notified the DPR that he would no longer be the designated prescription department manager. Carl Messina is the relief pharmacist for the Respondent. From the time of Goldstein's resignation, Messina has told Ms. Rosier many times that it is illegal to operate without a prescription department manager. DPR inspected the Respondent's pharmacy in December, 1987, and determined that there was no prescription department manager after Goldstein quit. DPR conducted an inspection of the Respondent's premises on February 16, 1988, and discovered that there still was no prescription department manager employed there. Frankie Rosier was made aware of this deficiency. On February 16, 1988, the official records of DPR showed that no new designation of a prescription department manager had been filed by Respondent and Goldstein was still listed as the prescription department manager by Respondent. On May 22, 1988, DPR again inspected the premises and determined that there was still no prescription department manager. It is important that each permittee have a designated prescription department manager to assure that all required records are kept and that the pharmacy complies with all legal requirements. This is especially important regarding control and accountability for controlled substances. Without a prescription department manager, a non-pharmacist owner, like Ms. Rosier, would and does have access to these controlled substances without any accountability. By Final Order entered and filed with the agency clerk on December 17, 1987, this same permittee was fined and placed on probation for operating a community pharmacy with an expired permit and for obtaining a permit by misrepresentation or fraud or through an error of the department or the board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Pharmacy, enter a Final Order finding North Florida Drug Corporation, d/b/a Soottie Discount Drugs, guilty of the violations alleged and revoking the community pharmacy permit No. PH 0004096. DONE and ENTERED this 14th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1988. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 North Florida Drug Corporation Scottie Discount Drugs 1448 Bakers Square Macclenny, Florida 32063 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, USA Rehab and Chiropractic Center, Inc., should have a penalty and fine imposed against its license for alleged statutory and rule violations.
Findings Of Fact On August 23, 2013, Respondent submitted to Petitioner a Health Care Licensing Application (Application) using AHCA Recommended Form 3110-0013, August 2013. The Application was submitted for the purpose of renewing Respondent’s license to operate as a health care clinic. Personnel File and Background Screening Results Section nine of the Application seeks a listing of Respondent’s “licensed health care practitioners and all personnel who provide personal care services to clients or with access to client funds.” Employees that fall within this classification are required to submit to, and successfully pass, a Level 2 background screening. Respondent identified on the Application four individuals that fell within the designated category. Florida Administrative Code Rule 59A-33.012(1) directs that a “survey” will be conducted for “[a]pplications for renewal licenses.” This rule also provides that the survey process “is an onsite inspection and review of the health care clinic facility or administrative office, by authorized Agency employees to determine the health care clinic’s compliance with the minimum standards established by the Act, its statutory references and rules regulating the operation and licensure of health care clinics.” Vanessia Bulger was assigned to conduct the survey related to Respondent’s Application. On November 25, 2013, Ms. Bulger visited Respondent’s facility for the purpose of conducting the required survey. Ms. Bulger met with the owner of the facility, Mr. Lavaud Fevry. While meeting with Ms. Bulger, Mr. Fevry disclosed that after submitting his Application to the Agency, the health care clinic hired two additional employees who provided personal care services to the clinic’s clients. Ms. Bulger wrote the names of the two new employees on her copy of section nine of the Application and further identified these employees with the letters “C” and “D.” Employee “C” is Eugene Grazette and employee “D” is Dexter K. John. For employee “C,” Ms. Bulger wrote “Eugene Grazette – 8- 31-15 – NO BG” and for employee “D” she wrote “Dexter K. John 10- 17-09 BG.” Ms. Bulger testified that “NO BG” stands for “no background screening results.” The Administrative Complaint does not allege that employee “C” had not passed a Level 2 background screening at the time of the survey conducted by Ms. Bulger. Count I of the Administrative Complaint does allege, however, that Respondent failed to maintain a copy of the Level 2 background screening results in the personnel file for employee “C.” It is undisputed that employee “C,” during all times relevant hereto, possessed a valid health provider license that authorized him to deliver personal care services to Respondent’s clients. Additionally, the evidence also establishes that on September 18, 2013, approximately two months before the survey, Respondent, via electronic submission, requested a Level 2 background screening for employee “C.” Ms. Bulger, as part of the survey process, completed a “Heath [sic] Care Clinic Surveyor Worksheet & Facility Questionnaire.” Item nine of the questionnaire asks, “[i]s there a log of all natural persons required to be screened and who have been screened under Level 2 criteria?” In response to this question, Ms. Bulger wrote “NO - New Chiropractor – massage therapist not listed.” The questionnaire does not ask on any of its 10 pages whether a copy of the Level 2 background screening results is maintained in the personnel files of the employees of the clinic. At the time of the survey, employee “C’s” personnel file did not contain a copy of the results from his Level 2 background screening. Attestation Regarding Background Screening Section 10 of the Application is labeled “Affidavit.” Mr. Fevry provided the following attestation in support of the Application: I, Lavaud Fevry, hereby swear or affirm that the statements in this application are true and correct. As administrator or authorized representative of the above named provider/facility, I hereby attest that all employees required by law to undergo Level 2 background screening have met the minimum standards of sections 435.04, and 408.809(5), Florida Statutes (F.S.) or are awaiting screening results. Count I of the Administrative Complaint also alleges that when Mr. Fevry met with Ms. Bulger during the survey he informed her that: he had no affidavit or documentation that the employees, including the Medical Director, had . . . attest[ed] to meeting the requirements for qualifying for employment pursuant to Florida law and agreeing to inform the employer immediately if arrested for any of the disqualifying offenses while employed by the employer per chapter 435, Florida Statutes. The evidence establishes that Respondent’s employees had not completed the required attestations until after the survey. In December 2013 Respondent submitted a plan of correction to address problems related to employee attestations. Exactly 21 months prior to the survey that provides the basis for the instant dispute, Petitioner, on February 23, 2012, conducted a survey of Respondent’s clinic. As a part of this earlier survey, Respondent was also cited for failing to ensure that required staff completed attestations, subject to penalty of perjury, wherein they acknowledged meeting the requirements for employment and agreeing to immediately inform Respondent if arrested for a disqualifying offense. Verifying Florida Licenses Emmanuel Nau, M.D. has served as Respondent’s medical/clinic director since August 2009. Dr. Nau, at all times relevant hereto, held Florida Department of Health medical license number ME48249. Dr. Nau, as medical director for Respondent’s clinic, acknowledges that he has legal responsibility for the clinic as specified in section 400.9935, Florida Statutes. On the day of the license renewal survey, Ms. Bulger inquired of Dr. Nau as to whether, in his capacity as medical director, he was verifying that all practitioners at the clinic who were providing health care services or supplies to clinic patients had active, unencumbered Florida licenses. Dr. Nau, in response to the inquiry, admitted to Ms. Bulger that he had not verified the license status of the clinic’s practitioners. There was, however, no evidence indicating that Respondent’s practitioners did not actually possess active, unencumbered Florida licenses during the period in question. Additionally, no evidence was offered that Respondent had previously been cited for committing violations of this nature. In December 2013 Respondent submitted a plan of correction that was designed to shore up its system of verifying that its employees have active, unencumbered Florida licenses. Failure to Document “When” and “What” Ms. Bulger testified that during the survey, Respondent failed to produce, upon request, confirmation that Dr. Nau documented, for the two years prior to the survey, compliance of when and what action was taken relative to several of the functions, duties and clinic responsibilities enumerated in section 400.9935(1)(a)-(g), Florida Statutes. When Ms. Bulger, on the day of the survey, questioned Dr. Nau about the omissions, he admitted that he failed to document and to maintain for the previous two years, records demonstrating “compliance, when and what action” he took in regards to the performance of his functions, duties, and responsibilities as medical director for the clinic. Dr. Nau also admitted during the final hearing that he had not been listing in his reports all information related to the performance of his duties as medical director of Respondent’s clinic. No evidence was offered that Respondent had previously been cited for committing violations of this nature. In December 2013 Respondent submitted a plan of correction designed to ensure that clinic reports adequately address those matters required by statute and rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order finding that USA Rehab and Chiropractic Center, Inc., violated sections 400.991, 400.9935, 408.809, and 435.05(2), Florida Statutes. It is also recommended that the Agency suspend Respondent’s health care clinic license for 10 business days and impose against Respondent a fine in the amount of $3,500. Finally, it is recommended that Count III of the Administrative Complaint be dismissed. DONE AND ENTERED this 22nd day of April, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2015.
