The Issue May the Department of Children and Family Services properly terminate Respondent as a Medicaid provider pursuant to its letters of March 6, 1996, and the same letter bearing the date, April 12, 1996? If the Department's termination was unlawful, may Respondent be awarded reinstatement and back "wages?" If the Department's termination was unlawful, may Respondent be awarded attorney's fees?
Findings Of Fact The Motion to Dismiss On March 6, 1996, the Agency served a termination letter upon Respondent Charest. Because that letter was not sent certified mail, the same letter was re-dated April 12, 1996, and served by certified mail. Respondent Charest timely requested formal hearing, pursuant to Chapter 120, Florida Statutes, but there was no request that a formal hearing be conducted within 90 days pursuant to Section 409.335, Florida Statutes. The Preliminary Statement, above, sets out the procedural history of this case before the Division of Administrative Hearings and is incorporated here by reference. The 1996 termination letter(s) provided, in pertinent part, as follows: This letter is to notify you of your termination as a Medicaid provider for a term of three (3) years. This termination also applies to your company, Family Choice Support Services. Since you were suspended effective May 1, 1995, the suspension of three years will run from that date, making you eligible to reapply for certification as of May 1, 1998. This termination is pursuant to §409.913(9)(b), Florida Statutes. Termination is authorized by the fact that you have violated the provisions of §409.13(8) by: Failing to provide Medicaid-related records on a timely basis as required under §409.913(8)(g). Failing to abide by the requirements of state law as required by §409.913(8)(h), in that you violated §409.919(2)(e) by offering Jackie Fagan compensation in return for referring clients to you. Also by submitting false or misleading information in connection with your application to qualify as a support coordinator eligible for Medicaid reimbursement in violation of §409.919(2)(g). Submitting applications and requests for reimbursement containing materially false or incorrect information in violation of §409.913(8)(j) and (k). (emphasis supplied) Paragraph 3 of the termination letters, alleging that Respondent had submitted requests for reimbursement containing materially false or incorrect information in violation of Section 409.913(8)(j) and (k), was orally dismissed by the Agency at the commencement of formal hearing. Respondent Charest previously had requested formal hearing in DOAH Case No. 95-3469. Charges in that case arose from April 24, 1995, and May 23, 1995, suspension letters similar to the March 6, 1996, and April 12, 1996, termination letters in the instant case. At the commencement of that formal hearing, Mr. Charest had moved to dismiss DOAH Case No. 95-3469 because the administrative complaint (the 1995 suspension letters) were based on an unadopted Agency rule. The DOAH Hearing Officer entered a December 15, 1995, Recommended Order which recommended that the Agency grant the Motion to Dismiss. The August 7, 1996, Agency Final Order read, in pertinent part, The department's certification termination letter cites only violation of certain unadopted rules. No other authority . . . is provided . . . . I must, therefore, concur . . . that the termination letter is facially deficient. Accordingly, it is ORDERED that the administrative action against petitioner's provider certification is dismissed. (emphasis supplied) At formal hearing in the instant case, Respondent moved to dismiss the 1996 termination letters. In part, he asserted that the formal hearing of June 11, 1997, was not timely, pursuant to Section 409.335, Florida Statutes.4 Respondent further asserted that the 1996 termination letters were vague because, pursuant to Section 409.913(9)(a), a suspension cannot be for more than one year, and the current charging documents were insufficient to advise him if he were subject to suspension or termination.5 The remaining thrust of Respondent's oral Motion to Dismiss was that due process had not been afforded to him because he had been given inadequate notice of the charges in the March 6, 1996, and April 12, 1996, termination letters because Sections 409.13(8), 409.919(2)(e), and 409.919(2)(g) do not exist. The Agency conceded that its citation to Section 409.13(8) in the second sentence of the 1996 termination letters was in error because the correct citation should have been to Section 409.913(8) Florida Statutes. The Agency also conceded that the termination letters' citation to Section 409.919(2)(e) and 409.919(2)(g) also should have been to 409.920(2)(e) and 409.920(2)(g), respectively. The undersigned orally denied Respondent's motion to dismiss and specifically found that there was clear and adequate pleading within the 1996 termination letters at least as to the statutory citations within numbered paragraphs 1 (Section 409.913(8)(g), Florida Statutes) and numbered paragraph 2 (Section 409.913(8)(h), Florida Statutes), and that under the circumstances of this case, the letter as a whole otherwise gave adequate notice of the charges Respondent would be called upon to defend against. However, the parties were also instructed that the issue of the statutory discrepancy in the 1996 termination letters could be re-visited in the parties' post-hearing proposals. The Merits Respondent began working as a Medicaid provider and support coordinator during February 1993. On June 20, 1993, Respondent signed a Florida Medicaid Provider Enrollment Application for certification as a Medicaid provider and was certified. On this application, Respondent answered "yes" to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pretrial intervention program?" Respondent was certified, despite his affirmative answer, which related to a pre-1993 assault charge based on a dispute with a neighbor. No further Agency action ensued. Annual re-applications and re-certifications of provider status were anticipated, but due to creation of the Agency's new Geographic Service District 13, in order to comply with increased screening by the abuse-prevention registry, and because of missing paperwork for 1994, the Agency asked Respondent to apply for re-certification in December 1994. On December 13, 1994, Respondent signed a new Florida Medicaid Provider Enrollment Application for recertification. At that time, he answered "No," to the question, "Have you or any principal owner in your business ever been convicted of a crime, plead nolo contendere to a crime or entered into a pre-trial intervention program?" The Agency did not pursue the discrepancy between Respondent's June 20, 1993, and December 13, 1994, applications. However, a 1995 "screening," pursuant to Chapter 415, Florida Statutes, alerted Agency Medicaid personnel to the problem. When requested, Respondent provided the Agency with a 1993 "Disposition of Charges" on a domestic violence charge against him. That document is not in evidence, but apparently, it did not show that any pre-trial intervention had taken place and suggested that the case was dismissed. The Agency did not pursue the matter. At formal hearing, official recognition was taken of an "Announcement Of No Information" entered December 8, 1993, in State of Florida v. Charest, Marion County Court Case No. 93- 9765MM. Therein, the State Attorney in and for Marion County announced that the case would not be prosecuted on the basis that the defendant, (the Respondent herein) participated in, and successfully completed the Salvation Army Probation Pre-Trial Intervention Deferred Prosecution Domestic Violence Program. Respondent maintained that he had never received a copy of the Announcement of No Information and that no one had adequately informed him that the December 1993 domestic violence charges against him were not simply dismissed. However, he also admitted that he had been required to go to at least one session of counseling as a result of a 1993 domestic violence case and that this had occurred since he had filled out his original June 20, 1993, application. Considering Respondent's testimony concerning his work experience with the Department of Corrections and his 20 years as a mental health counselor, the undersigned does not find credible Respondent's protestations that he did not know that he had been involved in December 1993 in a pre-trial intervention program for domestic violence. Therefore, it is found that Respondent knowingly submitted false or misleading information on an application to the Medicaid Program for the purpose of being accepted as a Medicaid provider. Due to the vulnerability of the mentally challenged clients served by support coordinators, a charge of domestic violence and entry into a pre-trial intervention program are material to Respondent's fitness as a provider of services for the Agency's clients and should have been disclosed. Support plans are necessary to determine what services are appropriately reimbursable by Medicaid. The Agency experienced an ongoing problem in that most of its providers filed their "support plans" late, pursuant to Section 409.313(8)(g), Florida Statutes. Respondent's company submitted untimely reports in a greater degree than any other similar provider. Respondent was only one of two principals in his company. The Agency requested a Corrective Action Plan from Respondent, due April 1, 1994. Respondent's company continued to have chronically late plans after April 1, 1994. Respondent was cautioned on several occasions about the importance of timely submission of support plans, more particularly in a January 31, 1995, letter. Despite Respondent's hiring someone to assist him, five of eight reports attributable to him were still late just prior to his termination. Jackie Fagan is a staff member of the Key Learning Center operated by the Citrus County Association for Retarded Citizens. She was employed in that capacity in 1994 and 1995. Over several months in the latter part of 1994, Respondent negotiated with Ms. Fagan, trying to hire her for his company as a support coordinator. Ultimately, Respondent's increased salary offers did not entice Ms. Fagan to leave her 20- year employment with Key Learning Center. Part of the negotiations seem to have included Respondent's offer of a "bounty" to Ms. Fagan for each client who transferred to Respondent's company, when and if Ms. Fagan changed employments. There is no concensus on whether this would have been ethical. Even after she finally turned down Respondent, Ms. Fagan also understood Respondent to be offering her a bounty for any client she was able to sway to change to his company. Ms. Fagan clearly remembered that Respondent told her he would have to pay her off the premises of Key Training Center for this type of service. Susan Jaynes, who was Ms. Fagan's secretary, overheard Respondent say that if Ms. Fagan recommended clients to him, he "would make it worth her while." Originally, the Agency had required Respondent to bill Medicaid in quarter-hour increments, but at the time of Respondent's "bounty" conversations with Ms. Fagan after she had turned down his offer of employment, Medicaid paid support coordinators $147.00 per month for each client signed up with the support coordinator. Each support coordinator would have 30 to 35 clients at any one time. There was not a complete overlap of services between the type of services provided by Key Learning Center and Family Choice Support Services. However, where there was an overlap, the effect of Ms. Fagan proselytizing for Respondent would have been to persuade vulnerable mentally challenged clients and/or their supportive family members to change support coordinators for purely economic gain to Ms. Fagan and Respondent. It was contrary to Key Learning Center's ethical policy. Ms. Fagan also considered this type of persuasion ethically wrong. She reported it. Respondent established that if Key Learning Center employees simply handed out his advertising flyers, there would be no legal or ethical offense, although it was also shown that it was more common for him to mail his flyers directly to potential clients living in family homes. Respondent testified, without refutation or corroboration, that upon learning of his attempts to hire Ms. Fagan, the director of Key Learning Center had not permitted him to come on its premises to pick up and deliver mutual clients and had threatened Respondent that if he hired Ms. Fagan away, the director would see that Respondent lost all his own clients. Assuming, but not finding, that such a threat was actually made, it was never demonstrated that the director of Key Learning Center could carry out this alleged threat or that he ever approached or influenced the Agency to file charges against Respondent. The Agency suspended Respondent's certification on May 1, 1995, and the prosecution of DOAH Case No. 95-3469 then took the route described above in Finding of Fact 6. The Agency never restored Respondent's certification pending resolution of Respondent's first request for formal hearing in DOAH Case No. 95-3469. Respondent has been effectively decertified since May 1, 1995. He has been unable to draw on Medicaid funds pursuant to his certification since May 1, 1995. The 1996 termination letters in the instant case preceded exhaustion of any one year suspension under the 1995 suspension letters and also preceded the August 7, 1996, Final Order in the prior case. Even if de-certification had been frozen pending Section 120.57(1) proceedings, any certification existing on May 1, 1995, would have expired at the latest one year from its grant, pursuant to Respondent's December 13, 1994 application.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order ratifying its termination of Respondent's certification as a Medicaid individual support coordinator provider, retroactive to May 1, 1995. DONE AND ENTERED this 30th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1997.
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") regarding Certificate of Need ("CON") Application Nos. 10078 and 10079, which concerned the establishment of pediatric cardiac catheterization programs and CON Application Nos. 10080 and 10081, which concerned the establishment of pediatric open heart surgery programs. THE NEMOURS FOUNDATION (hereinafter "Nemours”) filed CON Application Nos. 10078 and 10080, and Adventist Health Systems Sunbelt, Inc. d/b/a Florida Hospital (hereinafter “Florida Hospital”) filed CON Application Nos. 10079 and 10081 in the Second Batching Cycle of 2010. The Agency denied Nemours’ CON applications and preliminarily approved the CON Applications for Florida Hospital. Filed March 1, 2011 9:55 AM Division of Administrative Hearings Thereafter, Nemours timely filed a Petition for Formal Administrative Hearing challenging the Agency’s denial of its CON applications and the Agency’s preliminary approval of Florida Hospital’s CON applications. All four CON cases were consolidated. On December 21, 2010, the parties filed a Joint Motion to Relinquish Jurisdiction. Thereafter, the parties entered into settlement negotiations. Pursuant to settlement agreement the parties agreed: A. That a final order be entered approving Florida Hospital’s CON Applications Nos. 10079 and 10081 with certain conditions as specified within the Settlement Agreement appearing on the face of each Certificate of Need. B. That a final order be entered approving Nemours’ CON Application Nos. 10078 and 10080 with certain conditions as specified within the Settlement Agreement appearing on the face of the Certificate of Need. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. The Settlement Agreement is attached hereto and made a part hereof. The parties are directed to comply with the terms of the Settlement Agreement. 2. The above-styled cases are hereby closed. DONE and ORDERED this =2f day of , 2011, in Tallahassee, Florida. Elizabeth Dudek, Interim Secretary AGENCY FOR HEALTH CARE ADMINISTRATION
The Issue Whether Respondent exercised influence within a physician-patient relationship for purposes of engaging the patient in sexual activities, committed sexual misconduct in the practice of medicine and was found guilty of a crime relating to the practice of medicine.
Findings Of Fact At all times relevant hereto Respondent was licensed as a medical doctor by the Florida Board of Medicine, having been issued license number ME 0006357. He has been so licensed since 1955. On May 24, 1990, Patient #1, a 36 year old retarded female, was brought by her counselor to Respondent's office for a physical examination in connection with qualifying her for a job she was being prepared for by a rehabilitation counselor at J. Clifford McDonald Center at Tampa, Florida. Shortly after their arrival, Respondent told the counselor that he needed to talk to Patient #1 alone and took her into an examining room. No nurse was present at Respondent's office at that time. While in the examining room, Respondent undid Patient #1's bra, fondled and sucked on her breasts and told her not to tell anyone. After leaving Respondent's office, Patient #1 was unusually quiet while enroute back to the rehabilitation center. Later that afternoon, Patient #1 approached her counselor and related what had happened in the examining room at Respondent's office. The Tampa police were notified, and Respondent was subsequently brought to trial in the County Court of Hillsborough County, Florida. By judgment entered 4-19-91, Respondent was found guilty of the offense of battery and was sentenced to 12 months probation, a fine of $750, 150 hours of community service and to pay the costs of his probation supervisor. (Exhibit 3) Respondent is now 68 years old and has been licensed in Florida since 1955. He has no record of prior charges against his medical license. He served as assistant editor of the Journal of the Florida Medical Association from 1978 through 1984, and subsequent thereto he was a Senior Contributing Editor of the Florida Journal. (Exhibit 6) Respondent currently limits his practice to three days per week in his office, and he has not been involved in hospital practice or consultation since 1983.
Recommendation The license of Edward Pedrero, M.D., to practice medicine in Florida should be revoked, but the revocation should be stayed for a period of 5 years probation under such terms and conditions as the Board of Medicine shall deem appropriate; and, at the expiration of the probationary period, unless sooner revoked, the revocation be set aside and Respondent restored to good standing in the medical probation. ENTERED this 6th day of January, 1992, in Tallahassee, Florida. COPIES FURNISHED: Arthur B. Skafidas, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Michael L. Kinney, Esquire Post Office Box 18055 Tampa, FL 33679 Dorothy Faircloth Executive Director Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1992.
The Issue Whether the Education Practices Commission (EPC) should revoke or suspend the Respondent's Florida teaching certificate, or impose any other penalty provided by law, for the violations alleged in the Administrative Complaint dated April 5, 1994.
Findings Of Fact Respondent holds Florida teaching certificate 326738, covering the areas of History, Political Science, and Economics, which was valid through June 30, 1994. Respondent's teaching certificate has not been renewed for failure to complete three additional course credits. On or about November 1989, Respondent was reported to Professional Practices Services (PPS) for failure to maintain honesty. The basis for the report was that on a teacher in-service day, Respondent did not report to work, but had a co-worker sign in for him. As a result of this report, the Pinellas County School District suspended the Respondent for three (3) days without pay. On or about August 21, 1990, Respondent entered into a Deferred Prosecution Agreement with the Department of Education that extended through the end of the 1990-1991 school year. The Deferred Prosecution Agreement included in its terms the requirements that the Respondent: violate no criminal laws and shall fully comply with all district school board regula- tions, school rules and State Board of Education Rule 6B-1.006, F.A.C.; perform assigned duties and responsibilities in a professional manner and which is satisfactory to the county school board and in compliance with the rules of the Florida Department of Education; and satisfactorily complete a workshop/inservice training course or college level course in developing positive relationships with others. On July 24, 1991, then Commissioner of Education, Betty Castor, revoked the Respondent's Deferred Prosecution Agreement with the Department of Education and filed an Administrative Complaint against the Respondent. On June 30, 1992, the Education Practices Commission (EPC) issued a Final Order regarding the July 24, 1991 Administrative Complaint against the Respondent. On or about August 12, 1992, Karen Wilde, Executive Director of the EPC, notified the Respondent of the terms of the Respondent's probation as provided by the June 30, 1992 EPC Final Order. On May 4, 1992, Betty Castor, Commissioner of Education filed a second Administrative Complaint against the Respondent. The second Administrative Complaint referenced the first pending Administrative Complaint entered against the Respondent and further alleged that the Respondent had engaged in inappropriate and unprofessional conduct. The second Administrative Complaint also alleged that on or about October 25, 1991, the Pinellas County School Board suspended the Respondent with pay and recommended that the Respondent be terminated. On August 18, 1992, the Respondent entered into a Settlement Agreement with the EPC whereby the Respondent elected not to contest the allegations set forth in the May 4, 1992 Administrative Complaint. This agreement required the Respondent among other things to: submit to an evaluation by licensed psychiatrist mutually acceptable to the EPC and the Respondent within sixty (60) days of the date of this agreement. submit to an evaluation by a licensed physician other than [Respondent's] regular physician. This exam must include a medical review to determine the cumulative effects of medication which has been prescribed to [the Respondent], and to determine whether any medications or combinations thereof with each other or with alcohol may contribute to the behaviors which are the basis of the Adminis- trative Complaint. On November 6, 1992, the Education Practices Commission issued a Final Order with regard to the Second Administrative Complaint. The November 6, 1992 Final Order incorporated the terms of the August 18, 1992 Settlement Agreement. On or about December 11, 1992, Karen Wilde, Executive Director of the EPC, notified the Respondent of the terms that the Respondent agreed to in his Settlement Agreement. On or about March 10, 1993, Karen Wilde again notified the Respondent of the requirements of the Respondent's Settlement Agreement and the Respondent's non-compliance with terms of that latest settlement agreement. The Respondent has not complied with the terms of the Final Order of November 6, 1992 which incorporated the Settlement Agreement insofar as the evaluations from a physician and from a psychiatrist have not been submitted. On or about April 1, 1993 Karen Wilde notified the Respondent that the Respondent was being reported to the PPS for non-compliance with the terms of the Final Order of November 6, 1992. On June 30, 1993, the PPS initiated an action against the Respondent for violation of the Respondent's EPC probation. Respondent has taught school for over twenty years. On September 7, 1992, Respondent seriously injured his back in the course of his employment as a result of intervening to prevent a fight between two students. Respondent's injury required him to undergo surgery to repair a herniated disc, and resulted in a 9 percent permanent partial impairment rating to the body as a whole. During this time Respondent was on prescribed pain medication. Respondent filed a worker's compensation claim which was settled by the Pinellas County School Board. The settlement stipulated that Respondent would resign his employment with the Pinellas County School Board, and further provided that the School Board has no objection to deletion of paragraph 8(f) and 8(g) of the settlement agreement. On August 18, 1993, the Respondent resigned his teaching position with the Pinellas County School Board.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Respondent be barred from reapplying for a teaching certificate for a period of one (1) year from the final disposition by the Education Practices Commission; That prior to reapplication the Respondent be required to provide the certificates that were required by Paragraph 5 and 6, and shall comply with Paragraphs 8(f) and 8(g), all of the Final Order entered by the Education Practices Commission on November 6, 1992; That upon reemployment in the teaching profession that he be placed on a term of probation of three years on the terms outlined in Paragraphs 7, 8(a), 8(b), 8(c), 8(d), 8(e), and 9, all of the Final Order entered by the Education Practices Commission on November 6, 1992; and That an administrative fine of $500.00 be paid by the Respondent to the Petitioner within the first twelve months of the probationary period. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of March, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1995. APPENDIX The following constitute rulings on the Findings of Fact proposed by the parties. Petitioner's Proposed Findings 1.-10. Adopted. 11. Adopted in part. 12.-18. Adopted. Incorporated in paragraph 18. 20.-22. Adopted. Respondent's Proposed Order Adopted in part. Reject as not supported by the evidence. Rejected as irrelevant. Adopted. COPIES FURNISHED: Nathan L. Bond, Esquire 2121 Killarney Way Suite G Tallahassee, Florida 32308 David L. Smith 2521 Oak Leaf Lane Condo D Clearwater, Florida 34623 Karen Barr Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Sandra Ann Lindstrom (“Ms. Lindstrom” or “Respondent”), a licensed physician assistant, prescribed Lorcet, a medication containing a controlled substance (hydrocodone), in violation of the Florida Statutes and the Florida Administrative Code as charged in the Amended Administrative Complaint filed at the Department of Health in DOH Case No. 2006-36542 on October 27, 2014. If so, what is the appropriate discipline?
Findings Of Fact The Parties The Department of Health is the state agency responsible for regulating the practice of physician assistants in the State of Florida. The regulation is pursuant to both chapter 456 (“Health Professions and Occupations, General Provisions”) and chapter 458 (“Medical Practice”), Florida Statutes. Respondent is licensed as a physician assistant by the Board of Medicine. Her license number is PA 9103823. The license was effective on August 3, 2006, with an expiration date of March 31, 2008. Her license has been continuously renewed since its effective date. See Pet’r’s Ex. A. Ms. Lindstrom is not licensed to practice medicine as a physician. Id. Physician Assistants Physician assistants are governed by section 458.347, a section within the chapter of the Florida Statutes that governs Medical Practice. Physician assistant licensure is provided for in section 458.347(7), and the Board of Medicine is authorized to “impose any of the penalties authorized under ss. 456.072 and 458.331(2) upon a physician assistant if the physician assistant or the supervising physician has been found guilty of or is being investigated for any act that constitutes a violation of this chapter [Ch. 458] or chapter 456.” § 456.347(7)(g), Fla. Stat. A physician assistant’s supervisory physician may delegate authority to conduct aspects of medical practice to a physician assistant under circumstances expressed in the statutes. The limited medical practice that may be delegated to a physician assistant includes certain practices at county health departments. Whether conducting the delegated practice of medicine at a county health department, or not, physician assistants may be delegated authority to prescribe medications provided they are not listed on a formulary created pursuant to section 458.347(7)(f). See § 458.347(7)(d) and (e), Fla. Stat. The formulary must include “controlled substances as defined in chapter 893.” § 458.347(7)(f)1., Fla. Stat. In sum, physicians may not delegate to physician assistants the prescription of medications which are controlled substances as defined in chapter 893, Florida Statutes. The Department’s Investigative Office The Department has an investigative office charged with looking into regulatory complaints. In a typical regulatory investigation, the investigator discloses his identity to any party interviewed, whether the party is the source of the complaint, a witness, or, if amenable to an interview, the licensee who is the subject of the complaint. Aside from interviews, the investigations include record reviews, the obtaining of evidence, and the preparation of an investigative report. In addition to investigating complaints of regulatory violations by licensed health care practitioners, the investigative office looks into cases of unauthorized practice by unlicensed individuals. Investigations of unlicensed activity are conducted by what is known as the “ULA” section of the office. Commonly, ULA investigations are done by investigators who are “undercover,” that is, the investigators hide their identity as investigators and use pseudonyms rather than their actual names. Typically, undercover ULA investigators present at the offices of the subjects of investigation. If the unlicensed subject of the investigation offers to perform services that require a license or engages in practice that requires a license, the Department pursues remedies, including an order that the subject cease and desist from the unlawful, unlicensed activity. Investigations of a licensee for practicing outside the scope of the licensed activity may be viewed as something of a hybrid of a typical regulatory investigation and a ULA investigation. It is regulatory since the subject is a licensee, but it is usually done undercover in the same manner in which a ULA investigation is conducted. One such investigation was conducted by Ryan Heal, an employee of the Department between August and December of 2006. Mr. Heal conducted the investigation undercover using a pseudonym referred to in Department documents as “RJ.” RJ and the 2006 Investigation of JHS Mr. Heal has been a medical malpractice investigator for the Department since November 2000. During the course of his more than 15 years as a Department investigator, Mr. Heal has investigated both regulatory violations and unauthorized practice violations. In 2006, allegations reached the Department that prescriptions were being written at Jacksonville Health Systems (“JHS”), a clinic located on Baymeadows Road in Jacksonville, Florida, by a physician assistant without the supervision of a physician. In response, the Department launched an investigation. The investigation was conducted undercover by Mr. Heal using his pseudonym RJ. Commenced in August of 2006, the investigation lasted until the following December. August 10, 2006 On August 10, 2006, Mr. Heal, using his fictitious name, presented at JHS. A woman behind the counter in the reception area accepted a cash payment for the visit. She took RJ’s blood pressure and requested the name of the pharmacy for any medicine prescribed. To the best of Mr. Heal’s recollection, the receptionist recorded some of the information. After the interaction with staff in the reception room, Mr. Heal took a seat and waited to be called back to the examination room. Shortly thereafter, Ms. Lindstrom emerged and asked for RJ. Mr. Heal “stood up and went over to her.” Hr’g Tr. 19. Ms. Lindstrom identified herself by her first name and said, “I’m the provider here.” Id. Ms. Lindstrom accompanied Mr. Heal to the examination room where only she and Mr. Heal were present. After Mr. Heal complained of back pain, Ms. Lindstrom asked where in his back the pain was located and what caused it, but she did not conduct a physical examination. As Mr. Heal testified at hearing, “[t]here was no examination. She never touched my back. Never took vitals or anything.” Hr’g Tr. 20. Ms. Lindstrom suggested that Mr. Heal use a chair with lumbar support, try stretching, lose weight, and have an MRI. Ms. Lindstrom then stated that she would prescribe medication to treat the pain: Lorcet, Flexeril, and Motrin. With the visit in the examination room concluded, Ms. Lindstrom took Mr. Heal back to the receptionist. The meeting in the examination room and his first visit to the JHS offices being over, Mr. Heal departed the JHS facility. He did not return until the following October. October 31, 2006 Mr. Heal returned to the JHS facility on October 31, 2006. The process during the second visit was similar to the one followed during the visit the previous August. He presented as “RJ.” A staff member took his blood pressure in the reception area and he paid her $90 in cash. Mr. Heal sat down and waited to be called. Again, Ms. Lindstrom appeared in the reception area and took him to the examination room in the back. The visit was shorter than it had been in August. Ms. Lindstrom asked if his pain had improved and if an MRI had been done. With the intention of calling in his prescriptions, Ms. Lindstrom showed Mr. Heal a list of five pharmacies from which to choose. Mr. Heal, however, took a tack that was different from Ms. Lindstrom’s intention and from his first visit: I explained to her that I did not have reliable transportation and asked [for] . . . handwritten prescriptions . . . so that I could take them to whatever pharmacy was convenient . . . . She agreed that she could write them that time, but that on the next visit, I would have to arrange for proper transportation to get to the pharmacy or wherever they needed to be called into. Hr’g Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two of them were for “Flexeril 10mg (ten) #30 (thirty)” and “Ibprofen (sic) [Ibuprofen] 800mg #120 (one twenty).” Pet’r’s Ex. B. The third prescription was for “Lorcet 10/650 #90 (Ninety).” Id. Ms. Lindstrom explained to Mr. Heal that he should use one of the five pharmacies on her list because “several [of the Clinic’s patients] had been kicked out of pharmacies . . . [that] were refusing to fill the prescriptions.” Hr’g Tr. 25. Ms. Lindstrom also “mentioned that a couple of her patients had been arrested for forging prescriptions.” Hr’g Tr. 25-6. At no time during his visit to JHS on October 31, 2006, did Mr. Heal see a physician. No one entered the examination room where Ms. Lindstrom met with Mr. Heal that day. Nor did Ms. Lindstrom leave the examination room while Mr. Heal was present in the room. Like the first visit the previous August, Ms. Lindstrom recommended that Mr. Heal have an MRI. She explained that results from an MRI were needed “in case the DEA wanted to look at the file, to show that [she and JHS] were actually treating [Mr. Heal] for something.” Hr’g Tr. 28. December 1, 2006 Little more than a month later on December 1, Mr. Heal made a third visit to JHS. The reception process was the same. The receptionist took his blood pressure, he paid $90 in cash, and waited in the reception area for Ms. Lindstrom to call him back. While waiting, he was informed that the number of pharmacies that would accept JHS prescriptions had been drastically reduced. Only one pharmacy would now accept JHS prescriptions: a pharmacy called New Horizon. Subsequent to the third visit, Mr. Heal presented to the pharmacy identified as New Horizon. In the company of law enforcement and with its supervision, Mr. Heal had the prescriptions filled for three medications: Flexeril, Ibuprofen at a prescription-strength dosage, and Lorcet. Supervising Physician and Other Claims At hearing under oath, Ms. Lindstrom admitted that she treated Mr. Heal once at the JHS facility and admitted that she prescribed Flexeril and Ibuprofen for him. She claimed under oath that the supervising physician for the 2006 visit in which she prescribed the two medications was James Hendrick, M.D. The Department produced documentation in the Department’s official business records that shows that Dr. Hendrick cancelled his Professional Liability Insurance Policy effective October 1, 2005, the year before Ms. Lindstrom claims to have seen Mr. Heal at the JHS facility under Dr. Hendrick’s supervision. The reason for the cancellation of the policy is listed on the letter from the insurer to the Department as “Retired.” Pet’r’s Ex. F, letter dated October 17, 2005, from FPIC, First Professionals Insurance Company. Department records also include an “Address Change” form that contains a section entitled “Financial Responsibility” dated November 21, 2005, the year before the incidents in this case. No boxes are checked in the section that shows “Financial Responsibility Coverage.” Under a section on the form entitled, “Category II: Financial Responsibility Exemptions,” Dr. Hendrick checked a box that indicated he was “retired or maintain[ed] part-time practice,” id., at least as of late November 2005, 11 months or more before the October 31, 2006, visit by Mr. Heal. Ms. Lindstrom made other claims with regard to RJ’s visit that she asserted occurred on October 3, 2006, rather than October 31, 2006, as charged. Among them was that she left the examination room after completing the prescriptions for Flexeril and Ibuprofen and partially completing a third prescription by inserting all the information, including her signature, except for the medicine to be prescribed and how often it should be taken. Ms. Lindstrom claimed that she intended to write a prescription for Lodine, but failed to write down “Lodine” on the third prescription form because she was distracted by a discussion with Mr. Heal about the need for RJ to have an MRI. She says she left the room to make arrangements for an MRI and when she returned, RJ was gone, together with the two filled out prescriptions, the third incomplete prescription, and her prescription pad. Ms. Lindstrom’s testimony about the theft of the pad and other details about the event, including when it occurred, is not credible. In contrast, Mr. Heal’s testimony about the visits he made to the JHS facility, seeing Ms. Lindstrom, and her prescription of Lorcet, is credited as truthful. Lorcet Lorcet contains hydrocodone, which is a controlled substance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent Sandra A. Lindstrom, P.A., violated section 458.331(1)(nn), Florida Statutes (2006), by violating Florida Administrative Code Rule 64B8-30.008 (2006), as charged in the Amended Administrative Complaint; Imposing a $2,500 fine; and Revoking Respondent’s license as a physician assistant. DONE AND ENTERED this 30th day of March, 2016, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 March, 2016. COPIES FURNISHED: Sandra Ann Lindstrom 6726 Pomeroy Circle Orlando, Florida 32810 Yolonda Y. Green, Esquire Maciej Lewandowski, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 (eServed) Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
The Issue The issue presented in this case is whether the Respondents', Otmara Pina and Ali's Pharmacy, licenses should be revoked, suspended or otherwise disciplined for allegedly violating the Florida Pharmacy Act, Chapter 465, Florida Statutes, when filling a series of unauthorized prescriptions for a controlled drug.
Findings Of Fact Respondent, Otmara Pina, is a pharmacist licensed by the State of Florida and holds license number 14075. Respondent, Ali's Pharmacy, is owned by Cerardo Vigoa and Pedro Diaz, and is registered as a pharmacy by the State of Florida under permit number 750. Ali's Pharmacy is located at 3825 West Flagler Street, Miami, Florida where Otmara Pina is and has been during all pertinent times the managing pharmacist for Ali's. Between March 1, 1978 and January 4, 1980, Otmara Pina, while engaged in her employment as managing pharmacist at Ali's, filled and dispensed fifteen (15) prescriptions for 10 mg. Valium tablets, with varying refills thereof, to Mrs. Lila Tomlinson. The fifteen (15) prescriptions filled by Otmara Pina for Mrs. Tomlinson bore the name of Dr. Claudio R. Villoch as prescribing physician. None of the fifteen (15) prescriptions were authorized or signed by Dr. Villoch. Pursuant to Section 893.03(4)(h), Florida Statutes, Valium or Diazepam is a Schedule IV Controlled Substance. At the hearing, the Department voluntarily dismissed that portion of the Amended Administrative Complaint involving the dispensing of 426 Lomotil tablets. The Respondents did not dispute the factual allegations of the Amended Administrative Complaint but did present testimony in mitigation of their position. The individual to whom the drug was dispensed by Respondent Pina was an elderly widow with extremely limited resources who suffered from terminal cancer. The drug was dispensed by Respondent Pina in order to alleviate Mrs. Tomlinson's terminal condition rather than for monetary gain. Respondent Pina attempted to contact Dr. Villoch's office and spoke to an unidentified person in the office who verbally authorized a prescription. The Respondents enjoy an excellent reputation in the community and provide a valuable service for the largely Hispanic neighborhood in which they are located.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent Otmara Pina be found to have violated Sections 465.015(2)(c), 465.016(1)(e), and 893.13(2)(a)(1), Florida Statutes, and that pursuant to Section 465.016(2), Florida Statutes, she be placed on probation for one year, be issued a letter of reprimand and be required to take an appropriate continuing education course dealing with procedures to be followed in dispensing controlled drugs. Since no evidence was presented concerning Respondents Vigoa and Diaz, the Amended Administrative Complaint filed against them should be dismissed. DONE and ORDERED this 10th day of July, 1981 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1981. COPIES FURNISHED: William M. Furlow, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Otmara Pina c/o Ali's Pharmacy 3825 West Flagler Street Miami, Florida 33134 Gerardo Vigoa and Pedro Diaz Ali's Pharmacy 3825 West Flagler Street Miami, Florida 33134
Conclusions Having reviewed the Notice of Intent to Deny, the Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the provider (hereinafter “the Respondent”) pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and Election of Rights from on the Respondent. (Ex. 1) The Agency later issued the attached Notice of Intent to Deny and Election of Rights form on the Respondent. (Ex. 2) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Filed November 21, 2011 9:10 AM Division of Administrative Hearings Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Notice of Intent to Deny is WITHDRAWN. 3. The Respondent shall pay the Agency a total of Fifty-Six Thousand and No/100 ($56,000.00) Dollars in administrative fines and assessments, Twenty-Six Thousand and No/100 ($26,000.00) Dollars of which shall be in full and final satisfaction of any and all reimbursements owed for any potential or alleged Medicaid overpayments (and shall be associated with CI No. 12-0957-000 for purposes of internal Agency allocation) during the Respondent’s period of non-compliance. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this IS day of No YewSer— , 2011. Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct cgpy of this Final Order was served on the below-named “Se day of Nbitw br , 2011. persons by the method designated on this Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas F. Asbury, Esq. Brian J. Lynch, Administrator Office of the General Counsel The Brookshire Agency for Health Care Administration 85 Bulldog Blvd. (Electronic Mail) Melbourne, Florida 32901 (U.S. Mail) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Shaddrick Haston, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Anna G. Small, Counsel for Respondent LaVie Care Centers 10210 Highland Manor Dr., Suite 250 Tampa, FL 33610 (U.S. Mail) Horace Dozier, Field Office Manager Medicaid Program Integrity Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Page 3 of 3
