The Issue Was Respondent lawfully terminated from his position as a waste water treatment plant operator.
Findings Of Fact 1. Respondent was employed by the Board as a waste water treatment plant operator since at least August 19, 1999. 2. On the night of August 9, 2000, Respondent was present at a dwelling located at 6079 Hilburn Road, Pensacola, Florida. This is a dwelling which is leased by Nicholas Monteleone. 3. Deputy James Newton of the Escambia County Sheriff's Office, along with other officers, executed a search warrant at the dwelling located at 6079 Hilburn Road on August 9, 2000. The apparent target of the warrant was Nicholas Monteleone and the crime giving rise to the search warrant was possession and distribution of LSD, a controlled substance. 4. Deputy Newton was stationed at the rear exit of the dwelling during the execution of the warrant. When the officers executing the warrant knocked on the front door of the dwelling, Deputy Newton observed three individuals run out of the back door. 5. Deputy Newton observed the second individual reach into his pants pocket, pull out an object, and throw it on the ground. This individual was identified by Deputy Newton as being the Respondent. Deputy Newton retrieved the object, which was determined to be a small bag containing an unknown substance. The matter in the bag was field tested for controlled substances. The test revealed the presence of cocaine. 6. Charles Peterson is the assistant director of maintenance services for the Board and as such, is Respondent's supervisor. 7. Mr. Peterson learned of Respondent's arrest on August 10, 2000. Subsequent to a meeting between Mr. Peterson, Dr. Douglas Garber, who is the Board's Assistant Superintendent for Human Resources; Mark Pursell; and the Board's risk manager, it was determined that reasonable suspicion existed to believe Respondent possessed cocaine in his body. They decided to require that Respondent submit to a drug test. 8. Mr. Peterson, Dr. Garber, Mark Pursell, and the risk Manager determined that Mr. Peterson should escort Respondent to the Baptist Medical Park Occupational Health facility in Pensacola, Florida. This decision occurred while Respondent was on leave. Mr. Peterson complied with this instruction on August 22, 2000. 9. At the facility Respondent provided a urine sample and signed a statement certifying as follows: "I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct." 10. Although the sample collector, Cynthia Watkins, deviated from the facility procedures for urine collection, the procedures she used were sufficient to ensure that the urine collected was in fact Respondent's. Her logs indicated that Respondent was the only person from whom she collected urine on August 22, 2000. A proper chain of custody was prepared and the sample was sent to Rapid-Net, a drug testing laboratory in Miami, Florida. 11. On August 30, 2000, the laboratory determined that Respondent's urine contained cocaine metabolite. On August 31, 2000, a medical review officer certified this finding. 12. Respondent had signed a document, on August 19, 1999, certifying that he had received the Board's notice to employees regarding the drug-free workplace policy. Respondent had further certified that he understood that compliance with the policy was a condition of employment. At the hearing Respondent asserted that he was fully aware of this policy prior to the incidents giving rise to this hearing. 13. The Board's "NOTICE TO EMPLOYEES REGARDING DRUG-FREE WORKPLACE PROGRAM" states as follows: "It is a violation of the policy of the School Board for any employee to manufacture, distribute, dispense, possess or use drugs whether in the workplace or away from the workplace including non-working hours." 14, The policy further recites that the Board may require an employee to submit to a drug test upon reasonable suspicion. 15. Respondent took voluntary drug tests and results were determined on August 31, 2000, September 6, 2000, and December 31, 2000. All of these drug tests were negative for controlled substances. 16. The Respondent possessed drugs within his body on August 22, 2000, as demonstrated by a urinalysis based on reasonable suspicion. This possession violated the Board's drug-free workplace policy. It is the consistent practice of the Board to terminate employees who are found to be involved with illegal drugs.
Conclusions For Petitioner: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 For Respondent: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered terminating Respondent, Constantine V. Varazo, from his employment by the Escambia County School Board. DONE AND ENTERED this 1e(G day of June, 2001, in Tallahassee, Leon County, Florida. Y L. HOOPKR ) 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 /“@*day of June, 2001. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue is whether Rule 64B15-14.008, Florida Administrative Code, which prescribes standards for the practice of telemedicine by osteopathic physicians, is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioner.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a licensed osteopathic physician and, as such, he is subject to the Board's licensing and regulatory authority. Petitioner is certified as a family practitioner. His practice includes prescribing drugs, diagnosis and treatment of diseases, and patient care. Petitioner typically sees 15 to 18 patients per day in his office. Petitioner has in the past prescribed legend drugs based solely upon his review of medical questionnaires completed and transmitted over the Internet by persons interested in obtaining specific drugs. Petitioner typically dealt with 50 to 100 patients per day in this manner. As a result of the Telemedicine Rule, Petitioner no longer prescribes drugs in this manner. (Petitioner's Internet practice is more fully discussed below in Part D.) Petitioner was compensated for his review of the Internet medical questionnaires by World Wide Web Enterprises, the company that maintained the Internet website through which the medical questionnaires were completed and transmitted by prospective patients. Petitioner was compensated whether or not he issued a prescription to the patient. Respondent is a regulatory board established within the Department of Health to regulate the practice of osteopathic medicine pursuant to Chapter 459, Florida Statutes. The Board is a member of the Federation of State Medical Boards (FSMB), and routinely receives reports on various subjects from FSMB. The reports are regularly included as agenda items for Board meetings. The Challenged Rule The Telemedicine Rule provides: 64B15-14.008 Standards for Telemedicine Practice. Prescribing medications based solely on an electronic medical questionnaire constitutes the failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by reasonably prudent osteopathic physicians as being acceptable under similar conditions and circumstances, as well as prescribing legend drugs other than in the course of an osteopathic physician’s professional practice. Such practice shall constitute grounds for disciplinary action pursuant to Sections 459.015(1)(x) and (t), F.S. Osteopathic Physicians shall not provide treatment recommendations, including issuing a prescription, via electronic or other means, unless the following elements have been met: A documented patient evaluation, including history and physical examination, adequate to establish the diagnosis for which any drug is prescribed. Sufficient dialogue between the osteopathic physician and the patient regarding treatment options and the risks and benefits of treatment. Maintenance of contemporaneous medical records meeting the requirements of Rule 64B15-15.004, F.A.C. The provisions of this rule are not applicable in an emergency situation. For purposes of this rule an emergency situation means those situations in which the prescribing physician determines that the immediate administration of the medication is necessary for the proper treatment of the patient, and that it is not reasonably possible for the prescribing physician to comply with the provision of this rule prior to providing such prescription. The provisions of this rule shall not be construed to prohibit patient care in consultation with another physician who has an ongoing relationship with the patient, and who has agreed to supervise the patient’s treatment, including the use of any prescribed medications, nor on-call or cross-coverage situations in which the physician has access to patient records. The Telemedicine Rule became effective on October 16, 2001. Petitioner did not request a workshop or a public hearing on the proposed rule pursuant to Section 120.54(2)(c) or (3)(c), Florida Statutes, nor did he challenge the proposed rule pursuant to Section 120.56(2), Florida Statutes. The Telemedicine Rule cites only Sections 459.005 and 459.015(1)(z), Florida Statutes, as the "specific authority" for the rule, and cites only Section 459.015(1)(x) and (1)(t), Florida Statutes, as the "law implemented" by the rule. The rule does not specifically define "telemedicine"; however, that term is generally understood to mean the practice of medicine through or with the assistance of information technology and electronic communication in circumstances where the patient and the physician are geographically separated. Rule Adoption Process 1. March 9, 2001, Board Meeting The Board first considered the issues of telemedicine and Internet prescribing of medications at its general business meeting on March 9, 2001. At that meeting, the Board discussed the FSMB legislative report dated September/October 2000 which had been provided to the Board for "information only." That report did not include any specific findings related to adverse impacts of telemedicine or Internet prescribing of medications. It simply summarized legislative activity taken by and/or pending before Congress and the legislatures of other states on those issues. The Board was also provided a memorandum from FSMB dated January 31, 2001. The memorandum discussed a "clearinghouse" established by FSMB to "facilitate efforts to regulate questionable or 'rouge' websites that offer prescription drugs or other medial services on the basis of an online questionnaire [because] [s]uch prescriptions are issued without an appropriate evaluation by a physician . . . ." The memorandum also referred to and quoted from an April 2000 report prepared by FSMB's Special Committee on Professional Conduct and Ethics (Special Committee). The Special Committee's report (or at least a portion thereof) was also provided to the Board. In the report, the Special Committee recommended that FASB's member boards: consider it an unprofessional conduct for a physician to provide treatment recommendations, including issuing a prescription, via electronic means, unless the physician has obtained a history and physical examination of the patient adequate to establish diagnoses and identify underlying conditions and/or contra- indications to the treatment recommended/provided. The report identified several exceptions to this general principle, including emergencies defined by the state medical board, treatment provided in consultation with another physician who has an ongoing relationship with the patient, and on-call and cross-call coverage situations. The Special Committee's report included the following analysis, which is pertinent here: Prescribing of medications by physicians based solely on an electronic medical questionnaire clearly fails to meet an acceptable standard of care and is outside the bounds of professional conduct. In order to meet a standard of practice acceptable to the state medical board, the physician should demonstrate that there has been (1) a documented patient evaluation, including history and physical examination, adequate to establish the diagnosis for which the drug is being prescribed and identify underlying conditions and contra- indications (2) sufficient dialogue between the physician and patient regarding treatment options and the risks and benefits of treatment(s) (3) a review of the course and efficacy of treatment to assess therapeutic outcome and (4) maintenance of a contemporaneous medical record that is readily available to patients and their other health care professionals. (Emphasis in original). In discussing the agenda item, the Board chairman (Ronald B. Kaufman, D.O.) stated that Internet prescribing without seeing the patient has "kind of been a problem." Dr. Kaufman did not elaborate on this comment, but he did state his opinion that "anybody who receives a prescription should have been seen by the physician." No other Board members offered any significant input on the issue. The dean of the Nova Southeastern University College Osteopathic Medicine addressed the Board on the issue of Internet prescribing. He stated that a committee made recommendations to the Legislature on the issue, but that the committee's draft legislation only got to "first base legislatively." In response, the Board chairman stated "I believe we should be on the forefront rather than waiting for legislative action " At the conclusion of its discussion, the Board directed its attorney to draft a rule regarding Internet prescribing. Thereafter, the Board initiated the formal rulemaking process. 2. Notice of Rule Development On April 27, 2001, the Board published notice of rule development for the Telemedicine Rule in the Florida Administrative Weekly pursuant to Section 120.54(2)(a), Florida Statutes. As noted above, Petitioner did not request a rule development workshop. The record does not reflect whether a rule development workshop was requested on the Telemedicine Rule by someone other than Petitioner, nor whether such a workshop was held. 3. June 8, 2001, Board Meeting The Telemedicine Rule was next discussed by the Board at its June 8, 2001, general business meeting. The record includes almost no detail of the June 8, 2001, meeting. Apparently, no court reporter was present to transcribe the meeting (despite the fact that the minutes reference a court reporter), and the machine used to tape record the meeting malfunctioned. As a result, there is no discernable audio recording of the meeting. The minutes of the June 8, 2001, meeting do not detail the substance of the Board's discussion on the Telemedicine Rule or the rationale for the Board's decision to approve the Telemedicine Rule. The minutes simply state that "[a]fter much discussion, Dr. Moran moved to APPROVE the language as proposed. Ms. Agudo seconded the motion, which passed unanimously." Aside from the minutes, the only materials from the June 8, 2001, meetings that were introduced at the hearing were legislative reports from FSMB dated January/February 2001 and March 2001. Those reports did not include any specific findings related to the adverse impact of telemedicine or Internet prescribing of medications. They simply summarized legislative activity taken by and/or pending before Congress and the legislatures of other states on those issues. 4. Notice of Proposed Rulemaking On August 3, 2001, the Board published notice of the Telemedicine Rule in the Florida Administrative Weekly pursuant to Section 120.54(3)(a), Florida Statutes. The notice stated that a public hearing would be held on the Telemedicine Rule if requested within 21 days of the notice and, if requested, notice of the hearing would be published in the Florida Administrative Weekly. As noted above, Petitioner did not request a public hearing. The record does not reflect whether a public hearing was requested by any other person, nor does it reflect whether a public hearing was held on the rule. 5. September 21, 2001, Board Meeting The Board again discussed the Telemedicine Rule at its general business meeting on September 21, 2001. The notice published in the Florida Administrative Weekly for that meeting did not indicate that its purpose was a public hearing on the rule. Instead, the notice indicated that the subject matter of the meeting was "[r]egular Board business." The agenda for the September 21, 2001, meeting referred to the meeting as a "rules workshop." The agenda included the parenthetical notation of "status update" beside the Telemedicine Rule agenda item. Despite that notation, the transcript of the meeting shows that the Board actually discussed and debated the substance of the Telemedicine Rule. At the outset of the discussion, the Board attorney noted that the language of the rule is "very close" to the suggested language circulated by FSMB, which it is. Compare Finding of Fact 8 (rule language) with Finding of Fact 18 (FSMB recommendations). The Board's discussion did not include any additional analysis of the standard of practice issues implicated by Internet prescribing of medicine. Instead, the discussion focused on potential loopholes in the rule and a desire not to impact "legitimate uses of teleconferencing." The only materials from the September 21, 2001, meeting introduced at the hearing (aside from the agenda, minutes, and transcript) were a newsletter and e-mail from FSMB which referenced actions being taken by other states to deal with Internet prescribing of medicines. Neither of those items discussed any standard of practice issues implicated by Internet prescribing. At the conclusion of the discussion, the Board again unanimously "approved" the Telemedicine Rule. That approval was unnecessary under Chapter 120, Florida Statutes, and served no legal purpose. However, the approval apparently triggered the filing of the rule for adoption with the Secretary of State because the rule was filed several days after the meeting.1 Petitioner's Internet Practice2 Petitioner prescribed approximately ten different drugs in the course of his Internet practice. Those drugs included Viagra (for erectile disfunction), Propecia (for hair loss), Celebrex (an anti-inflammatory for arthritis), Retin-A (for acne), Claratin (for allergies), and Xenical (for weight loss and treatment of hyperlymphadenias and chronic constipation). Almost 90 percent of the Internet prescriptions ordered by Petitioner were for Viagra and Propecia, with Viagra accounting for 60 to 65 percent of the prescriptions. In his Internet practice, Petitioner received completed medical questionnaires from potential patients. The questionnaires were completed by the patient through the website operated by World Wide Web Enterprises (www.privatedrugstore.com), which Petitioner could then access via his computer. The patient was not told which physician would be reviewing his or her request; the patient was told only that the request would be reviewed by a licensed Florida physician. The Internet medical questionnaire requested basic medical information from the patient -- e.g., age, sex, height, weight, blood pressure level, allergies, history of surgeries, other medicines that the patient was taking. The questionnaires are similar to the medical history forms which Petitioner uses for his office patients. The format of the questionnaire required the patient to answer yes or no to each question; however, "text boxes" were provided for the patient to include additional explanation as necessary. The Internet medical questionnaires were specifically tailored to the drug that the patient was requesting. In this regard, the questionnaires were designed to screen out those who absolutely should not be taking the drug, either because of a medical condition the patient has or another medication that the patient is taking. For example, the questionnaire filled out by a patient requesting Viagra specifically asked whether the patient is taking nitrates (which is "contra-indicated" by Viagra, meaning that the two drugs should not be taken together), whether the patient's blood pressure is above or below certain levels, and whether the patient had specified heart-related problems within the past six months. Petitioner did not independently verify the medical history provided by the patient on the Internet questionnaires, nor did he confirm the diagnosis (e.g., erectile disfunction, acne) for which the patient was requesting the prescription; Petitioner simply relied upon the information and diagnosis provided by the patient. While Petitioner also relies upon the medical history information provided by his office patients, he is able to verify some of that information because his standard office practice ensures that the patient's vital signs -- e.g., height, weight, blood pressure, heart rate, respiration, temperature -- will be taken. This verification is important because some conditions, such as high blood pressure, have no discernable symptoms to the patient but are contra-indicators for some of the drugs Petitioner prescribed over the Internet, such as Viagra. In circumstances where the patient's answers to the questions on the Internet questionnaire indicated a contra- indication, the computer software automatically rejected the patient's request, and it was not forwarded to Petitioner (or any other physician). For those requests that were forwarded to Petitioner, he reviewed the patient's medical history, as reflected on the medical questionnaire and determined whether the patient should be prescribed the requested medication. He made that determination based solely upon his review of the medical questionnaire and his medical education, training and experience. Petitioner did not make alternative treatment recommendations to the patient; he simply determined whether the patient should receive the drug that he or she requested. In this regard, Petitioner did not assess whether another treatment option -- e.g., testosterone supplements in lieu of Viagra to address erectile disfunction -- might be better for his Internet patients. By contrast, Petitioner has the opportunity to (and does) discuss treatment alternatives with those patients that he sees in his office. All of the prescriptions ordered by Petitioner (and the other physicians who review medical questionnaires for World Wide Web Enterprises) are filled by the same pharmacy, which has some sort of relationship with World Wide Web Enterprises. The pharmacy maintains records regarding the patient, including when the medication was last dispensed to the patient and the amount dispensed. The pharmacy's pharmacist has an independent professional obligation to not fill a prescription if he or she has information (such as through the Internet medical questionnaire or some other means) showing that the patient is taking a drug that is contra-indicated. The pharmacy ships the drug to the patient via FedEx, which requires an adult signature for delivery. The person who signs for the drug has to be the person who requested the prescription through the Internet medical questionnaire. This is done in an attempt to ensure that the drug is sent to the person who requested it, and that it is not sent to a minor. The standard of practice which Petitioner follows for the patients he sees in his office is different than the standard of practice that he followed for his Internet patients. The standard practice followed in his office is higher than that followed for his Internet patients. In this regard, it is significant that Petitioner did not testify that he would prescribe Viagra, Propecia or the other drugs that he prescribed over the Internet to a new patient who walked into his office without at least taking the patient's vital signs or discussing the treatment options with the patient. Moreover, Petitioner's observations of the patients that he sees in his office help him diagnose the patient and make treatment recommendations -- e.g., identifying the extent of the patient's acne and the need (or not) for Retin-A.
The Issue The issues are (1) whether Petitioner improperly disallowed payment for the dates of service set forth in the notices of disallowance sent by Petitioner to the provider, Clay O. Selley, D.C., and (2) whether Petitioner is required to pay the fees of the expert medical advisors utilized by the Agency for Health Care Administration in conducting its review of Dr. Selley's challenge to the notices of disallowance.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Background On May 23, 1990, M. H. (hereafter "Claimant")2 suffered an injury to his lower back while moving a compressor at the construction site where he was working. The nature of the injury was a lumbosacral strain. The Claimant sought workers' compensation benefits for the injury, and on January 8, 1991, the judge of compensation claims (JCC) approved a stipulated settlement of the Claimant's workers' compensation claim. The settlement released the employer and the carrier from liability for future payments of compensation "other than future medical expenses." The settlement agreement stated that the Claimant attained maximum medical improvement (MMI) on August 31, 1990, "as per Dr. Phillip Appleton," a chiropractor. The settlement agreement further stated that "[f]or purposes of this Stipulation and Joint Petition, it is stipulated that the Claimant has a qualifying permanent partial impairment of the body as a whole of approximately 5%." The Claimant subsequently sought care from another chiropractor, Dr. Lana Perkins. Dr. Perkins first treated the Claimant in October 1990. Dr. Perkins placed the Claimant at MMI on March 12, 1991, with a zero percent permanent partial impairment rating. Nevertheless, the Claimant continued to seek (and Petitioner apparently continued to pay for) chiropractic care from Dr. Perkins through September 1992. After Dr. Perkins, the Claimant received (and Petitioner apparently paid for) treatment from another chiropractor, Dr. Dale Turner. Dr. Turner treated the Claimant from November 1992 to June 1995. When Dr. Turner retired in 1996, Dr. Selley took over the chiropractic treatment of the Claimant. By that time, the Claimant had received more than 80 chiropractic treatments from his previous chiropractors. Treatment of the Claimant by Dr. Selley On March 12, 1996, Dr. Selley received formal authorization from Petitioner to treat the Claimant. As of the date of the hearing, Dr. Selley was still authorized to treat the Claimant. He has never been de-authorized by Petitioner. "Authorization" requires Petitioner to reimburse Dr. Selley for his treatment of the Claimant, but only if such treatment is medically necessary. Dr. Selley first saw the Claimant on March 20, 1996, at which time he conducted a physical examination of the Claimant and reviewed x-rays taken by Dr. Turner in June 1995. Dr. Selley diagnosed the cause of the Claimant's ongoing back pain as muscle inflammation in conjunction with dysfunctional joints or, more specifically, "chronic joint dysfunction subluxation complex of L5 and lumbar myofascitis associated with lumbalgia [sic]." Dr. Selley attributed this condition to the Claimant's 1990 accident, and identified the following treatment plan for the Claimant: I will treat this patient utilizing chiropractic adjustments and physical therapy on an as needed (prn) basis. I will instruct the patient to call for an appointment if he experiences an episode of pain that does not resolve within a couple of days of home care. I will instruct him to continue with his home exercises. Dr. Selley treated the Claimant very infrequently between 1996 and 1999. Specifically, he saw the Claimant on seven occasions in 1996, one occasion in 1997, three occasions in 1998, and seven occasions in 1999. The frequency of treatment increased dramatically in 2000 and 2001. Dr. Selley saw the patient 47 times in 2000 and 28 times in 2001. Dr. Selley's office notes do not include any objective findings to explain the dramatic increase in treatment. Nor do the office notes identify any particular event that may have triggered the Claimant's need for greatly increased treatment. Each of Dr. Selley's office notes include the notation PRN, which means that the Claimant should return on an "as needed" basis. That plan is consistent with the concept of palliative care, which is treatment intended to mitigate the conditions, effects, or pain of an injury, rather than treatment intended to rehabilitate the patient. The treatment rendered by Dr. Selley between 1996 and 1999 is consistent with a PRN plan. During that period, Dr. Selley often did not see the Claimant for months at a time. By contrast, the chronology of treatment reflected in Dr. Selley's office notes for 2000 and 2001 strongly suggests that despite the PRN notations, the Claimant was actually being scheduled for follow-up appointments rather than being seen on an "as needed" basis. For example, the Claimant saw Dr. Selley on the same day(s) of the week -- i.e., Monday and Wednesday, or Tuesday and Thursday – for weeks at a time. Regularly scheduled appointments are not consistent with the concept of palliative care. At each appointment (including the specific dates of service at issue in this proceeding), the treatment rendered by Dr. Selley was "lumbar, lumbosacral and sacropelvic adjustments and joint mobilization along with EMS to the lumbar musculature and pulsed ultrasound to the lower back." Dr. Selley continued this same course of treatment throughout 2000 and 2001 despite the fact that the Claimant's symptoms did not show any significant improvement as evidenced by the increasing frequency of the treatments. The Agency's August 24, 2001, determination letter (discussed below) concluded that the course of treatment rendered by Dr. Selley was not medically necessary after March 28, 2001, because of its ineffectiveness. However, the weight of the evidence presented at the hearing demonstrates that Dr. Selley should have, in the words of one of the EMAs (Randolph Harding, D.C.), "thrown in the towel" on this course of treatment much sooner than that date. The burden is on Dr. Selley to demonstrate, through objective findings in his records, the reason that he continued to provide the same treatment to the Claimant despite its ineffectiveness. Dr. Selley's records failed to include such objective findings and, hence, failed to demonstrate medical necessity of the treatment he provided, including the treatment provided on the disputed dates of service. Objective findings are particularly important where, as here, the Claimant has reached MMI because MMI is the point at which additional remedial care is of no benefit to the patient. In order to justify additional remedial care, the provider would have to objectively find that the patient has had some type of exacerbation or injury that necessitates additional treatment to return the patient to the level he or she had attained at MMI. No such findings appear in Dr. Selley's records for 2000 and 2001. Objective findings are also important in the context of palliative care, which is how Dr. Selley and the Agency characterize the disputed services. Where, as here, the treatments are not achieving the goals of palliative care, objective findings are necessary to justify continuing the ineffective care in lieu of pursuing another course of treatment. As Dr. Harris testified (paraphrasing Dr. Harding), if the patient is not benefiting from the course of treatment in a palliative care situation yet the doctor continues to treat, "the doctor is the one being helped not the patient." Petitioner's Utilization Review Utilization review is an evaluation of the appropriateness of both the level and quality of health care rendered to a patient. The primary purpose of utilization review, both generally and in the workers' compensation context, is to contain health care costs. In the workers' compensation context, insurance companies such as Petitioner are statutorily required to review all bills, invoices, and other claims for payment submitted by health care providers to identify overutilization and billing errors. Such utilization review can be characterized as either retrospective review (because the treatment has already been rendered) or concurrent review (because payment has not yet been made). Utilization review is conducted through a review of the provider's clinical records. That is what occurred in both Petitioner's internal review pursuant to Section 440.13(6), Florida Statutes, and the review by the EMAs selected by the Agency in connection with the dispute under Section 440.13(7), Florida Statutes. When performing a utilization review, it is critical that the reviewers have all of the pertinent records. A review of inadequate or incomplete records is an inadequate or incomplete review. Petitioner first conducted a utilization review of Dr. Selley's treatment of the Claimant in 1998. The utilization review was conducted through an independent medical examination and clinical record review by James Barringer, D.C., and a clinical record review by Dr. Harris. Petitioner provided all of the Claimant's medical records (including the records of the chiropractors who treated the Claimant prior to Dr. Selley) to Dr. Barringer and Dr. Harris. Dr. Barringer concluded that the Claimant's continuing back pain was not related to the 1990 accident. Instead, Dr. Barringer was of the opinion that "the patient's problems are solely related to the arthritis and due to the multiple other injuries that he has had." Accordingly, in his report dated February 24, 1998, Dr. Barringer stated "I don't feel that any further treatment is clinically necessary or related to the work accident of 5/23/90." By contrast, Dr. Harris concluded that although the Claimant could have strained his back in a new injury, Dr. Selley had provided the minimal objective documentation to support his continued treatment of the Claimant as being related to the accident. In his April 10, 1998, report, Dr. Harris stated that the treatment rendered by Dr. Selley in 1996 and 1997 "was both reasonable and medically necessary in relation to the 5/23/90 accident." Despite Dr. Barringer's opinion, Petitioner continued to allow Dr. Selley to treat the Claimant. In late 2000 or early 2001, Petitioner initiated another utilization review of Dr. Selley's treatment of the Claimant. The utilization review consisted of a clinical record review by Dr. Harris and Joseph Costello, D.C. Petitioner provided all of the Claimant's medical records (including the records of the chiropractors who treated the Claimant prior to Dr. Selley) to Dr. Harris and Dr. Costello. In his report dated January 23, 2001, Dr. Costello concluded: Based upon my review of the records provided, it is my opinion that initially the chiropractic care furnished to this patient by Dr. Selley appears to have been provided on a rather conservative and isolated basis through 1999. I must, however, state that his complaints evidently changed, as per the records of Dr. Selley beginning on Monday, March 31, 1997. Since that time, there are complaints indicating radiation into his left lower extremity. It is my opinion after reviewing all records provided, that these new complaints do not appear to be directly, nor causally attributed to his original work comp [sic] injury of May 23, 1990. It is therefore my opinion that the aggressive treatment furnished to this patient in the year 2000 does not appear to be necessary, reasonable, nor related in connection to the work comp [sic] injury of May 23, 1990. It is therefore my conclusion that this treatment would be construed to be excessive and not medically necessary, nor reasonable in connection to the work comp [sic] injury of May 23, 1990. In his report dated February 16, 2001, Dr. Harris reached the opposite conclusion than he reached in his 1998 report. He concluded that Dr. Selley provided insufficient objective evidence to support his continued course of treatment for the Claimant. Accordingly, Dr. Harris opined: Dr. Selley has failed to demonstrate the causal relationship between the ongoing symptoms and the accident of 5-23-90. More importantly, he has failed to demonstrate there is a medical need for his care based upon objective evidence which causes the findings to be greater than the 5% [impairment rating] ascribed to this patient previously. Therefore, . . . all the treatment in the calendar year 2000 is both unreasonable and medically not necessary as it relates to the accident of May 23, 1990. By letter dated February 9, 2001, Petitioner informed Dr. Selley of the results of its utilization review. Specifically, the letter informed Dr. Selley that: Based upon the [Petitioner's] utilization review investigation and the peer review reports, [Petitioner] has a reasonable basis to conclude overutilization and improper utilization as it relates to your treatment of this claimant. Based upon the reports, it appears your treatment has been provided at inappropriate levels of service and the prolonged period of treatment that you have provided was not medically necessary as it relates to [the] industrial accident. Additionally, some of the bills submitted may not have been submitted in a timely fashion. The letter emphasized that Dr. Selley was not de- authorized, but it informed him that Petitioner intended to "review [his] medical bills and disallow specific bills based upon [Petitioner's] investigation . . . ." The letter offered Dr. Selley the opportunity to resolve the dispute through negotiation with Petitioner. The record does not reflect whether Petitioner and Dr. Selley attempted to negotiate a resolution of this matter, but if they did their efforts were not successful. Notices of Disallowance On February 12, 2001, Petitioner sent Dr. Selley a Notice of Disallowance (First Notice), which Dr. Selley received on February 19, 2001. The First Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: November 7, 14, and 16, 2000; and January 23, 2001. However, Petitioner subsequently reimbursed Dr. Selley for all of those dates of service except January 23, 2001. The First Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on January 19, 2001, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. However, as of the date of the hearing, Petitioner had not reimbursed Dr. Selley for that date of service. On March 6, 2001, Petitioner sent Dr. Selley a second Notice of Disallowance (Second Notice), which Dr. Selley received on March 9, 2001. The Second Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: January 29, 2001, and February 20, 2001. The Second Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on February 2, 2001, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. However, as of the date of the hearing, Petitioner had not reimbursed Dr. Selley for that date of service. On March 15, 2001, Petitioner sent Dr. Selley a third Notice of Disallowance (Third Notice), which Dr. Selley received on March 20, 2001. The Third Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: November 28, 2000, and December 14, 2000. The Third Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on December 5, 2000, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. Petitioner subsequently reimbursed Dr. Selley for that date of service. The treatment provided on each of the dates of service in dispute, as set forth in Dr. Selley's office notes, was "lumbar, lumbosacral and sacropelvic adjustments and joint mobilization along with EMS to the lumbar musculature and pulsed ultrasound to the lower back." Except for the December 14, 2000, date of service, the amount billed by Dr. Selley on each date was $82.00. The maximum reimbursement allowed under the workers' compensation fee schedule for those services is $41.60. The amount billed on December 14, 2000, was $100.00 because another service (procedure code 99070 EM) was purportedly rendered on that date in addition to those services which were rendered on the other dates in dispute. The amount billed for the additional service was $18.00. The record does not reflect what procedure code 99070 EM means, nor does it reflect the maximum reimbursement amount for that service under the workers' compensation fee schedule. Dr. Selley's office note for December 14, 2000, does not describe the additional service. The description of the treatment rendered on that date is identical to the description of the treatment rendered on the other dates of service in dispute. Accordingly, there is insufficient evidence to justify the additional $18.00 charge for the December 14, 2000, date of service. At the hearing, Dr. Selley testified that he had not been reimbursed by Petitioner for the following additional dates of service: February 27, 2001; March 15 and 28, 2001; April 10, 2001; May 3 and 29, 2001; June 13, 19, 21, and 25, 2001; and July 13, 2001. However, the parties stipulated (and Dr. Selley acknowledged) that the dates beyond March 28, 2001, are not at issue in this proceeding. The record does not include any evidence relating to the dates of service after March 28, 2001. To summarize, the dates of service and amounts still in dispute in this proceeding are: Date Amount Billed Maximum Reimbursement Nov. 28, 2000 $ 82.00 $ 41.60 Dec. 14, 2000 $ 100.00 $ 41.60 Jan. 19, 2001 $ 82.00 $ 41.60 Jan. 23, 2001 $ 82.00 $ 41.60 Jan. 29, 2001 $ 82.00 $ 41.60 Feb. 2, 2001 $ 82.00 $ 41.60 Feb. 20, 2001 $ 82.00 $ 41.60 Feb. 27, 2001 $ 82.00 $ 41.60 Mar. 15, 2001 $ 82.00 $ 41.60 Mar. 28, 2001 $ 82.00 $ 41.60 $838.00 $416.00 49. The record does not include any evidence to explain why Petitioner disallowed payment for these dates, but not others during this same time period. Nor does the evidence explain why Petitioner agreed to pay for certain dates of service despite its affirmative determination that the services rendered were unreasonable and not medically necessary. Dr. Selley "Petitions" the Agency Under Section 440.13(7) Dr. Selley responded to the First Notice by letter dated March 16, 2001, and responded to the Second and Third Notices by letter dated April 3, 2001. Both letters were addressed to Petitioner. Copies of the letters were sent to Petitioner's attorney and the Agency. The March 16, 2001, letter was sent by certified mail to all of the recipients. The record does not reflect whether the April 3, 2001, letter was sent by certified mail. The March 16, 2001, letter included the office notes prepared by Dr. Selley relating to the treatment rendered on each occasion that he saw the Claimant between March 20, 1996, and February 27, 2001. The April 3, 2001, letter included copies of Dr. Selley's office notes through March 15, 2001, and also included copies of the HCFA forms and billing information related to the disputed dates of service. The Agency treated Dr. Selley's letters as "petitions" under Section 440.13(7), Florida Statutes. Petitioner sent several letters to the Agency in which it asserted that the "petitions" failed to meet the requirements of Section 440.13(7)(a), Florida Statutes, and therefore should be dismissed. The Agency did not formally respond to those letters, nor did the Agency notify Petitioner of its determination that Dr. Shelley's "petitions" were valid. After learning that the Agency had accepted Dr. Selley's "petitions" as valid and that it had referred them to EMAs for review, Petitioner sent the Agency a notebook containing the records of the chiropractors who treated the Claimant prior to Dr. Selley as well as the peer review reports obtained by Petitioner in the course of its utilization review. The Agency did not forward those materials to the EMAs. Referral to the EMAs When the Agency determines that a medical opinion is necessary to assist in resolving a reimbursement dispute, it initially refers the matter to two EMAs. If the opinions of those EMAs are inconsistent with each other, the Agency refers the matter to a third EMA who serves as a "tie-breaker." A third EMA was not used in this case. The Agency (through Donna Reynolds) determined that it was necessary to refer this matter to EMAs in order to assess the adequacy of Dr. Selley's records in light of Petitioner's claim of overutilization. Ms. Reynolds did not consider using a peer review committee because she considered this case to be a reimbursement dispute, albeit a reimbursement dispute involving a claim of overutilization. At the request of Ms. Reynolds, Agency employee Sharon Ringo searched the Agency's computer database of EMAs for chiropractors with similar specialties as Dr. Selley. Through that search, Ms. Ringo identified Paul Vogel, D.C., and Dr. Harris as potential EMAs. Ms. Reynolds contacted Dr. Vogel and Dr. Harris to determine whether they would be willing to serve as EMAs in this case. Dr. Vogel accepted, and on May 17, 2001, Ms. Reynolds forwarded him copies of the records submitted to the Agency by Dr. Selley as well as the stipulation approved by the JCC in 1991, a copy of Section 440.13, Florida Statutes, and a copy of the Agency's EMA rules. The materials provided to Dr. Vogel by the Agency did not include any records from the Claimant's prior chiropractors except Dr. Turner. Dr. Harris declined to serve as an EMA because of his prior review of Dr. Selley's records for Petitioner. Accordingly, Ms. Reynolds asked Ms. Ringo to search the Agency's computer database for another potential EMA. Through that search, Ms. Ringo identified Randolph Harding, D.C. Ms. Reynolds then contacted Dr. Harding to determine whether he would be willing to serve as an EMA in this case. Dr. Harding accepted, and on June 19, 2001, Ms. Reynolds forwarded him copies of the records submitted to the Agency by Dr. Selley as well as the stipulation approved by the JCC in 1991, a copy of Section 440.13, Florida Statutes, and a copy of the Agency's EMA rules. The materials provided to Dr. Harding by the Agency did not include any records from the Claimant's prior chiropractors except Dr. Turner. The Agency notified Petitioner of its selection of the EMAs on the same date that it sent the records to the EMAs. (The substance of the letters sent to Petitioner is more fully discussed below.) The letters sent to Dr. Vogel and Dr. Harding by the Agency explained the scope of their review as follows: The review of the Expert Medical Advisor should focus on answering the question of whether the treatment that was rendered by Dr. Selley to this injured worker is consistent with the accepted standard of medically necessary treatment and delivered in a manner that would be consistent with the Workers' Compensation Law. If the treatment is not judged to be consistent with the definition, the date after which treatment is not deemed to be medically necessary. [sic] Petitioner "Petitions" Agency Under Section 440.13(8) By letter dated June 18, 2001, Petitioner requested the Agency to "address a pattern and practice of overutilization" by Dr. Selley in connection with his treatment of the Claimant. The letter summarized the conclusions of the peer review reports obtained by Petitioner from Dr. Barringer, Dr. Harris, and Dr. Costello. The letter requested that the Agency "make a final determination in accordance with Section 440.13(8)(a), and requests penalties as provided by [Section] 440.13(8)(b), Florida Statutes." The letter was accompanied by the notebook referenced above which contained the records from the Claimant's prior chiropractors as well as the peer review reports prepared for Petitioner as part of its utilization review process. As noted above, the Agency did not forward this information to the EMAs. Dr. Selley responded by letter dated July 17, 2001. In that letter, he detailed his treatment of the Claimant and expressed a desire to file a complaint with the Agency against Petitioner based upon "the arbitrary and unreasonable manner in which the carrier has been acting." The record does not reflect what action, if any, the Division took on Petitioner's letter and Dr. Selley's response. The wording of the Agency's August 24, 2001, determination letter (set forth below) and the fact that the Agency did not forward the notebook provided by Petitioner to the EMAs suggests that the Agency resolved the Section 440.13(8) issue without the input of the EMAs. The EMAs' Reports Dr. Vogel submitted his report to the Agency on June 11, 2001 (25 days after he was sent the materials by the Agency). The report provides in pertinent part: A review of [Dr. Selley's] medical report and daily treatment (patient care notes) would indicate that he rendered treatment which was consistent with Florida Workers' Compensation Law. The services appeared to be documented by the data presented. The diagnosis appeared to conform to the back complaints presented and examination performed. His patient care notes are proper, utilizing the accepted S.O.A.P. procedure and further indicating that the patient previously received a PPI rating of 5% and additionally he was being treated PRN with no scheduled appointments. Accordingly, Dr. Vogel was of the opinion that "Dr. Selley rendered treatment within the parameters consistent with the Florida [Workers'] Compensation Law." Dr. Vogel reaffirmed his opinion through his testimony at the hearing. Also on June 11, 2001, Dr. Vogel submitted an "addendum" to his report to the Agency. The "addendum" was provided for "informational purposes only" and addresses issues well beyond the scope of this proceeding (e.g., the wisdom of Petitioner's decision to enter into the settlement in the first instance). Accordingly, no weight is given to the "addendum." At some point thereafter, Petitioner directly provided Dr. Vogel a more comprehensive set of the Claimant's medical records, including the clinical records from all of the Claimant's prior chiropractors as well as the peer review reports from Dr. Barringer, Dr. Harris, and Dr. Costello. Dr. Vogel testified at the hearing that those records did not change the opinion he provided in his June 11, 2001, report to the Agency. In his view, the Claimant's prior treatment history was not relevant; instead, the relevant consideration is simply whether the treatment rendered by Dr. Selley was appropriate to the complaint presented by the Claimant on each occasion. As discussed elsewhere in this Recommended Order, Dr. Vogel's view is both legally and factually too narrow and is therefore rejected. Dr. Harding submitted his report to the Agency on July 20, 2001 (32 days after he was sent the materials by the Agency). The report provides in pertinent part: The initial examination of 3/20/96 performed by Dr. Selley does not reflect any significant positive physical findings to suggest progressive injury or active disease process. Review of the daily clinical notes does not record any positive neurological findings to indicate sensory or motor loss or other physical findings to indicate progressive injury. The visit on 2/20/01 appears to be an exacerbation of increased severity, however no significant neurological findings are reported. The physical findings at the follow up visits are typical of previous visits. Typically this patient presented with findings of tightness and tenderness upon palpation of the lumbar spine. It is my opinion, based on the clinical records reviewed, this patient is no longer responding to chiropractic treatment. [The Claimant] has continued to treat approximately once a week for over 15 months and there is no significant change in the overall symptom pattern or subjective complaints. No significant objective findings are present to explain the patient's ongoing subjective complaints. Continued failure of this patient to respond to chiropractic treatment for exacerbation of his symptoms after 15 months of care should result in patient discharge and other forms of treatment or management should be considered. (emphasis supplied). Despite those comments, Dr. Harding's report concludes with the following opinion: [T]he care rendered through 3/28/01 was medically necessary . . . . The treatment rendered through 3/28/01 appears to be consistent with the accepted standard of medically necessary treatment and delivered in an appropriate manner consistent with Florida's Worker's Compensation Law. Treatment beyond 3/28/01, in my opinion, is not reasonable or medically necessary and is not consistent with the accepted standards. Dr. Harding reaffirmed his opinion through his testimony at the hearing. However, neither his report nor his testimony (nor the testimony of the other chiropractic experts) established a medical or chiropractic basis of the March 28, 2001, date he chose as the cut-off for medical necessity. Unlike Dr. Vogel, Dr. Harding conceded at the hearing that the Claimant's prior chiropractic treatment – both its type and its frequency -- is "significant" information which could have affected his opinion. The importance of reviewing the Claimant's complete treatment history in evaluating the disputed dates of service was reaffirmed through the testimony of Dr. Harris, Dr. Costello, Dr. Barringer, and Gene Jenkins, D.C. (from a chiropractic perspective), and by Mollie Frawley (from a utilization review perspective). Petitioner provided Dr. Harding the same set of records that it provided Dr. Vogel (and its expert witnesses), but Dr. Harding did not review those records in formulating his report. In light of Dr. Harding's concession about the potential significance of the Claimant's treatment history, his failure to consider those records undermines the credibility of the opinions expressed in his report and his testimony at the hearing. Neither the EMAs nor the Agency provided copies of the reports to Petitioner after their preparation. The record does not reflect how or when Petitioner received copies of the EMAs' reports. The EMAs did not collaborate with each other in their review of the Dr. Selley's records or the preparation of their reports. In this regard, the EMAs functioned differently than a "peer review committee" and (contrary to a legal argument made by Respondent at the outset of this proceeding) the Agency witnesses who testified at the hearing did not consider the EMAs to be such a committee. Peer review committees were used by the Agency prior to 1994 to resolve disputes involving medical necessity of treatment in the workers' compensation context. The committee consisted of three to five doctors with similar licenses and specialties as the doctor under review. The committee would hear cases and develop a consensus recommendation to the Agency based upon the discussion and debate amongst the members of the committee. This process allowed for resolution of divergent opinions of the reviewers and resulted in a uniform opinion and report upon which the Agency could act. The Agency, not the carrier, was responsible for the fees of the doctors who served on the peer review committee. Agency's Determination Letter After receiving the EMAs' reports, Ms. Reynolds reviewed them for consistency. She determined that they were consistent even though Dr. Harding identified a date after which continued treatment was not medically necessary and Dr. Vogel did not identify such a date. Thereafter, Ms. Reynolds prepared the Agency's determination letter based upon her synthesis of the EMAs' reports. The determination letter, dated August 24, 2001, provided in pertinent part: Based upon the review of the peer review opinions, the [Agency] finds that the documentation of care rendered by Dr. Selley for these cited dates and through March 28, 2001 was medically necessary and related to the workers' compensation accident of May 23, 1990. Therefore, the [Agency] has determined that there is not a pattern or practice of overutilization and finds that the insurer has disallowed payment improperly. The insurer shall reimburse Dr. Selley for the treatment previously cited as disallowed within thirty (30) days of receipt of this notification and shall report the date and amount of the payments made. Treatment beyond March 28, 2001, however, does not appear to be reasonable or medically necessary and is not consistent with the accepted standards as documentation supports that this patient is no longer responding to the chiropractic treatment offered. There is no significant change in the overall symptom pattern or subjective complaints. Additionally, there are no objective findings present to explain the patient's ongoing subjective complaints. Continued failure of the patient to respond to chiropractic treatment for exacerbations of his symptoms after 15 months of care should result in consideration of other forms of treatment or management. (emphasis supplied). The letter was sent by certified mail to Petitioner and Dr. Selley, and it was received by each of them on August 27, 2001. The August 24, 2001, letter included the notice required by Chapter 120, Florida Statutes, and the Uniform Rules Procedure that "a party substantially affected by this determination has a right to request a hearing." Payment of EMAs As noted above, the Agency informed Petitioner by letters dated May 17, 2001, and June 19, 2001, that it had referred Dr. Selley's "petitions" to Dr. Vogel and Dr. Harding, respectively, to "perform a peer record review" as EMAs pursuant to Section 440.13(9), Florida Statutes. The letters informed Petitioner that it would be required to pay the EMAs' fees. With respect to the timing of that payment, the letters stated: Upon receipt of the EMA invoices and copies of the reports, the carrier shall reimburse the EMAs within 45 days pursuant to rule 38F-54.008, Florida Administrative Code (F.A.C.). Reimbursement by the carrier for EMA services shall not exceed $200 per hour or a maximum reimbursement of $1600 per case. Pursuant to s. 440.13(9)(f), Florida Statutes (F.S.), the division may assess a penalty not to exceed $500.00 against any carrier that fails to timely compensate an EMA. No further action is required until you receive the division's final determination letter regarding the reimbursement dispute. (emphasis supplied). Thus, Petitioner's obligation to pay the EMAs' fees did not mature until the Agency issued its determination letter on August 24, 2001. The record does not include the EMAs' invoices, nor does it reflect whether Petitioner has paid the EMAs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that: Directs Petitioner to reimburse Dr. Selley for the January 19, 2001, and February 2, 2001, dates of service as it agreed to do in the first and second notices of disallowance; Denies Dr. Selley's "petitions" with respect to all of the other dates of service set forth in the notices of disallowance; and Directs Petitioner to reimburse the expert medical advisors in accordance with Section 440.13(9)(f), Florida Statutes, and the Agency's rules. DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 26th day of August, 2002.
The Issue The issue in this case is whether Respondent has violated the personnel policy established by Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Respondent was hired by Petitioner as a utility service worker. Currently, Respondent works on the “manhole truck” on the 7:00 a.m. to 3:30 p.m. shift. At some point in time, Respondent was given a copy of the employee handbook. The handbook is a summary of Petitioner’s human resources policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. The manual is available to all employees; both documents provide for the discipline of employees. The Human Resources Policy Manual states as follows: SECTION F-4 DISCIPLINARY OFFENSES * * * (33) Violation of ECUA Rules or Policies or State or Federal Law The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . ECUA has a policy that annual leave must be requested in advance and coordinated with an employee’s supervisor. The reason for the requirement is to ensure that a sufficient number of employees are present to perform necessary and ongoing maintenance repairs on ECUA’s sewage and water system. Such coordination is especially important during holiday time periods, such as Thanksgiving and Christmas. In particular, the utility wastewater service department requires employees seeking annual leave to put their request in the computer, fill out a leave request slip, discuss the request with the supervisor, and post the request on the board in the supervisor’s office. These requirements were verbally given to all wastewater utility employees by their supervisor Doug Gibson beginning about five years ago. Since that time, employees, including Respondent, were periodically reminded of these requirements during the time periods when many employees seek time off, such as major holidays and hunting season. Indeed, the evidence was clear that Respondent knew about these requirements since he had been personally counseled and/or reprimanded for not following them on April 26, 2010; May 12, 2010; June 25, 2010, and July 21, 2010. Around mid-November 2010, Mr. Gibson met with his employees, including Respondent, to remind them of the leave requirements and the necessity to schedule such leave in advance since many employees wanted the same time off during the upcoming holidays and hunting season. His goal was to develop a list of employees who wanted time off so that required utility work during that time period could be maintained. On November 17, 2010, Mr. Gibson again met with his employees, including Respondent, to advise them that this was the last chance to schedule annual leave during the holiday period and that no further leave would be granted unless there was an “extreme” emergency. At that time, Respondent did not request any time off. On November 22, 2010, Respondent worked his regular shift. He did not mention that he wanted to take November 23 off and did not fill out a leave request slip or follow any of the other procedures for such leave. In particular, he did not discuss such leave with his supervisor. On November 23, 2010, Respondent arrived at work before his supervisor and filled out a leave slip requesting annual leave for that day. Respondent intentionally dated the slip for November 22, 2010, to make it appear that he had filled it out the day before. He placed the slip in his supervisor’s box and left work. When his supervisor arrived at work, he found the leave slip and denied Respondent’s request for annual leave. On November 24, 2010, Respondent was questioned by his supervisor about the request. Respondent told his supervisor that he had a doctor’s appointment on November 23, 2010. Respondent did not indicate that the appointment was unanticipated or for an emergency. Respondent did indicate that he should have requested a different type of leave for the doctor’s appointment. Additionally, later in this disciplinary process, Respondent indicated the doctor’s appointment was not his, but was for his girlfriend who had some sort of dental problem on November 23. There was no evidence that the girlfriend’s dental problem was an emergency or one that she could not handle herself. In fact, the only evidence regarding a medical appointment attended by Respondent reflected an appointment after 3:00 p.m. on November 23rd, close to the end of Respondent’s regular shift. Such evidence indicates that Respondent did not have a medical emergency on November 23rd. Additionally, Respondent’s basis for missing work is not credible, given Respondent’s changing story about his absence from work on November 23 and/or whether such absence was due to an emergency medical issue for either himself or his girlfriend. On November 30, 2010, Respondent again did not follow ECUA policy for requesting leave. On that day, Respondent left a leave slip in his supervisor’s box asking for one hour of leave at the end of his shift. He did not discuss the leave with his supervisor. Respondent returned to the ECUA office about an hour before the end of his shift because he thought it was not a problem to ask for time off without following procedure. Respondent’s supervisor advised him his request was denied and instructed Respondent to “get back on the truck” and finish his shift.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utilities Authority find that Respondent violated its human resources policy F-4(33), and impose such discipline on Respondent as determined appropriate under the provisions of the Human Resources Policy Manual. DONE AND ENTERED this 22nd day of April, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 2011. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Willie Leigh 2101 Scenic Highway, Apartment C108 Pensacola, Florida 32503 Richard C. Anderson, Director Human Resources and Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
Findings Of Fact Briccio Dizon Valdez, M.D., (Petitioner) is an applicant for licensure as a medical doctor by examination. The Department of Professional and Business Regulation, Board of Medicine, (Board) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. In 1977, the Petitioner became licensed to practice medicine by the State of Florida. On or about September 25, 1984, the Petitioner entered a plea of nolo contendere to a charge of witness tampering in medical malpractice litigation in which the Petitioner was a party. Adjudication was withheld. The Petitioner was placed on two years probation, fined $1,000 and ordered to perform 250 hours of community service. By Final Order filed June 25, 1985, the Petitioner's Florida license to practice medicine was suspended for a period of three years for sexual misconduct with a patient under his care. By Final Order filed February 27, 1987, the Petitioner's Florida license to practice medicine was suspended for a period of 44 days to run concurrently with the existing suspension. The additional suspension was based on the fact that the Petitioner continued to practice during the appeal of the sexual misconduct suspension, incorrectly believing that his appeal stayed the suspension. On or about August 27, 1987, the Petitioner entered a plea of guilty to a charge of engaging in the sale of encyclopedias without an occupational license. Adjudication was withheld. The Petitioner was placed on probation for a period of one year. By Final Order filed October 24, 1988, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. The case was based on an account by an investigator posing as a patient who allegedly received psychiatric services from the Petitioner during his period of suspension. By Final Order filed November 9, 1989, the Petitioner's Georgia license to practice medicine was revoked based on the revocation of his Florida license. In February 1990, the Petitioner submitted a Florida application for medical licensure. By Final Order filed February 8, 1991, the application was denied by the Board. In October 1991, the Petitioner again submitted a Florida application for medical licensure. In May 1992, the Board Credential's Committee reviewed the licensure application of the Petitioner. The Petitioner appeared before the committee, as did Dr. Ernest Miller, who had performed a psychiatric evaluation of the Petitioner. On June 6, 1992, the Board of Medicine reviewed and denied the Petitioner's application. This is the denial at issue in this proceeding. By Order filed August 5, 1992, the Board denied the Petitioner's application for licensure by examination. The letter of denial provides as follows: The Board of Medicine reviewed and considered your application for licensure by examination on June 6, 1992, in Tampa, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: that you have previously had your medical licensure in Florida and Georgia revoked. Prior to revocation, your Florida license was acted against because of sexual misconduct. You have not provided any evidence of rehabilitation since having your licenses revoked. You have not been in medical practice since 1985. You provided false statements in an affidavit accompanying your licensure application and you were lacking in candor in the testimony you provided to the Board's Credentials Committee. The following findings specifically address each of the identified grounds for the Board's denial of the application: PREVIOUS REVOCATION OF LICENSURE IN FLORIDA AND GEORGIA As set forth herein, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. Based on the Florida proceedings, the State of Georgia first suspended and then revoked the Petitioner's Georgia license. The Final Order revoking the Petitioner's license does not prohibit him from applying for re-licensure. DISCIPLINE OF FLORIDA LICENSE PRIOR TO REVOCATION BASED ON SEXUAL MISCONDUCT The evidence establishes that prior to the revocation of his Florida license, the Petitioner's license has been suspended for sexual misconduct. The period of suspension has been served. The order of suspension does not prohibit the Petitioner from applying for re-licensure. LACK OF EVIDENCE OF REHABILITATION SINCE LICENSE REVOCATION There is no evidence that the Board has directed the Petitioner to undertake any defined program of rehabilitation. There is no evidence that the Board directed the Petitioner to undergo psychiatric evaluation. The Petitioner has sought such evaluation on his own initiative. On several occasions between November 1991 and December 1993, the Petitioner was examined by expert psychiatrist Dr. Ernest Miller. Dr. Miller has been professionally familiar with the Petitioner for approximately eleven years. According to the testimony of Dr. Miller, the Petitioner demonstrates no dysfunction or disorder which would prevent him from adequately practicing psychiatry at this time. There is no cause to believe that the events which led to the Petitioner's suspension and revocation will be repeated. Dr. Miller attended the May 26, 1992 meeting of the Board's Credentials Committee and was prepared to speak on his behalf. Although the evidence is unclear as to whether Dr. Miller was provided the opportunity to speak to the committee during the May 26 meeting, Dr. Miller provided to the Board a written record of the evaluation and his findings prior to the meeting. The greater weight of the evidence establishes that there is no "lack of evidence of rehabilitation since license revocation." There is no evidence that the Petitioner manifests dysfunction or disorder which would prevent him from adequately practicing psychiatry. OUT OF MEDICAL PRACTICE SINCE 1985 Other than as set forth herein, the Petitioner has been out of medical practice since 1985, at the approximately time of the license suspension. He has remained active as a mental health counselor since 1989. There is no credible evidence which would establish that the passage of time since the Petitioner actively practiced is sufficient to deny an application for licensure by examination. FALSE STATEMENTS IN AN AFFIDAVIT ACCOMPANYING THE LICENSURE APPLICATION The letter of denial fails to specifically identify which statements the Board considered to be false. Based on the evidence offered at hearing, it appears that the allegedly false statements are in relation to the Petitioner's performance on the "FLEX" exam. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in his initial application for licensure in April 1977 asserts that he has never failed the FLEX examination. At the time the Petitioner submitted the 1977 application, he had failed the Flex exam in both North Carolina and Georgia. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in the October 1991 application asserts that he has taken the FLEX exams in the State of Georgia and passed on his second attempt. In a sworn affidavit dated January 28, 1992 and forwarded to the Board, the Petitioner states that he took and passed the FLEX exam in 1978 on his second attempt in Georgia. At the hearing, the Petitioner testified that he had taken the FLEX exam in June 1977 and December 1977, both times in Georgia. At the Board's request, the Petitioner authorized the Federation of State Medical Boards to furnish the Petitioner's "Examination and Board Action History Report" to the Board. The report identifies the dates upon which the Petitioner has submitted to the Federation Licensing Exam (FLEX) and the results of those tests. Florida law provides that the FLEX exam must be passed by an applicant prior to licensure. According to the report, the Petitioner has taken the Flex exam on four occasions prior to January 31, 1992. In June 1976, the Petitioner took and failed the FLEX examination in North Carolina. At no time has the Petitioner disclosed that he had taken and failed the FLEX exam in North Carolina. The Petitioner has taken the FLEX examination three times in Georgia. He failed the examination on attempts made in December 1976 and June 1977. He passed the Flex exam in Georgia in December 1977. The Petitioner has disclosed only that he had twice taken the exam in Georgia and has asserted that he passed the exam on his second attempt. The Petitioner suggested at hearing that he was confused by the dates of examination and asserted that he had not intended to misrepresent the facts. The assertion is not credible. The evidence establishes that the Petitioner has submitted false statements in the affidavit accompanying his 1991 licensure application. The evidence further establishes that the Petitioner has submitted false statements regarding his experience with the FLEX examination since the time of his initial application for licensure by the State of Florida. LACK OF CANDOR IN THE TESTIMONY PROVIDED TO THE BOARD'S CREDENTIALS COMMITTEE No transcript of the proceedings before the Board's Credentials Committee was offered or admitted into evidence at the hearing. There is no evidence to support the Board's position that the Petitioner demonstrated a lack of candor in the testimony provided to the committee.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order denying the application of Briccio Dizon Valdez for medical licensure by examination. DONE and RECOMMENDED this 25th day of April, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5581 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected, irrelevant. 11. Rejected, irrelevant. 14. Rejected, argumentative, not supported by the greater weight of the evidence. The cited Georgia Final Order does not state that the Georgia license is subject to restoration upon reinstatement of the Florida license. The Georgia order provides that upon revocation, the license "shall not be subject to restoration." The order also provides that should the Respondent wish to return to medical practice in Georgia, the Georgia board may impose such conditions or restrictions as are deemed necessary for the protection of the public. 25-28. Rejected, irrelevant. 30. Rejected, conclusion of law. 31-33. Rejected, irrelevant, not at issue in this proceeding. 36. Rejected, conclusion of law. 37-39. Rejected, irrelevant, not at issue in this proceeding. 40. Rejected, irrelevant. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, unnecessary. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Paul Watson Lambert, Esquire Michael I Schwartz, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires, Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050
