The Issue Is Petitioner entitled to be licensed as a nutrition counselor consistent with Section 468.51(3), Florida Statutes (1995)?
Findings Of Fact On June 6, 1995, Petitioner made application with the Dietetics and Nutrition Practice Council to be certified as qualified to act as a nutrition counselor in Florida pursuant to Section 468.51(3), Florida Statutes (1995). On November 14, 1995, Petitioner appeared before the Dietetics and Nutrition Council to support his application. He was questioned by members of the council and requested to provide additional information to support the application. An order was entered on December 18, 1995 by Catherine Christie, Ph.D., R.D., council chair, continuing consideration of Petitioner's application to become a licensed nutrition counselor to allow Petitioner to supplement the application. The order described the council's expectations concerning the nature of the supplementary information. Supplemental information was provided by Petitioner to assist the council in its application review. The supplemental information was considered on February 26, 1996, when the council met. Council members voted to deny the application. On March 18, 1996, a proposed order was entered by the then vice-chair for the council, Clara Lawhead, M.S., R.D., denying the applications and stating the reasons for the denial. The proposed order created the opportunity for the Petitioner to contest the preliminary decision to deny his application for a license to practice as a nutrition counselor. Petitioner took advantage of the opportunity to contest the preliminary decision by filing a petition for formal hearing on April 15, 1996. The hearing ensued. At present Petitioner manages SIDDAH International Import and Export which deals in fragrance products imported for different industries, health food stores, book stores and gift stores. Petitioner has been involved with that business for twenty years. The business is a corporation. Petitioner is the sole shareholder in the corporation. At one time the corporation owned a store in Gainesville, Florida, the Crystal Forrest, which was sold in 1992. While the corporation owned the Crystal Forrest, the corporation marketed the store as a natural gift store. The store sold natural fiber clothing, rocks and crystals, herbs and vitamins, and jewelry. During the period when the store was owned by the corporation, Petitioner was employed in the store. Petitioner holds a massage therapy license issued by the State of Florida, but he does not currently practice massage therapy. Petitioner graduated from Coral Gables High School in Coral Gables, Florida, in 1966. He graduated from New College in Sarasota, Florida, in 1973 with a degree in psychology. While in college Petitioner took a course in human nutrition from a Dr. John Culbertson, who specialized in nutrition and physiology. Petitioner received a masters degree in somatic psychology and the relationship between mind and body from Goddard College in Plainfield, Vermont, in 1976. Petitioner is not presently licensed to practice psychology and has not practiced psychology in the past. Petitioner prepared papers in his undergraduate study related to the relationship of nutrition, psychology and psychiatry. While undergoing his undergraduate training and working with Dr. Culbertson Petitioner assisted Dr. Culbertson in teaching a course called "The Integrated Body". In that course Dr. Culbertson taught nutrition and physiology. Petitioner taught body-mind related subjects. They used Robert Simeon's book on psychosomatic illness in teaching this course. Dr. Culbertson's wife taught anatomy and physiology in the course. Petitioner's graduate degree was obtained through an external degree program accredited by the Northeastern Association of Colleges. While completing his graduate studies Petitioner worked under the supervision of Dr. Dale Townsend from New College involving persons being assisted through the counseling program at New College. Other unnamed professors were responsible for Petitioner's work in art therapy and counseling while obtaining his graduate degree. Petitioner was involved with studies in orthomolecular nutrition when he was a graduate student. The orthomolecular nutrition studies which Petitioner pursued in his graduate work focused on how normal human physiology can affect the mind and, once affected, how supplementing the physiology with nutrients can help to heal the mind. Before obtaining his graduate degree Petitioner had worked as a drug abuse counselor while working to obtain the graduate degree. Petitioner worked in that capacity from 1973 until 1976. In 1976 Petitioner began work with Dr. Bruce Pacetti, a dentist then practicing in Sarasota, Florida. Dr. Pacetti was emphasizing nutrition in treating his patients. Together Petitioner and Dr. Pacetti conducted seminars through Associates for Growth, Inc. The topics for the seminars related to nutritional awareness for optimum health and cooking natural food to improve health. Petitioner explains that the purpose of the nutrition seminars was to educate the public about the values of good nutrition and vitamin supplementation and to dispel myths about nutrition. Petitioner organized the seminars and was one of the speakers. Dr. Pacetti spoke at the seminars, as did also a Ph.D. psychologist. The Ph.D. Psychologist spoke to help motivate people to change their diet habits. Petitioner obtained some referrals from the seminars which led to private nutritional counseling being performed by Petitioner. The details concerning those nutritional counseling sessions were not explained in the hearing. As described in a memorandum directed to the council, Dr. Pacetti recalls that Petitioner worked with Dr. Pacetti running the seminars in 1976 and served as a nutritional assistant in relation to Dr. Pacetti's post as clinician at the Melvin Page, D.D.S. Clinic, St. Petersburg, Florida, in the period 1976-1977. At the clinic, Dr. Pacetti relates that he directly supervised Petitioner, and that Petitioner gathered diet histories from patients, did morphological measurements, charted blood work and advised patients as to diet and use of supplements. Dr. Pacetti writes that Petitioner, as a staff nutritional assistant, received a salary for full time employment. Dr. Pacetti indicates in the correspondence that the Melvin Page Clinic received fees to include Dr. Pacetti's fees and those related to Petitioner's services. Dr. Pacetti in his correspondence indicates that Petitioner was included under his and the clinic's malpractice insurance. Finally, Dr. Pacetti writes to recommend Petitioner as a person careful in his research and dedicated to improving the diets of American citizens, expressing the belief that Petitioner should be licensed as a nutritionist in Florida. The details concerning the nature of the diet histories from patients, the meaning of morphological measurements, explanations about charting of blood work and advice to patients as to diet and supplements were not contained in the Pacetti memorandum. The work which Petitioner did while associated with Dr. Pacetti in the St. Petersburg dental office involved meeting people and going over their diets and supplements and making recommendations. In his role with the Page Dental Clinic Petitioner used blood work that had been done on the patients at the clinic for purposes of charting the calcium level of the patients. This information was correlated to improve the patient's dental health. Petitioner was involved with the measurement of the patient's arms and legs. Petitioner would meet with the patient and go over a specific diet that had been recommended by Dr. Page. The diet recommended the elimination of a lot of refined sugar and sweets from the patient's eating habits. In connection with the elimination of refined sugar, an explanation was made to the patient about how the patient would undertake the tasks of eliminating those items from the diet and how the patient could be motivated to adhere to the Page diet. Petitioner would go over the supplements that the patient was expected to take in this program. Usually there was a specific regime of supplements that each person was given. Often, Petitioner would develop supplementation recommendations for the patient and review those with Dr. Pacetti before advising the patient to take the supplements. When working for Dr. Pacetti, Petitioner might hand reports of blood work to Dr. Pacetti and Dr. Pacetti might tell Petitioner to write up what Petitioner thought the person should have by way of supplementation. Petitioner would write up the suggested supplementation to be given back to Dr. Pacetti for approval. If the supplement was approved Petitioner might meet with the patient and go over the Page Clinic diet which was low in refined carbohydrates, as a means to avoid tooth decay. Petitioner recalls that while working with Dr. Pacetti at the Page Clinic he was paid a salary of $150.00 a week. In 1977, Petitioner moved to Gainesville, Florida, and was attending school and working for Bruce Rappaport, D.C., in the Bruce Rappaport Chiropractic Clinic. Petitioner's position with the clinic was as a clinic nutritionist. In that capacity, Dr. Rappaport would refer patients to Petitioner. Petitioner would evaluate the patient's diet histories and work out specific diet recommendations. Petitioner would go over supplements with the patients and recommend that the patients take the supplements. Dr. Rappaport had supplements available for sale in the chiropractic office or the patients could buy those supplements from a health food store. Petitioner worked for Dr. Rappaport for approximately two years, ending in 1979. As described in a deposition given on December 24, 1996, and through correspondence dated September 18, 1995 and January 17, 1996, Dr. Rappaport outlines Petitioner's employment in Dr. Rappaport's chiropractic office. Dr. Rappaport recalls that Petitioner evaluated the diet histories of patients and helped the patients keep a diet log. Dr. Rappaport recalls that Petitioner recommended that patients change their diet. Dr. Rappaport recalls that Petitioner recommended that patients take nutritional supplements. He recalls that Petitioner helped Dr. Rappaport's office keep track of the supplements that had been supplied through the chiropractic office. Dr. Rappaport recalls that Petitioner made referrals to the doctor for further musculoskeletal problems that had been reported to Petitioner by the patients. As Dr. Rappaport establishes it, Petitioner was in Dr. Rappaport's office several times weekly performing his tasks. As Dr. Rappaport recalls, Petitioner would consult with him concerning recommendations that patients change their diets. Dr. Rappaport recalls that Petitioner was paid directly for evaluating the patients. In the instance where a patient would be seen by Dr. Rappaport, the diet history that was taken would be associated with having the patient keep track, for Petitioner's benefit, of those things that were eaten over a period of three to seven days. Petitioner would look at what the patient's diet consisted of and would ask the patient to list all supplements being taken by the patient, and if caffeine and drugs were being used. Follow-up questions were directed to the patient. For example, did the patient feel more tired in the morning, after breakfast or do you feel more tired in the evening? No equipment would be involved in this consultation in Dr. Rappaport's office that was conducted by Petitioner. The Petitioner did not take the height and weight of the patient, but might ask the patient to give his or her height and weight. Petitioner kept a patient file in a manila folder with the diet history and notes of what had been discussed in the interview. The patient would be asked about the specific complaint that he or she had and what medicines were being taken by the patient. The patient would be asked why he or she was there to see Dr. Rappaport. The patient would be asked what was going on in the patient's life in terms of stress. The counseling session would take 30 to 60 minutes and, on occasion, longer. Petitioner would conduct 5 to 8 sessions a day when at Dr. Rappaport's office. Each individual patient would be seen three to four times over a six week period. In 1979, Petitioner returned to Sarasota, Florida, where he remained for about four years. During that period Petitioner conducted a full time massage practice and, depending on the patient, would let the patient know that Petitioner was available to do nutritional consultation. Approximately one out of five persons who received massage therapy would opt for nutritional counseling sessions for which Petitioner received a separate fee. In 1983 Petitioner returned to Gainesville, Florida, and began devoting considerable time to the management of the SIDDAH Corporation. Commencing in 1983 while working in the Crystal Forrest store Petitioner was responsible for the supervision of telemarketing products sold by the store and a warehouse associated with the business. The store had a manager and one or two employees. The warehouse had a manager in charge of stocking products. Petitioner decided upon the mix of products sold in the store, the presentation of those products and the advertising associated with the products. Petitioner would consult with store clientele concerning nutritional products sold. The consultation was on the basis of referrals from store employees. There was a loft above that store where Petitioner spoke with store customers concerning the nutritional products sold for the most part. Petitioner charged a fee for these consultations which was placed in the cash register for the store under the category "miscellaneous". Petitioner received an overall salary for his work with the corporation, to include all duties for the corporation. While employed by the corporation from 1983 through approximately April 1, 1988, Petitioner devoted 5 to 10 percent of his time to the process of consulting with customers concerning the nutritional products. Petitioner spent from 2 to 4 hours a week dealing with that issue. This entailed a discussion of what Petitioner refers to as a "state of wellness". The customers were interested in specific herbs or vitamins and having assistance in "fine tuning" their diets and accomplishing specific goals. Petitioner would refer customers to professionals in the instance where the customers were "doing not so well". Petitioner gave advice on how to use a nutritional supplements being purchased. For example, he would consult with a person who was a runner about the runner's desire to increase strength or to receive help in maintaining endurance. No records were maintained concerning these consultations. This work was different from the responsibilities which Petitioner had when working for Dr. Rappaport. The difference was that Dr. Rappaport's clinic dealt with people with problems that were sometimes serious. In that setting, Petitioner was working with Dr. Rappaport. Petitioner described the persons he saw in the store as not in ill health, but not in great health either, who were interested in improving their health by using the supplements sold by the store. Therefore, the consultation was with a different kind of client through a different form of consultation. In the store Petitioner worked alone, not in conjunction with a health care professional. When seeing customers at the Crystal Forrest Petitioner would ask the customer about the customer's interest in a particular supplement being sold or what the customer's specific goals were, "health wise." The Petitioner and the customer would discuss the customer's concept of what the customer and what Petitioner thought was available for them in the store and what Petitioner thought was available for them in their diets that might be changed; or in some instances, Petitioner might recommend certain kinds of exercise. Petitioner would try to match the appropriate supplements to meet the life style of the customer. When consulting persons at the Crystal Forrest Petitioner might suggest changes to supplements that were being used by the customer. With the advent of Part X, Dietetics and Nutrition Practice, Chapter 468, Florida Statutes, enacted in 1988, Petitioner did not feel that he was doing enough work in the nutrition field to get involved with that field. Therefore, after April 1, 1988, Petitioner did not see people individually for consultation concerning client nutrition practices. After that time Petitioner would refer persons who needed assistance concerning nutrition to the Chance Chiropractic Clinic. One person whom Petitioner had seen and consulted with concerning nutrition was Brooke Domke. He had seen Ms. Domke in Dr. Rappaport's office when Ms. Domke was a minor. Ms. Domke continued to check with Petitioner throughout her young adulthood. Ms. Domke had been brought to Dr. Rappaport's office because of problems with asthma. On that occasion Petitioner recommended vitamin C, vitamin A and that Ms. Domke be taken off milk products. Beyond this circumstance Petitioner kept in touch with Ms. Domke through April, 1, 1988. As Ms. Domke describes, Petitioner asked her to keep a record of her diet and to use less refined sweets as well as using vitamins C and A and reducing dairy products. In correspondence, Ms. Domke states that she consulted with Petitioner until April 1, 1988, at the Crystal Forrest store where Petitioner sold gifts, body care items and supplements. Over time Petitioner would recommend different forms of vitamin C as they became available, as example, calcium ascorbate. The charge for consultation, as Ms. Domke recalls, was $25.00 or less. Another person whom Petitioner saw and consulted with concerning nutrition was Judy Taylor. She consulted with Petitioner concerning her general health in March 1988. In this consultation, as described in correspondence by Ms. Taylor, Petitioner inquired about her diet and health history and suggested a preventative health care program of high protein and low refined carbohydrates. Further, Petitioner suggested a multiple vitamin/mineral supplement, calcium ascorbate and extra calcium supplementation in view of the existence of osteoporosis in her family. According to the correspondence from Ms. Taylor, Petitioner charged $25.00 or less for his consultations. Other correspondence concerning consultation with Petitioner on nutrition subjects is from Elsie Clay, whom Petitioner saw starting in 1980 in Sarasota, Florida. As Ms. Clay explains, because her doctors had been concerned about osteoporosis, Petitioner recommended calcium supplementation and vitamin C and asked her to keep a record of her diet and recommended more dairy products and less refined sweets. Ms. Clay continued to consult with Petitioner until 1988 at the Crystal Forrest. In her correspondence Ms. Clay indicates that Petitioner recommended different forms of calcium as they became available, such as chelated calcium, and non-acidic forms of vitamin C, such as calcium ascorbate. As Petitioner explains, beyond the time at which he saw Ms. Clay in Sarasota, Ms. Clay would come to Gainesville occasionally and be seen by him. N. Franklin Walters, CPA, PA, is an accountant in Gainesville, Florida, who as of September 21, 1995, had done tax returns for the SIDDAH Corporations in recent years. Mr. Walters identifies SIDDAH as a Florida corporation since 1980, with Petitioner as its sole stockholder. Petitioner is one of several paid employees in the corporation. Mr. Walters identifies the fact that the business opened a store in 1983 in Gainesville, Florida, and kept the store until October 1992, when the retail store was sold. This refers to the Crystal Forrest. Mr. Walters sets out that the Crystal Forrest sold gifts, body care items, herbs, vitamins and books relating to the aforementioned items. Mr. Walters recounts that Petitioner's duties in the store included overseeing the day manager, participating in purchasing, assisting special customers, and until April 1, 1988, offering nutritional advice to customers pertaining to herbs and vitamins carried by the store. After that time, according to Mr. Walters, Petitioner did not specifically recommend items or counsel customers on dietary supplements for a fee. After April 1, 1988, Petitioner has continued doing business in the health food industry. For that reason he obtains a lot of trade journals which have information about health care products, vitamins and minerals. Petitioner has read journals and books and researched articles from various nutritional organizations concerning the topic of nutrition. He also has access to med-line which medical doctors use to research different subjects. With the application is found a list of reference books, magazines and journals which Petitioner had read during the time in which his application was under consideration. That list is found within Joint Exhibit No. 1. With the application is included a letter dated January 16, 1996, from Robin S. Larson, DMD, PA, who practices family dentistry in Gainesville, Florida. She makes reference to information obtained from Petitioner about a sublingual vitamin C test used specifically by dentists. She relates that Petitioner ordered that test and trained her office personnel to administer it. This allowed Dr. Larson to gauge vitamin C tissue concentration in patients with gum problems. As related by Dr. Larson, Petitioner also provided information to her concerning research articles on vitamin C and gum disease. Included with the application is correspondence of January 9, 1996, from Bruce J. Rogers, M.D., who specializes in internal medicine and endocrinology in Gainesville, Florida. In his correspondence Dr. Rogers relates that Petitioner on several occasions has spoken to Dr. Rogers concerning nutritional issues and qualities of nutritional supplements. Dr. Rogers notes that Petitioner is well-read on the current research and subjects that Dr. Rogers has asked Petitioner about. In Dr. Rogers' view Petitioner has adequate understanding of biochemistry to deal with nutritional counseling. In particular, the subjects that have been discussed in greater detail between Dr. Rogers and Petitioner, and for which Petitioner has brought Dr. Rogers copies of current research articles include: (1) Trace Minerals Absorption Throughout the Blood-Brain Barrier (2) Qualities of Melatonin Tablets, including dosages and time-released availability, and macro-molecular absorption in the GI tract. Petitioner had sought the assistance of Elias Sarkis, M.D., a psychiatrist practicing in Gainesville, Florida, in child adolescent and general psychiatry, concerning his desire to submit a grant to the Alternative Medicine Council at the National Institute of Health. With this application is April 7, 1995, correspondence from Dr. Sarkis remarking that Petitioner is doing interesting in-depth reading in nutrition and its interface with psychiatry; that Dr. Sarkis has read the Letter of Intent by Petitioner to the National Institute of Health, Alternative Medicine Division and that Dr. Sarkis finds the letter of intent to be insightful and worth pursuing. Dr. Sarkis writes that he agrees to serve as an advisor for the grant, should the application be approved by the National Institute of Health. Dr. Sarkis also recommends Petitioner as a practicing nutritionist "given his previous experience". Dr. Sarkis does not explain what is meant by Petitioner's previous experience as related in 4the correspondence. Petitioner perceives that dietitians are highly trained to work with specific disease states and with institutional diets. He perceives that persons who have been nutritionists or worked in the health food industry have specifically focused on supplements and minerals more so than diets. Petitioner desires to be a nutrition counselor, not a dietitian. Ms. Lawhead is the nutrition director for the Pasco County Public Health Department in Pasco County, Florida. She has worked in public health for 25 years and in Pasco County since 1979. She has a baccalaureate degree from the University of Florida in clinical and community dietetics and a masters degree in human nutrition from Florida State University. She is currently undertaking post-graduate work toward a doctorate at the College of Public Health in the University of South Florida in the field of public health. She holds a number of certifications and registrations in the field of dietetics. As described, Ms. Lawhead was recognized as an expert in nutrition, nutrition counseling and nutrition education related to informing the public concerning nutrition. As it pertains to Petitioner's application to be licensed pursuant to Section 468.51(3), Florida Statutes, to practice as a nutrition counselor, Ms. Lawhead describes that level of activity which Petitioner must demonstrate to constitute nutrition counseling previous to and on April 1, 1988. This involves the full gamut of knowledge of individual patients, the patient's history, the patient's cultural background, other medical devices, drugs, treatments that the patient is undergoing, family history of the patient, height, weight and any available blood work, as well as explanation of a dietary supplement(s) and its use. Ms. Lawhead's opinion concerning the minimum requirements for nutrition counseling is credited. Petitioner was employed as a practitioner of nutrition counseling during the time that he worked for Drs. Pacetti and Rappaport. At no other time was Petitioner employed as a practitioner of nutrition counseling previous to April 1, 1988, nor was he employed as a practitioner of nutrition counseling on April 1, 1988.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a Final Order be entered denying Petitioner's certification to practice nutrition counseling in Florida. DONE and ENTERED this 21st day of February, 1997, in Tallahassee, Florida. CHARLES C. ADAMS 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 21st day of February, 1997. COPIES FURNISHED: Julie Gallagher, Esquire Post Office Box 10948 Tallahassee, FL 32302 Ann Cocheu, Esquire Department of Legal Affairs The Capitol PL-01 Tallahassee, FL 32399-1050 Marm Harris, Executive Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0192 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32309
The Issue Whether or not Petitioner's license to operate Jennifer's Adult Care should be renewed.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, the following relevant facts are found. Jennifer Cason is the owner/operator of Jennifer's Adult Care. Jennifer's Adult Care is an adult congregate living facility (ACLF) situated at 1022 13th Avenue South in St. Petersburg, Florida. Petitioner's ACLF license expired by its terms on February 8, 1989. Petitioner's license renewal application was denied by the Respondent by letter dated May 25, 1989. Petitioner is the subject of a confirmed report of abuse dated October 19, 1988 confirming the exploitation of C.C. a resident in Petitioner's ACLF. Petitioner was advised that she could challenge the confirmed classification if she considered that the classification was inaccurate or that it should otherwise be amended or expunged. Petitioner failed to challenge the report. On October 21, 1988 Respondent imposed a moratorium on admissions at Petitioner's ACLF. The census at that time was eight residents. That moratorium has not been lifted and therefore remains in effect at this time. As of October 2, 1990, Petitioner has not requested an exemption of the confirmed abuse report to be qualified eligible to work with disabled adults or aged persons. Petitioner's ACLF has a history of deficiencies based on surveys dating from its inception. As example, Mrs. Diane Cruz, a human services surveyor specialist who has been employed by Respondent for more than eleven years conducted a survey of Petitioner's ACLF on May 17, 1988. As a result of that survey, the following deficiencies were noted: (a) The staff's time sheets were not posted or available for review; (b) the facility did not provide adequate staff and services appropriate to the needs of the residents, to wit: one resident required catheter care and there was either no staff person or other qualified third party provider available to provide the needed catheter care; (c) the food service staff was not knowledgeable regarding purchasing sufficient quantities of essential food, proper sanitary conditions necessary for safe food preparation and food types that meet the minimum requirements for a regular diet and (d) the staff person responsible for the supervision of self-medication was not trained. The deficiency relating to the lack of staff training and the supervision of self-medication was a repeat deficiency. Petitioner was allowed through June 17, 1988 to comply with the agreed corrective action plans. By July 18, 1988 most of the items cited as deficiencies were corrected however, Petitioner failed to correct two deficiencies relating to admission criteria and resident standards including (a) one resident's health assessment had not been completed more than 60 days prior to admission to the facility and five residents who were admitted to the facility for more than 30 days did not have a health assessment on file. Both of these deficiencies were corrected on October 5, 1988. Petitioner was also cited for certain deficiencies in the area of the physical plant in that (a) there was an inoperable ceiling light in Room 2; (b) there was no floor under the tub in the first floor corridor bath; (c) there were no non-slip safety devices in the tub of the upstairs corridor bath; (d) there was a hole in the ceiling at the south end of the first floor corridor and (e) the corners of the paneling in the first floor sitting room were broken off. Petitioner was allowed through June 17, 1988 to correct these deficiencies. As of July 18, items (a), (b), and (c) were corrected, however, items (d) and (e) remained uncorrected and were not in compliance until October 5, 1988. John C. Morton is Respondent's human services program director. He has been employed by the agency in excess of 11 years having served in his current position for approximately 3 1/2 years. As part of Morton's duties, he reviews survey reports, schedule surveys and respond to complaints received regarding ACLFs. Morton is familiar with Petitioner's facility from his review of survey findings and staff discussions. Morton prepared a deficiency report dated October 20, 1988 issued to Petitioner based on information he received from Respondent's office of adult protective services regarding a resident that Petitioner left in sole charge of Petitioner's ACLF. The resident that was left in charge was not trained to care for the residents of Petitioner's ACLF. As a result of that report, Morton cited Petitioner for failing to provide at least one staff member within the facility at all times; failure to provide sufficient staff to meet the needs of residents and leaving a resident in sole charge of other residents. The moratorium on admissions was issued effective October 21, 1988, based on that report. Mary Cook is employed by Respondent as a public health nutrition consultant. Ms. Cook has been so employed in excess of three years. She is familiar with Petitioner's facility having surveyed it on several occasions during the last three years. On January 23, 1989, Ms. Cook conducted a follow-up survey to determine whether Petitioner was in compliance with the moratorium. Following her review of the staffing patterns as listed on work schedules provided her, Petitioner listed only one staff person to work for the entire day on Sunday. However, when Ms. Cook arrived at the facility, two staff members were present. Upon inquiry, Ms. Cook was able to determine that the staff person who was present but who was not listed as working according to the schedule, also indicated that she was on duty at another area ACLF, Anita's Personal Care. Ms. Cook also participated in a survey conducted at Petitioner's facility on April 6 and 14, 1989. As a result of that survey, Petitioner was cited with deficiencies of minimum staffing standards based on the following: Several residents were being utilized as staff members to provide services to other residents including transportation, housekeeping and personal services; the facility did not have trained staff present at the facility necessary to supervise the administration of medication; (c) insulin was injected into one resident by a staff member who is not licensed to administer such medications; and (d) staff did not consistently document the residents deviation from normal food intake. Petitioner acknowledged receipt of FPSS Report No. 88-075890. Petitioner also admitted that she did not send a written request to contest the confirmed report nor has she sought an exemption to be qualified to work with disabled adults or aged persons.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's renewal application for licensure as an adult congregate living facility and cancel Petitioner's conditional license for that facility. DONE and ENTERED this 10th day of December, 1990, in Tallahassee, Florida. Copies furnished to: Paula M. Kandel, Esquire Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, FL 33614 William P. Murphy, Esquire 1500 Morgan Street Tampa, FL 33602 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 JAMES E. BRADWELL 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 10th day of December, 1990.
The Issue Whether the Petitioner's application for licensure by endorsement as a Dietitian/Nutritionist should be granted or denied for the reasons stated in the Notice of Intent to Deny dated April 15, 2008.
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: The Council, which serves under the supervision of the Board of Medicine, is the entity responsible for certifying persons for licensure by endorsement as a dietitian/nutritionist. § 468.509, Fla. Stat. (2008)1; Fla. Admin. Code R. 64B8-40.003(1)(a). On or about January 16, 2008, the Council received Ms. Alonso's application for licensure by endorsement as a dietitian/nutritionist pursuant to Section 468.513, Florida Statutes. At the time of her application, Ms. Alonso was a certified nutritionist in the State of Washington, having been issued license number NU00001939 on April 11, 2007. Ms. Alonso is not licensed in the State of Washington as a certified dietitian, nor has she taken a state or national examination for licensure as a dietitian or as a nutritionist. In 1994, Ms. Alonso earned a Bachelor's of Science degree from Cornell University in biochemistry, and, in 2000, she earned a Master's of Science degree from the University of Texas, School of Public Health, in nutrition and immunology. Prior to moving to Florida in early 2008, Ms. Alonso worked as a nutritionist in Washington State. Prior to receiving her certification as a nutritionist in Washington State, she worked as a nutritionist in several clinics under the supervision of medical and naturopathic doctors for approximately four years. During this time, she performed nutritional assessments and developed nutritional programs for the clinics' patients and provided nutritional support for the doctors working in the clinics. Ms. Alonso was licensed pursuant to Section 18.138.030, Revised Code of Washington, which sets forth the requirements for certification as a dietitian and as a nutritionist in the State of Washington. Section 18.138.030, Revised Code of Washington, provides in pertinent part: An applicant applying for certification as a certified dietitian or certified nutritionist shall file a written application on a form or forms provided by the secretary setting forth under affidavit such information as the secretary may require, and proof that the candidate has met qualifications set forth below in subsection (2) or (3) of this section. Any person seeking certification as a "certified dietitian" shall meet the following qualifications: Be eighteen years of age or older; Has satisfactorily completed a major course of study in human nutrition, foods and nutrition, dietetics, or food systems management, and has received a baccalaureate or higher degree from a college or university accredited by the Western association of schools and colleges or a similar accreditation agency or colleges and universities approved by the secretary in rule; Demonstrates evidence of having successfully completed a planned continuous preprofessional experience in dietetic practice of not less than nine hundred hours under the supervision of a certified dietitian or a registered dietitian or demonstrates completion of a coordinated undergraduate program in dietetics, both of which meet the training criteria established by the secretary; Has satisfactorily completed an examination for dietitians administered by a public or private agency or institution recognized by the secretary as qualified to administer the examination; and Has satisfactorily completed courses of continuing education as currently established by the secretary. * * * Any person seeking certification as a "certified nutritionist" shall meet the following qualifications: Possess the qualifications required to be a certified dietitian; or Has received a master's degree or doctorate degree in one of the following subject areas: Human nutrition, nutrition education, foods and nutrition, or public health nutrition from a college or university accredited by the Western association of schools and colleges or a similar accrediting agency or colleges and universities approved by the secretary in rule. The State of Washington has two certifications, one for dietitians and one for nutritionists. Pursuant to Section 18.139.030(4), Revised Code of Washington, a person qualifies to be licensed as a "certified nutritionist" if the person either meets the requirements for certification as a dietitian or has received a master's degree in the enumerated areas of study. Section 468.509, Florida Statutes, provides: Any person desiring to be licensed as a dietitian/nutritionist shall apply to the agency [for Health Care Administration] to take the licensure examination. The agency shall examine any applicant who the board certifies has completed the application form and remitted the application and examination fees specified in s. 468.508 and who: 1. Possesses a baccalaureate or postbaccalaureate degree with a major course of study in human nutrition, food and nutrition, dietetics, or food management, or an equivalent major course of study, from a school or program accredited, at the time of the applicant's graduation, by the appropriate accrediting agency recognized by the Commission on Recognition of Postsecondary Accreditation and the United States Department of Education; and 2. Has completed a preprofessional experience component of not less than 900 hours or has education or experience determined to be equivalent by the board; or 1. Has an academic degree, from a foreign country, . . . * * * The board shall waive the examination requirement for an applicant who presents evidence satisfactory to the board that the applicant is a registered dietitian. The agency shall license as a dietitian/nutritionist any applicant who has remitted the initial licensure fee and has passed the examination in accordance with this section. In contrast to Washington State, Florida has only one certification for dietitians and nutritionists. Pursuant to Section 468.509, Florida Statutes, a person qualifies to be licensed as a "dietitian/nutritionist" if the person either meets the requirements for certification set forth in Section 468.509(2), Florida Statutes, or is a registered dietitian. The requirements for licensure as a dietitian in Washington State are substantially equivalent to the requirements for certification as a dietitian/nutritionist in Florida. The requirements for certification as a nutritionist in Washington State are not, however, substantially equivalent to the requirements for licensure as a dietitian/nutritionist in Florida, because a person in Washington State can be certified as a nutritionist without meeting the requirements for certification as a dietitian if the person has an advanced academic degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding that Larisa Alonso failed to satisfy the requirements of Section 468.513(2), Florida Statutes, and denying her application for licensure by endorsement as a dietitian/nutritionist. DONE AND ENTERED this 19th day of December, 2008, 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 19th day of December, 2008.
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes.
Findings Of Fact By letter dated November 9, 1995, Dr. Francisco Belette, an oncologist, filed a complaint with the Department of Professional Regulation pertaining to Mr. Brancaleone's dealings with Christine B., a cancer patient who was being treated by Dr. Belette. That letter describes the unfortunate progression of his patient's breast cancer and includes the following: It was decided to start Christine on Tamoxifen therapy on 10/18/95. This therapy is being given in conjunction with aggressive chemotherapy and ultimately a stem cell transplant. It is my intention to offer Christine a chance at long term survival. Christine returned on 10/24/95 for f/u (a follow up visit). At this time she informed me of her conversations with Mr. Jesse Brancaleone. This gentlemen is a "nutritionist" who works at the Palm Lakes Natural Food Market. According to Christine this "nutritionist" advised her to stop taking the Tamoxifen immediately since he feels "Tamoxifen like other drugs we administer, are poisons." He claims that he "has treated thousands of cancer patients and that what we doctors do to patients is a travesty. We poison them without research." On the contrary, Tamoxifen has more than proven its role in the treatment of breast cancer. I am deeply troubled by what this gentlemen has said to my patient. He has jeopardized my patient/doctor relationship. I feel he is giving false information to patients and therefore practicing medicine without a license. I would appreciate your immediate intervention and investigation into this matter. . . . Thereafter, Daniel A. Pantano investigated the complaint on behalf of the agency and submitted an Investigative Report that was made available to the probable cause panel when it considered this matter. As part of his investigation, Mr. Pantano interviewed Dr. Belette and Christine B. by telephone. The Investigative Report reflected that Dr. Belette's telephone interview confirmed the allegations made in his letter of November 9, 1995. The Investigative Report reflected that the telephone interview of Christine B. confirmed that Mr. Brancaleone told Christine B. that she should stop taking the Tamoxifen medication that had been prescribed by Dr. Belette. By letter dated January 10, 1996, Mr. Pantano advised Mr. Brancaleone of Dr. Belette's allegations and gave him an opportunity to respond. By letter dated January 23, 1996, Mr. Brancaleone wrote the following letter in response to Mr. Pantano's letter of January 10, 1996: Please allow this letter to be my response to a complaint made by a Dr. Belette concerning one of his patients. Christine [B.] came to me for help due to her concerns over the failure of Dr. Belette in treating her breast cancer as her cancer markers continue to increase along with malignant cells over the past three years. She wanted me to build her immune system, nutritional status, and to supply her with information concerning the use of drugs and alternative methods of treatment. It was my intention to give Christine all of the information she desired concerning what nutrition and lifestyle changes have to offer her, the well known and documented side effects of taking drugs, alternative medical doctors and treatments she should consider in order to make an informed and educated decision as to what treatment she deems best for herself. I tell my clients only to be aware of the dangers and side effects of taking drugs as well as other chemicals. I do not give false information as Dr. Belette contends. The toxic reactions and side effects of drugs and other chemicals are stated in the Physicians Desk Reference, reported in prestigeous [sic] medical journals and institutions by research scientists and medical doctors throughout this country and world. This information is available to the general public. As a professional, I have an obligation to my clients to make them aware of any substance that will retard their nutritional status and immunity. I work with many wholestic [sic] medical doctors, knowledgable [sic] in the need to nutritionally support the body. They know the importance nutrition plays in their patients [sic] ability to recover. In my twenty-five years as a practicing nutritionist and six years on the radio helping people recover form illness and educating them as to a healthy lifestyle, I have never hurt anyone or had a complaint such as this. It is unfortunate that Dr. Belette is so ill-informed about orthomolecular [sic] medicine and nutritional biochemistry. Full disclosure, effects of treatments, success and failure rates, the right to a second opinion and alternative treatments are a basic right [sic] of all people. Dr. Belette, in my opinion, has compromised his patient's ability to make an informed choice and his desire to keep her ill- informed is the basis of this complaint. Please feel free to contact me at anytime. At the times pertinent to this proceeding, the North Probable Cause Panel for the Board of Medicine consisted of Dr. George Slade, M.D., Fred Varn, and Dr. Georges El-Bahri. Randy Collette, Esquire, was the attorney representing the Agency for Health Care Administration. Michael A. Mone', Esquire, was acting counsel for the Board of Medicine. The North Probable Cause Panel of the Board of Medicine considered this matter at a meeting on April 24, 1996. At the beginning of the meeting, Mr. Varn, Mr. Mone', and Mr. Collette were physically present at the Northwood Center in Tallahassee, where the meeting took place. Dr. El-Bahir participated in the meeting by telephone. Also present were Jim Cooksey and Bob Gary. Mr. Cooksey identified himself as being with "investigations." Mr. Gary identified himself as "OMC manager for north Florida." At the beginning of the meeting, certain precautionary instructions were given by the attorneys. Dr. Slade arrived at the meeting after the precautionary instructions were given but before the consideration of Mr. Brancaleone's case. Mr. Mone' advised Mr. Varn and Dr. El-Bahir that any questions concerning interpretation of the laws or rules, including the questions as to the duties of the probable cause panel, should be directed to him. Mr. Mone' also advised that Mr. Collette, as the attorney for the agency, had the responsibility of explaining the facts of the case, the reasons the agency was making its recommendation, and of answering any questions concerning the facts, the investigation, and the recommendation. Mr. Mone' further advised that the probable cause panel should not "rubber stamp" the proposed agency action, but that it should have a meaningful discussion of the reasons why probable cause is found. Both Mr. Varn and Dr. El-Bahir acknowledged they had the Investigative Report and the attachments, including the letters discussed above. Dr. Slade arrived after these acknowledgments were made. The transcript of the Probable Cause Panel meeting reflects, in pertinent part, the following: MR. COLLETTE: A-15, Jesse Brancaleone, nutrition counselor 95-17792. In February of 1993 patient CB was diagnosed as suffering from breast cancer by physician [sic], the patient had stage-two invasive duct carcinoma and started on four cycles of admiacin (ph) and two cycles of Cytosan is that it? C-y-t- o-s-a-n. MR. MONE: Cytosan. MR. COLLETTE: Cytosan. Okay. In October of '95, the patient was also started on tamoxifen therapy to be given in conjunction with aggressive chemotherapy. The patient subsequently presented to Respondent for nutritional counseling. Respondent advised the patient to discontinue taking the tamoxifen. Respondent advised the patient that the tamoxifen and other drugs prescribed by patient's physician were poisons. Respondent presented the petitioner with a written statement in January '96 which states that the patient presented to him to obtain information regarding her immune system, nutritional status and to supply her with information regarding the use of drugs and alternative methods for treatment of cancer. Respondent further indicated he advised the patient of the side effects of the medication prescribed by her physician. It's therefore alleged Respondent attempted to implement a dietary plan for a condition for which the patient was under active care of a physician, without the oral or written dietary order of the patient's physician, in violation of the provisions of Section 468.516(1)(a). It's further alleged Respondent inappropriately attempted to treat the patient's condition by means other than by dietetics and nutrition practice. Based on these facts, the Agency is alleging violations of 468.518(1)(a) and (j), recommends probable cause be found and an administrative complaint be filed. Because of the facts of the case the Agency recommends permanent revocation or suspension be sought as the maximum penalty available in the case. DR. SLADE: Motion? DR. EL-BAHRI: Moved. DR. SLADE: Second. This is certainly an egregious violation, it seems to me. MR. MONE': You don't have an (h) violation then, too, do you?1 MR. COLLETTE: No. DR. SLADE: (h) violation? MR. MONE': Is there an (h) violation that you are suggesting in there as well? MR. COLLETTE: I don't think so. MR. MONE': Committing an act of fraud or deceit or negligence or competency or misconduct. MR. COLLETTE: I don't have an opinion that backs me up to go that far. MR. MONE': Okay. MR. COLLETTE: I think that's something that we maybe were looking at at one time, but I didn't have enough to go forward on it. DR. SLADE: It doesn't speak for itself, though? It seems to me. MR. MONE': The problem is that while you and I and most of the medical world may agree that it speaks for itself, in the course of a prosecution, the hearing officer is going on those types of violations to rely on an expert opinion and some expert to come in and say that it is. MR. COLLETTE: I think it's much more evident on its face for the violation of inappropriately attempting to treat patient's means, by means other than dietetic or nutrition practices. I think that's something that anybody can see, you know. Nutrition counselors and dieticians are not in the realm of deciding when or when not to prescribe tamoxifen or other chemotherapy or treatment drugs of that nature; that's strictly the purview of specialized physicians and not nutrition counselors. DR. EL-BAHRI: Dr. Slade. DR. SLADE: Yes. DR. EL-BAHRI: Isn't it clear that he attempted to discontinue or he discontinued the tamoxifen, right? DR. SLADE: Yes. MR. COLLETTE: That's what the patient is alleging and will swear to, is that the nutrition counselor told her to stop taking the tamoxifen. DR. EL-BAHRI: Which is, by itself, is a pretty serious violation. MR. COLLETTE: Yes, it is; but it's the violation of attempting to treat a patient by means other than nutrition counseling. He is basically - DR. EL-BAHRI: Practicing without a license. 2 MR. COLLETTE: He is very, very close to that offense, yes, sir. Very close. DR. SLADE: And we -permanent record-okay, I just wanted to make sure. MR. COLLETTE: Yes. DR. SLADE: Okay. All in favor? (Chorus of ayes.) Based on the stipulation of the parties, it is found that the amount of attorney's fees and costs reflected by the affidavit filed prior to hearing were reasonable and necessary up to the point of October 29, 1997. Based on the stipulation of the parties, it is found that the there are no circumstances which would make an award of fees and costs unjust. Based on the stipulation of the parties, it is found that the DOH and AHCA were not nominal parties in DOAH Case No. 96-3354. Based on the stipulation of the parties, it is found that Mr. Brancaleone was a prevailing party in DOAH Case No. 96-3354. The affidavit filed at the formal hearing in this proceeding, is, in the absence of any evidence to the contrary, found to be for services that were reasonable and necessary. At all times pertinent to this proceeding, Part X of Chapter 468, Florida Statutes, consisting of Sections 468.501 through 458.518, constituted the Florida Dietetics and Nutrition Practice Act. At all times pertinent to this proceeding, Section 468.516(1)(a), Florida Statutes, has provided as follows: (1)(a) A licensee under this part shall not implement a dietary plan for a condition for which the patient is under the active care of a physician licensed under chapter 458 or chapter 459, without the oral or written dietary order of the referring physician. In the event the licensee is unable to obtain authorization or consultation after a good faith effort to obtain it from the physician, the licensee may use professional discretion in providing nutrition services until authorization or consultation is obtained from the physician. At all times pertinent to this proceeding, Section 468.518(1)(a) and (j), Florida Statutes, have provided as follows: The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken: Violating any provision of this part, any board or agency rule adopted pursuant thereto, or any lawful order of the board or agency previously entered in a disciplinary hearing held pursuant to this part, or failing to comply with a lawfully issued subpoena of the agency. The provisions of this paragraph also apply to any order or subpoena previously issued by the Department of Business and Professional Regulation during its period of regulatory control over this part. * * * (j) Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice or nutritional counseling. Count One of the Administrative Complaint in DOAH Case No. 96-3354 charged that Mr. Brancaleone attempted to implement a dietary plan for Christine B., thereby violating the provisions of Section 468.516(1)(a), Florida Statutes. The violation of Section 468.516(1)(a), Florida Statutes, was alleged to be a violation of Section 468.518(1)(a), Florida Statutes.3 Count Two of the Administrative Complaint in DOAH Case No. 96-3354 charged that Mr. Brancaleone attempted to treat Christine B.'s condition by means other than by dietetics and nutrition practice.4 Mr. Brancaleone is the owner of a Subchapter S corporation named Palm Lakes Natural Food Market and Café, Incorporated, which operates as a natural food market and café in Margate, Florida. At the times pertinent to this proceeding, Mr. Brancaleone engaged in the practice of nutritional counseling in the back of the natural food market and café. The fees earned by Mr. Brancaleone as a nutritional counselor are paid directly to him, not to his corporation. Although he testified that he was an employee of that corporation and that he practiced from facilities owned by that corporation, Mr. Brancaleone did not establish that he practiced nutritional counseling through his corporate entity. Mr. Brancaleone did not have a net worth of two million dollars or more at any time pertinent to this proceeding. Mr. Brancaleone's corporation did not have a net worth of two million dollars or more at any time pertinent to this proceeding. Mr. Brancaleone did not employ more than twenty-five full time employees at any time pertinent to this proceeding. Mr. Brancaleone's corporation did not employ more than twenty- five full time employees at any time pertinent to this proceeding.
