The Issue The issue to be determined is whether Respondent has violated sections 456.072(1)(hh) and 458.331(1)(s), Florida Statutes (2009), and if so, what sanction should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 73326. Respondent's address of record is Post Office Box 18977, Panama City Beach, Florida 32417. His medical practice is radiology. Professionals Resource Network, Inc. ("PRN"), is an impaired practitioner's program authorized pursuant to chapter 456, which monitors the evaluation, care, and treatment of impaired healthcare professionals. Among those functions performed by PRN or as part of its program are random drug and alcohol screens, and the exchange of information between treatment providers and the Department for the protection of the public. PRN also arranges for evaluations of professionals to determine whether any impairment a professional may have, whether attributed to use of drugs or alcohol, or physical or mental illness, presents a danger to the health, safety, and welfare of the public should the professional continue to practice his or her profession. July Rivenbark, M.D., is a board-certified psychiatrist and addictionologist, and is the current medical director of PRN responsible for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. During at least part of the time relevant to these proceedings, Dr. Rivenbark was the assistant medical director and Dr. Raymond Pomm, M.D., was the director. Dr. Natalie Sohn was, during approximately 2005-2007, Respondent's girlfriend, with whom he shared a home. On or about December 6, 2006, Respondent and Dr. Sohn were involved in an incident involving domestic violence. During the incident, Respondent twisted Dr. Sohn's arm and pulled her hair, causing her scalp to bleed. Dr. Sohn testified that Respondent had consumed 3-4 drinks of cranberry and vodka prior to the incident and was under the influence of alcohol. When asked about the incident, Respondent indicated that his hand got caught in Dr. Sohn's hair, and he "accidently" tore a piece of her scalp. Although Dr. Sohn "dropped the charges", the State Attorney did not. As a result, Respondent entered what he referred to as a "pass and plea" agreement in February 2007, requiring "small counseling sessions." Respondent completed a court-mandated batterers intervention program for which a discharge summary by Dr. Connie Ingraham was issued on or about May 3, 2007. Shortly after the completion of the batterer's intervention program, Respondent was involved in a second domestic violence incident. On May 11, 2007, police were called to Respondent and Dr. Sohn's residence for a second time. Respondent states that Dr. Sohn "fell." The police report, however, states that her elbow was bruised and bleeding slightly, and that she also had slight swelling in her lower back area.1/ More importantly, however, for the purposes of this proceeding, is the statement by the arresting officer: It should be noted while talking with Mishlove, he appeared to be slightly intoxicated and at times appeared not to understand what I was saying either from the use of alcohol or drugs. While I was completing the paperwork in my vehicle for Mishlove, he began to cry at times and he seemed to be very upset. Dr. Sohn testified in her deposition that during the time she shared a home with Respondent, he often drank alcohol, and also used cocaine. She also reported that toward the end of their personal relationship, she and Respondent were asked to leave a cruise ship while docked in Copenhagen because of Respondent's actions after drinking. Dr. Sohn's testimony is credited. From August 2006 through August 2007, Respondent was employed by Imaging Consultants of South Florida ("ICSF").2/ At that time, Dr. Carl Rosencrantz was the managing partner of the office group. While Respondent was employed by ICSF, St. Mary's Hospital performed a background check in connection with reappointment of his staff privileges. Staff at St. Mary's called Dr. Rosencrantz, because their background check revealed the two domestic violence incidents described above. While Dr. Rosencrantz initially thought the problem was an interpersonal issue, he soon believed that alcohol was involved. Dr. Rosencrantz spoke to Respondent about the reports, and asked him to contact PRN for treatment. Respondent denied he had an alcohol problem and refused to contact PRN. As a result of his concerns, Rosencrantz ultimately terminated Respondent's employment with ICSF. On or about August 27, 2007, Dr. Rosencrantz referred Respondent to PRN, citing the two episodes of domestic violence. His referral states that there had been an incident where Respondent did not call in and missed work for five days, the lab techs at St. Mary's Hospital are afraid of him, and that "there appears to be some underlying anger issues along [with] the use (excessive) use of alcohol." Also received by PRN was an e-mail from Steve Robertson, M.D., another doctor with the same group, dated August 31, 2007. The e-mail stated that Respondent was suspended from the group after showing up intoxicated at Good Samaritan Hospital the day before. Dr. Robertson's e-mail to PRN stated: fter being confronted by the chief radiologist at that hospital yesterday, he made implied threats against the radiologist and his family and had to be escorted by security out of the hospital. Today he attempted to show up for work at St. Mary's Hospital as per original schedule despite being told that he was on indefinite suspension and appeared again to be intoxicated as per staff at that hospital and was again escorted out of the facility by security. . . . Dr. Robertson testified in his deposition that he was present when Dr. Mishlove appeared for work at Good Samaritan Hospital, and that he was not focusing, "smelled like a bar," had an unstable gait and could not sit still. Dr. Robertson stated, Respondent was "definitely not the sort of person that really could sit down and perform their duties as a radiologist and focus on critical patient needs." On August 30, 2007, Dr. Sohn also referred Respondent to PRN, stating that his drinking was out of control. This same day, Respondent had an encounter with the police at the Breakers Hotel in Palm Beach. The police report states in pertinent part: On 8/30/07, at approximately 1700 hours, I responded to 1 South County Road, Breakers Hotel, in reference to an unwanted guest. . . . We made contact and identified him as Lawrence Mishlove w/m 10/1/62. I asked Mishlove what was going on and he said he did not know. I immediately could tell Mishlove was intoxicated due to his demeanor, the smell of alcoholic beverage on his breathe [sic], and his slurred speech. Mishlove was also staggering around with a food substance on his face and his pants not zipped up. I informed Mishlove of the trespass issue with the hotel and made sure he understood. Mishlove agreed that he understood and Ofc. Madden made arrangements for a cab ride. Mishlove said he did not need a cab and was going to drive himself home. I informed him that he was not driving due to his intoxication and reminded him of the cab. At this point, Mishlove began to get irritated and began demanding my name and badge number. I complied by offering a business card with my badge number on it numerous times. Mishlove would not take the business card, but still demanded the information. He then began to state to Ofc. Madden and I that he better not ever see us in his emergency room. Mishlove was stating this in a manner and tone implying we would not receive medical attention if we were in need. Based on the referrals from Respondent's employer and Dr. Sohn, Debra Troupe from PRN attempted to call Respondent on September 5, 2007. However, he did not speak to her. On September 6, 2007, Dr. Pomm wrote to Dr. Mishlove, notifying him that PRN had received information that he may be experiencing difficulty affecting his ability to practice with reasonable skill and safety, and encouraging him to contact Debra Troupe within three days. Dr. Pomm advised that "failure to do so will require my referral of the information received to the Department for appropriate investigation." Respondent signed for the letter on September 19, 2007. In the meantime, however, Dr. Mishlove was arrested for DUI in Palm Beach, Florida, on September 7, 2007. The police incident report states in pertinent part: When I approached the car, I knocked on the glass so the driver would open the door. As soon as the door was opened, I was overwhelmed by the odor of an unknown alcoholic beverage. The driver had heavy bloodshot eyes. I asked the driver to exit the car which he did, however, while standing he had to lean against the car for support. The driver, [was] later identified as Lawrence A. Mishlove, white male, dob/100162, by his Florida d/l. . . . I had to ask Mishlove several times to walk to the rear of the car. He appeared unsteady on his feet and seemed to need to lean on the car for stability. I had to ask him several times for his FL d/l before he would produce it. His speech was slow and slurred when he spoke. Officer Anderson and Riley arrived as back up. . . . . I asked Mishlove to submit to roadside sobriety tasks. He refused. Officer Anderson advised him that failure to submit to roadside tasks could be used against him in court. He refused again. Based on the evidence prior to the refusal, I placed Mishlove under arrest for DUI. While I was attempting to handcuff Mishlove, he began to yell that I was hurting him. Whenever I touched him, he would scream and yell. He was placed into the rear passenger side seat and belted in. . . . While I was traveling to the PBSO Jail, Mishlove threatened me on several occasions. He said he was a surgeon. He told me if I ever ended up on his operating table, that he would see to it I was through. He also said if I had a wife and kids, he would make sure they were through also. He also continually threatened to have me fired. . . . Mishlove refused to give his name or any other info. He refused to give a breath sample. I read implied consent and he refused again. I read his constitutional warnings and he asked for his attorney. I stopped questioning him at this time. I put Mishlove into a cell while I finished my paperwork. After I finished my paperwork, I had Mishlove exit the cell and sit. He began telling everybody in the room that I was gay. He accused me of hitting him repeatedly. He refused to sign the citations for DUI and failure to maintain a single lane. I charged with failure to sign a citation. I packaged up Mishlove's property which included $1160.25 in cash. I removed his belt. I placed him back into handcuffs and told him to hold onto the rear of his pants. While walking to intake, he let his pants go and they dropped. PBSO Intake deputies assisted Mishlove to intake. Whenever a deputy would touch Mishlove, he would yell that he was being hurt. " On September 25, 2007, Dr. Pomm notified Respondent by certified mail that his case had been referred to the Department of Health. On or about October 17, 2007, Respondent finally called PRN and agreed to be evaluated. He reported that he was suspended at DelRay Hospital and had some problems at Good Samaritan, but denied that there was any basis for the "fabricated" allegations against him. On October 29, 2007, Respondent was evaluated by Dr. Jason Jerry, M.D., a board certified psychiatrist and addictionologist. Dr. Jerry's psychiatric assessment was completed December 5, 2007. Dr. Jerry reviewed materials supplied by PRN and interviewed Respondent. During the evaluation and at hearing, Respondent claimed that he rarely drank alcohol and never used illicit drugs. He stated that his use of alcohol was limited to one or two drinks of wine or beer a month. With respect to absences from work, he claimed to be absent due to a virus. With respect to past psychiatric history, the report indicates that Respondent was Baker Acted in 2002 by the Chief of Staff at the hospital where he worked, and stayed in a psychiatric facility for one week. Respondent claimed the involuntary commitment was initiated after a contract dispute. Dr. Jerry's report indicated that Respondent was also evaluated by a psychiatrist in connection with a child custody hearing. In terms of his mental status evaluation, Dr. Jerry reported that Dr. Mishlove arrived fifteen minutes late for his scheduled evaluation, and that, during the process of being checked in, got up from his chair and closed and locked the door, and expressed concern regarding the confidential nature of the evaluation. He was dismissive of all of the allegations against him and was reluctant to give consent to allow access to any prior records or treatment providers.3/ The Axis I diagnosis identified by Dr. Jerry was to rule out alcohol abuse (DSM IV 305.00) and rule out alcohol dependence (DSM IV 303.90). With respect to Axis II, he listed rule out Narcissistic Personality Disorder. All three diagnoses are recognized in the Diagnostic and Statistical Manual IV. In his recommendations, Dr. Jerry stated: It is the opinion of the undersigned that Dr. Mishlove's aberrant behavior over the preceding 12 months calls into question his ability to practice medicine with reasonable skill and safety. Until the etiology of such behavior can be clarified, it is recommended that he should only be allowed to return to practice under the close supervision of The Florida Professionals Resource Network (PRN). Furthermore, a protracted urine monitoring program (perhaps two years) that includes ethyl-glucuronide (EtG) may help corroborate or refute Dr. Mishlove's claim that he rarely consumes alcohol. Since the patient's reported alcohol consumption, roughly two drinks per month, should not be enough to trigger urine EtG, any such result would merit immediate re-evaluation of this individual's fitness to practice medicine. On January 11, 2008, Respondent signed a two-year Substance Abuse Monitoring Contract with PRN. The contract included random urine drug screens and weekly facilitated groups. The group sessions were required to assess and observe Respondent's mental and physical condition. Random urine screens were required to detect drugs or alcohol excreted through the urinary system. The contract signed by Respondent contained, among others, the following provisions: I agree to participate in a random urine, drug, hair testing and/or blood screen program through FirstLab/U.S. Drug Testing Laboratories within twelve hours of notification. I will release by waiver of confidentiality the written results of all such screens to the Professionals Resource Network to validate my continuing progress. I agree to abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medications unless ordered by my primary physician, and when appropriate, in consultation with the Professionals Resource Network, I agree to send copies of all prescriptions to the Professionals Resource Network for my file. * * * Lewis Hoechstetter, Ph.D., LHC, CAP, CAS, SAP has been selected as my monitoring professional located [insert address] and telephone number]. I will attend a weekly PRN monitored professional group with Dr. Lewis Hoechstetter.[4] I agree to notify the Professional Resources Network of any changes in physical or mental health, address or employment. * * * I agree to notify the [PRN] in the event of use of mood altering substances without a prescription from one of the physicians above. I agree to provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and be in compliance with the above requests. * * * 12. I agree to return messages left by the PRN staff within 24 hours. My case manager is Debra Troupe. * * * 15. If I fail to comply with this contract, it may result in my being reported to DOH through the PRN and/or withdrawal of advocacy with appropriate agencies. * * * 17. I will complete psychological testing within ninety (90) days. The contract also includes an Authorization and Consent to Release Confidential Information, which in turn includes the following: I, Lawrence Mishlove, M.D., pursuant to 42 CFR Section 2.31 (1999), hereby authorize the Professionals Resource Network to disclose any records maintained by the [PRN] in regards to my treatment and/or participation in the program to the Department of Health for any purpose permitted by law including but not limited to potential disciplinary action against my professional license. This information may include, but not be limited to, medical information, psychiatric, psychological, and drug and/or alcohol treatment records as well as information regarding my participation in the [PRN] program. I hereby release the [PRN] from all legal liability that may arise from the release of said information. * * * I understand and specifically consent that, regardless of any subsequent revocation of this consent, any information that has been forwarded from the [PRN] to the Department of Health or their designee in reliance upon this consent may be used by the Department of Health or their designee for any purpose permitted by law, including, but not limited to, potential disciplinary action against my professional license and I understand and specifically consent that information contained in my records may become public as a result of said investigation and action. Respondent initialed each term of the monitoring contract and indicated that he understood the contract requirements. Despite his agreement to be monitored by PRN and to attend weekly sessions, his actual attendance and his submission to random testing was sporadic at best. For example, by July 10, 2008, Respondent had been to only one group session in the previous quarter. As a PRN participant, Respondent was assigned a color for the purpose of random urine screens. Every weekday (Monday through Friday), Respondent was expected to call a number provided by PRN to see if his color had been chosen for screening. If his color came up, Respondent had twelve hours to present himself to a designated lab to provide a urine sample. Respondent was set up to test once weekly. The paperwork for his testing was completed and he was scheduled to begin testing on Friday, February 22, 2008. PRN only received results of the test if they were positive. Negative tests were not retained. If a participant was out of town and unable to test, then the participant was required to submit evidence of his or her travels, such as a plane itinerary or ticket. During the period from March 17, 2008, through January 3, 2009, Respondent traveled extensively during the week, making him unavailable for testing. Specifically, the record reveals that Respondent traveled during this time as follows: On March 17, 2008, Respondent called and stated he was in California and would return on March 22, 2008. An airline itinerary leaving West Palm Beach and arriving in Los Angeles on March 16 and returning on March 22 was provided. On March 24, 2008, Respondent provided an airline itinerary indicating that he left West Palm Beach on Sunday, March 23, 2008, to travel to Lake Charles, Louisiana, and would return to West Palm Beach on Friday, March 28, 2008. Respondent apparently did not contact his group facilitator in advance, because on March 24, 2008, Dr. Hoeschstetter called to report that Respondent had not been in group for the last two weeks. On Monday, April 7, 2008, Respondent called and left a message that he would be in Oxnard, California, all week. On April 10, 2008, Respondent provided an airline itinerary for departure from West Palm Beach on Sunday, April 6, 2008, to Los Angeles, and return to West Palm Beach on Saturday, April 12, 2008. On Monday, April 14, 2008, Respondent provided an airline itinerary for departure from West Palm Beach to Lake Charles on Sunday, April 13, 2008, with a return trip Friday, April 25, 2008. Respondent was apparently called for a random screening on April 14, and he left a message with PRN that he would continue to call First Lab and send proof of travel. On Sunday, April 27, 2008, Respondent left a voice mail that he would be in California through May 3, 2008. The next day he supplied an airline itinerary with departure on April 27, 2008, from West Palm Beach to Los Angeles with a return trip Friday, May 2, 2009. On Sunday, May 4, 2008, Respondent left a voice mail that he would be in California until May 10. He left his voice mail with a staff member at PRN who tracks urine screening. On Monday, May 5, 2008, Respondent provided an airline itinerary with departure on May 4, 2008, for West Palm Beach to Los Angeles with return on Saturday, May 10, 2008. On Sunday, May 18, 2008, Respondent called PRN and said he would be in Lafayette, Louisiana, from May 19 through May 30, 2008. The next day, Respondent provided an airline itinerary with departure from West Palm Beach on May 18 to Lafayette, Louisiana, with return flight on Friday, May 30, 2008. On Sunday, June 1, 2008, Respondent called PRN and said he would be in Louisiana from June 1 through June 6, 2008. On June 4, 2008, he provided a travel itinerary for a departure from West Palm Beach to Lafayette on June 1, 2008. On June 8, 2008, he called and said he would be on vacation another week, from Monday, June 9, 2008, through June 15, 2008. On June 15, 2008, he called again and stated that he would be in Louisiana through Saturday, June 21, 2008. On Tuesday, June 24, 2008, Respondent called to say he was in Europe and was unable to call in to First Lab. Respondent indicated that he would return to Louisiana on Sunday, June 29, 2008. No travel itinerary was submitted at this time. On Tuesday, July 1, 2008, Respondent called and said he had returned from France and was in Louisiana, and would not return to Florida until Friday, July 18, 2009. Respondent indicated that he was selected to test and is not usually selected when he is out of town. That same day, he provided an airline itinerary that indicated he departed from Lafayette, Louisiana, and traveled to Nice on June 20-21, 2008, and returned on June 29, 2008. The quarterly monitoring report submitted by Dr. Hoechstetter on July 6, 2008, states that "Larry has been in maybe 1 group this quarter -- PRN is aware." On Sunday, July 20, 2008, Respondent left a voice mail at PRN stating that he was leaving for Louisiana that day and would be there until Saturday, July 26, 2008. On the following day, he provided an airline itinerary for departure from Lafayette on Friday, July 18, 2008, to West Palm Beach, with return trip to Lafayette on July 20, 2008. There is also a progress note in PRN's records indicating that the test scheduled for that day would be rescheduled to the next month. On Wednesday, August 13, 2008, Respondent called to say he had been selected for testing but was still in Louisiana. Progress notes for PRN indicate that they were trying to set up a site in Louisiana so he would not miss any more tests, and would reschedule the test scheduled for that day. On Wednesday, August 20, 2008, Respondent called PRN and confirmed the site to use in Louisiana. On Monday, September 1; Sunday, September 28; Monday, October 6; Monday, October 13; and Monday, October 20, 2008, Respondent called PRN to say he was still in Louisiana. In several of these calls he indicated that he would call his group facilitator, Dr. Hoechstetter. On October 23, 2008, Dr. Hoechstetter called inquiring what he should do about Respondent's absences, as he had only been to group sessions twice when he first started. On Tuesday, November 4, 2008, Respondent provided an itinerary with departure from Lafayette, Louisiana, on Thursday, October 30, 2008, to Chicago, with a return trip on Sunday, November 2, 2008. Respondent was scheduled to test on November 18, 2008, and did not do so. PRN staff called him on December 16, 2008, and he indicated that he had just gotten out of the hospital at the time of the test. No prior notification of the hospitalization had been provided. On Monday, December 29, 2008, Respondent left a voice mail for PRN staff that he was in California that week, looking for a job. On January 5, 2009, Respondent provided an airline ticket departing from Lafayette, Louisiana, on December 28, 2008, to Fresno, California, with a return flight on Saturday, January 3, 2009. On January 5, 2009, he called and left a voice mail that he was still in Louisiana but had no job. Respondent conceded in his deposition that he missed monitoring sessions and urine drug screens when he was out of town. Debra Troupe, Respondent's case manager, testified that from March 17, 2008, through January 3, 2009, Respondent was only in town for approximately two weeks. From some time in May 2008, through some time in November 2008, Respondent worked as Director of Radiology at Southwest Medical Center in Lafayette, Louisiana. Although working in Louisiana is consistent with the proof of travel he provided, he never notified his case manager at PRN that he was working in Louisiana, and several of the voice mails he left at PRN indicated that he did not have a job during this time. On August 8, 2008, Respondent submitted a urine sample that returned results including a low creatinine level of 16.8 mg/dL. The PRN cut-off for creatinine is 20 mg/dL, and anything under that level is considered to be diluted. The level of creatinine is significant because a low level can indicate that someone is trying to flush the evidence of a prohibited substance, such as alcohol, out of his or her system. While Respondent’s creatinine level for this test was considered low, the result could be because of overhydration, or simply drinking too much water, as opposed to purposefully diluting. Debra Troupe, Respondent's compliance manager, reviewed the results and noted them, but took no action based upon this single result. On November 25, 2008, Respondent submitted to a random urine test. The lab report, which was completed December 5, 2008, indicated a positive result for Phenobarbital. The confirmation cutoff for Phenobarbital is 150 ng/mL. Respondent's results indicated 884 ng/mL. As noted in paragraph 32(r), Respondent was supposed to, but did not test on November 18, 2008, the week before the positive Phenobarbital test. PRN staff called Respondent on December 16, 2008, at which time he stated that he had just gotten out of the hospital at the time of the missed test. On December 16, 2008, PRN received a letter from a David Dawes, M.D., of the Neuropsychiatric Clinic of Acadiana, LLC., located in Lafayette, Louisiana. Dr. Dawes' letter stated in its entirety: "To Whom it May Concern: Lawrence Mishlove was hospitalized at Lafayette General Medical Center from 11-13-08 until 11-17-08. On 11-13-08 he received a one-time dose of Phenobarbital 260mgIV." No diagnosis or explanation of why the Phenobarbital was given was provided. Respondent later claimed that the drug was administered for an extreme panic attack occurring in California (as opposed to Louisiana). However, persuasive evidence was presented that Phenobarbital is not usually prescribed for treatment of panic attacks. It is usually used for seizure disorders and for alcohol detoxification to prevent seizures and DTs, and the amount given is consistent with the dosage given to a person experiencing alcohol withdrawal. It is also significant, and a violation of Respondent's PRN contract, that no notification of his hospitalization or the administration of Phenobarbital was provided by Respondent until the positive result was reported from his drug test. On February 5, 2009, Respondent called saying he was scheduled to test but was now back in Panama City, Florida, and had called First Lab to see where he was to submit to testing. This call was the first time that Respondent had notified PRN that he was back in Florida. On Tuesday, February 17, 2009, Respondent called PRN to say he was still in Panama City and not working. On April 1, 2009, Dr. Hoechstetter filed a PRN Mental Health Compliance Update, indicating that Respondent was calling in weekly as opposed to attending group sessions. His Update also indicated that Respondent had relocated to California. A review of PRN's records in Petitioner's Exhibit A did not reveal any direct notification from Respondent that he had relocated to California. On April 2, 2009, Respondent provided a hotel bill from Arizona as proof of travel. The bill had a note on it requesting that PRN reschedule testing because Respondent was traveling to California. On April 3, 2009, Respondent reported that he found a position at Kaweah Delta Hospital ("Kaweah") in Visalia, California, and would start working April 13, 2009, as a radiologist. He also reported that he would be in Lafayette, Louisiana, the following week, and that the head of the well- being committee at Kaweah was Ron Marcorn. Respondent also reported that he missed calling in for testing by "one minute," due to the time difference. At this point, he had missed calling in on three different occasions. In April 2009, PRN changed third party administrators for its drug testing program. While the lab used by both providers was Labcorp, the third party administrator changed to Affinity. Respondent was told he must immediately contact Affinity to enroll for the urine drug screening system. Respondent requested a second information packet, claiming that he lost the first one. A second packet was mailed to him April 30, 2009, but Respondent did not enroll. After May 2009, PRN could no longer order tests for Respondent because, although notified, he had not enrolled with Affinity as requested. On May 5, 2009, PRN received a letter from Thomas Gray, M.D., the Chief of Staff for Kaweah. The letter stated: To Whom It May Concern: Dr. Mishlove was appointed to the Medical Staff of this facility as of March 19, 2009 with radiology privileges. On May 5, 2009, the Medical Staff learned that Dr. Mishlove's practice group terminated his contract because he had missed assigned work shifts. It was also reported that his missing work was related to suspected alcohol abuse. Due to the termination of his contract, his Medical Staff status was terminated effective May 5, 2009. Respondent admitted in deposition that he worked only two weeks before being terminated by Kaweah. On May 12, 2009, PRN staff called Respondent, but was unable to leave a message because his voice mail was full. On May 13, 2009, Dr. Pomm sent Respondent a certified letter notifying him that his case was being prepared for referral to the Department of Health because of his unwillingness to comply with the requirements and recommendations of the PRN program. The letter directed him to schedule an evaluation by June 1, 2009, in order to avoid referral. On June 8, 2009, Respondent reported for an evaluation by Dr. Michael Sucher, M.D., of California Physicians Health Program. Dr. Sucher asked that Respondent submit to urine and hair tests within a week of the evaluation. The urine sample was not submitted until June 22, 2009, and the hair sample was not supplied until September 28, 2009, well after Dr. Sucher submitted his report on August 31, 2009. The delay of a urine screen allows time to dilute the evidence of a drug from a person's system. Alcohol can remain in urine for approximately six hours, and alcohol metabolites can be detected for three to five days. Respondent delayed submitting a urine sample for approximately two weeks. Testing from a hair sample can detect a substance for approximately three months and is most effective for detecting consistent use of a substance. Respondent delayed submitting a hair sample for three and a half months. Dr. Sucher evaluated Respondent for fitness and safety to practice medicine, and reviewed the materials provided to him by PRN. He provided an extensive report of his evaluation and Respondent's statements that were in conflict with documentation previously reviewed. His report stated in part: I am faced with much the same situation as Dr. Jerry in 2007. The history provided directly by Dr. Mishlove does not appear to indicate an alcohol use disorder or other substance use disorder. However the information contained in the additional documentation that was provided by the Florida PRN Program and from review of the evaluation of Dr. Jerry reveals a very different discussion about consumption of alcohol, drinking and the series of events that have occurred in Dr. Mishlove's professional life that brought him to the attention of the PRN program. Additionally I am quite concerned that Dr. Mishlove failed to mention his psychiatric hospitalization that is well described and that he did discuss with Dr. Jerry. Of greater concern is the fact that Dr. Mishlove delayed significantly in providing a urine drug specimen and has not provided a hair drug test as requested as part of this evaluation process. Therefore, I have significant concern that Dr. Mishlove does in fact have a significant alcohol or other substance abuse or dependence issue which has yet to be properly diagnosed and treated. I would consider this to be an incomplete evaluation and my recommendation would be that Dr. Mishlove be required to enter into and successfully complete a comprehensive residential evaluation at a Florida PRN and Louisiana Physician Health Foundation approved evaluation center. The purpose of this would be to further clarify the history, obtain more comprehensive physical and psychological testing as well as laboratory testing and garnering additional information from collateral sources in order to come up with an accurate diagnosis or diagnoses and recommended treatment as well as a more definitive statement regarding his fitness for duty and safety to practice medicine. On September 14, 2009, Dr. Pomm notified Susan Love at the Department that Respondent's contract with PRN had been voided because of his failure to comply with the requirements of his contract. The following day, Dr. Pomm wrote to Dr. Mishlove informing him that his monitoring contract was terminated and his case referred to the Department for noncompliance. On September 23, 2009, the State of Louisiana State Board of Medical Examiners suspended his license to practice medicine. On September 28, 2009, Respondent submitted the hair sample for testing that Dr. Sucher had requested of him in June. The report dated October 1, 2009, showed positive results for cocaine, benzoylecgonine, norcocaine, and cocaethylene. The positive test for cocaethylene indicates use of both cocaine and alcohol. The confirmation level for a positive test for benzoylecgonine is 50 pg/mg; Respondent's result was 59 pg/mg. The confirmation level for a positive test for Norcocaine is 50 pg/mg; Respondent's result was 116 pg/mg. The confirmation level for a positive test for cocaine is 100 pg/mg; Respondent's result was 402 pg/mg. Finally, the confirmation level for a positive test for cocaethylene is 50 pg/mg; Respondent's result was 95 pg/mg. Respondent denied ever using cocaine and claimed that the results were contaminated. He did not, however, request a retest of the sample submitted and did not explain how he thought the results were contaminated. On October 14, 2009, Dr. Sucher e-mailed Debbie Troupe, stating that Respondent had missed an appointment with him, claiming he was taking care of his ill grandmother. He reiterated the results of the hair test. Because of these results, Dr. Sucher indicated that he would amend his report to reaffirm that Respondent needs a comprehensive evaluation but to also require a polygraph examination as part of the evaluation. On October 20, 2009, Respondent was arrested for DUI in California. On October 22, 2009, a mere two days later, Respondent was arrested a second time for DUI in California. On November 20, 2009, the Department issued an Emergency Suspension Order suspending his license to practice medicine in Florida. On November 24, 2009, California also suspended his California license. On March 23, 2010, Respondent was arrested for battery on a police officer and resisting arrest. In April 2010, Respondent pleaded nolo contendere to reckless driving involving alcohol with respect to one of the DUIs from October 2009. Respondent claims that the other charge was dropped, and the Department presented no evidence to refute his claim. In May 2010, Respondent was arrested for DUI, this time in Fort Walton Beach, Florida. He pleaded nolo contendere to the charge on August 11, 2010. On October 31, 2010, Respondent was admitted to Bradford Health Services ("Bradford") for a healthcare professional assessment, upon referral by the Louisiana Medical Board. Respondent signed a release that permitted Bradford Health Services to release and/or receive information from Florida PRN. He was discharged from the facility five days later to allow time for receipt of the voluminous records the assessment team reviewed in order to complete the evaluation. Bradford completed its evaluation and issued its report on December 31, 2010, at which time the results were shared with Respondent by phone, as he indicated he could not afford to return to the facility. The report by Bradford is extensive. He was seen by a multi-disciplinary team, headed by Michael Wilkerson, M.D., the Medical Director of the Extended Care Program. The results of the evaluation are consistent with, and corroborative of, the testimony of Elen Gajo, M.D., who evaluated Respondent separately. M. Elen Gajo, M.D. is a medical doctor who has been licensed in the State of Florida since 1991. She received her medical degree at the University of the Philippines, and completed her residency in psychiatry at the Massachusetts Mental Health Center through Harvard Medical School. She is board- certified by the American Board of Psychiatry and Neurology, and is in private practice in Fort Walton Beach, Florida. Dr. Gajo was accepted as an expert in psychiatry.5/ In preparation for Respondent's evaluation, Dr. Gajo reviewed records provided by PRN, including group facility records; evaluations from Dr. Jerry, Dr. Sucher, and the Bradford evaluation; law enforcement reports and materials in the Department file. The materials reviewed by Dr. Gajo are the type of materials commonly reviewed by physicians to evaluate patients in order to determine whether a practitioner is safe to practice his or her profession. Dr. Gajo met with Respondent for approximately 90 minutes on October 31, 2011. The interview was shorter than she would have preferred because she did not feel that Dr. Mishlove was forthcoming with any information that would be helpful. For example, Respondent denied any psychiatric history, either inpatient or outpatient, despite references to them in previous evaluations. When asked about the Bradford evaluation and the treatment by Dr. Dawes, he claimed he did not remember being evaluated at Bradford, despite the fact that he spent five days there a year before. When she presented the evaluation to him, he claimed he could not discuss it because he was in litigation with Bradford. In addition, Respondent claimed he had two DUI arrests when there were four. He would not provide significant information regarding employment issues or prior evaluations, and would only say that he was in litigation with the various entities. Despite his denials, Dr. Gajo found that the descriptions of the four incidents by the various law enforcement officers in different locations, whether or not Respondent was driving while intoxicated, were "eerily stating and reciting the same physical symptomatology." These symptoms exhibited a level of cognitive impairment, such as being passed out in the car in a traffic jam at Sunset Boulevard in Los Angeles, having a staggering gait, redness of the eyes, and slurred speech. Responses about these incidents resulted in answers such as "I fell asleep," "I was hungry," and "it didn't happen." Respondent provided little information during the evaluation to explain the documentation and there were no discussions about chemical abuse and dependency, because Respondent believes that there is not a problem. Given the number of issues that Respondent was unwilling to discuss, Dr. Gajo testified that two possibilities arise: that the person is in denial of what actually happened; or the person is simply unwilling to discuss the actual truth of what occurred. Under these circumstances, the credibility of the information that is received is suspect. Dr. Gajo testified that DSM-IV provides criteria upon which to base a diagnosis of alcohol abuse. These include failure to fulfill obligations with work, school and/or family; conduct that places the person in situations that are physically dangerous, such as driving while impaired; recurrent legal problems; and continued use despite persistent or recurrent problems interpersonally or in the community. She felt all four of these factors applied to Respondent. Dr. Gajo also testified credibly that a positive breathalyzer test or positive urine drug screen is not required for a diagnosis of alcohol abuse or dependence, but is one factor to consider. In Dr. Gajo's opinion, Respondent has Axis I diagnoses of alcohol abuse; rule out alcohol dependence; and rule out cocaine abuse and/or abuse of other substances. Under Axis II, she opined that he had a diagnosis of rule out narcissistic and antisocial personality traits. Dr. Gajo also opined that Dr. Mishlove is currently unable to practice medicine with reasonable skill and safety to patients. The fact that as a radiologist, Dr. Mishlove does not interact with patients is not dispositive. Impairment due to alcohol abuse affects a person's cognitive function and ability to render critical opinions. Dr. Gajo's opinion is credited. Respondent proffered Respondent's Exhibit 8, which comprises a series of reports from hair and urine tests that he had performed in Panama City over the last year. These reports were not admitted into evidence because they were not properly authenticated. However, even assuming the admissibility of these reports, the results obtained are not probative. As Dr. Mishlove admitted in his deposition, he arranged for the testing and it was not conducted on a random basis. Inasmuch as alcohol and cocaine are only detectable in both hair and urine for a limited period of time, tests conducted at a time selected by the person being tested do not provide any helpful information in determining whether Respondent is able to practice with reasonable skill and safety to patients.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding Respondent violated section 456.072(1)(hh) and section 458.331(1)(s), Florida Statutes, and suspending his license to practice medicine until such time as he can demonstrate the ability to practice with reasonable skill and safety to patients. In the event that he is reinstated, it is further recommended that he be placed on probation for a period of five years. DONE AND ENTERED this 30th day of March, 2012, in Tallahassee, Leon County, Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2012.
The Issue Whether Respondent's medical license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Respondent is a licensed physician in the State of Florida, holding license No. ME 0071307. Respondent specializes in psychiatry. However, he is not Board-certified in psychiatry. Prior to licensure, Respondent had a history of heavy drinking in medical school; an alcohol overdose resulted in a hospitalization in Tampa, Florida, followed by a ten week intensive outpatient program. In 1996, Respondent applied to the Board of Medicine for licensure as a physician in the State of Florida. During the licensure application process, the Board became aware of Respondent's history of alcohol and drug abuse and referred him to PRN for an evaluation. PRN is the impaired practitioners program for the Board of Medicine. It was created pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired health care professionals. PRN oversees therapy and treatment and provides for the exchange of information between the treatment providers, PRN and the Department. PRN also refers impaired practitioners to treatment providers or treatment programs which have been approved by the Department. The purpose of PRN is to protect the public from physicians who have an impairment that is likely to interfere with the competent provision of medical services. PRN does not provide medical services. Chemical dependency is a disease for which there is no cure. It can be placed in remission by practicing a program of recovery and/or exercising a great deal of self-discipline. Remission is not easy to achieve or maintain and is the sole responsibility of the licensee to maintain. A program of recovery involves a support network of individuals who understand the disease and can offer support. Such support includes recognizing the signs and symptoms of potential relapse and confronting the individual about such relapse behavior. Relapse behavior is any behavior which a person uses to rationalize the use of a chemical, to avoid situations that might prevent use of a chemical and /or engage in situations which either directly or indirectly lead to the use of a chemical. Relapse behavior is often very subtle and insidious. The type of confrontation can range from very gentle to very intense, depending on a recovery program's philosophy. The PRN recovery program is more stringent than other impaired practitioner programs because of the potential consequences of relapse on the health, safety, and welfare of the public. In addition, PRN support groups are for professionals and are run by a facilitator who is trained to observe the type of behavioral patterns that are exhibited in an individual with an impending relapse. The PRN program tends to follow an intense confrontational philosophy. PRN's method of monitoring yields an extremely high rate of success. However, PRN also has failures in its monitoring. The minimal length of a standard PRN contract for an individual with a chemical dependency problem is five years. Statistics have shown the five-year term to be the most effective length of monitoring in order to guarantee the best prognosis possible. The longer the contract, the lower the risk of relapse. After five years, the risk of relapse is somewhere between five and ten percent. The conditions of a standard PRN contract include having a primary care physician, attendance at a professional support group, urine monitoring, and attendance at a recovery self-help group like AA. However, PRN does not require a self- help group which utilizes the spiritual or religious components of AA. There are alternative self-help groups available to Respondent which do not include such components. A professional support group and a trained facilitator is required due to the very complex and difficult management problems posed by physicians. The professional support groups have individuals who are newly in recovery and others who have been in recovery for five, ten, and fifteen years. Those professionals who have a number of years of recovery are very beneficial to the group since they have experienced similar problems in terms of balancing family needs, extreme requirements of medical practice, financial issues that go along with being a physician, and other aspects of being a physician that are not generally experienced by the general population. Such a physician support group works for the majority of physicians in PRN with a chemical dependence. However, the evidence did not show that participation in a professional support group is a necessity or beneficial to all of PRN's chemically dependent physicians. In particular, the necessity of participation of Respondent in such a group was not clear. Indeed, Respondent's participation in such a group appears to have been detrimental to his recovery because the primary underpinnings of Respondent's alcohol dependence are in Respondent's ongoing difficulty in dealing with various forms of severe familial inflicted trauma he experienced in his adolescence. The goals of PRN's monitoring contract are to stay sober, to stay in recovery, and to get one's life back in order including family life and the practice of medicine. The difference between the PRN program and other programs is the ongoing nature of the communications with the primary health care physician, the monitoring of prescription medications, the monitoring of physical and psychiatric problems, and the random urine monitoring system. PRN referred Respondent to Raymond Johnson, M.D., for evaluation of Respondent's possible chemical impairment. Around April 22, 1996, Dr. Johnson evaluated Respondent and diagnosed him as being alcohol dependent, in remission. Remission is defined as having not used a chemical. Dr. Johnson noted that Respondent was in a relapse pattern, although he may not have relapsed yet. A relapse pattern consists of behaviors exhibited by a chemically dependent person which indicate that the person either has or will begin to abuse substances. Dr. Johnson recommended that PRN monitor Respondent with the following conditions: One PRN meeting per week and at least three AA meetings per week; regular random urine drug screenings; a sponsor; and psychotherapy focusing on addictions and family of origin issues. Dr. Johnson felt that Respondent needed psychotherapy due to his lack of insight into his rebelliousness during his teen years and due to his difficulty in identifying relapse patterns. On May 25, 1996, Respondent executed a lifetime monitoring contract with PRN which included the following conditions: a) submit to random urine, drug, or blood screens; abstain from any use of drugs or alcohol; (c) attend AA or NA meetings two times a week; (d) attend a 12-step program of recovering professionals; (e) notify PRN of the use of any drugs or alcohol; (f) and withdraw from practice for evaluation at the request of PRN if a problem develops. The contract was based in part on Dr. Johnson's recommendations. However, the evidence did not demonstrate that the recommendation for psychotherapy was implemented by either Respondent, PRN, or the Board. In Respondent's case the lack of focused psychotherapy would prove to be a problem. However, it remains Respondent's responsibility to seek whatever help he needs in order to maintain his sobriety. Because of Respondent's participation in PRN, on September 12, 1996, the Board of Medicine granted Respondent's application for licensure by endorsement as a physician with Respondent's license to be subject to a period of five years of probationary terms and conditions, including the following: You shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized to prescribe controlled substances. Your [sic]shall not consume alcohol; and You shall participate and comply with the Physician's Recovery Network and shall enter into a and comply with an after-care contract with PRN. At some point after licensure, Respondent became disillusioned with the professional support group, the group's confrontational style, the demands of PRN staff which Respondent perceived as threatening, and attendance at AA which Respondent felt violated his religious freedom. As Respondent's participation in his PRN program became more erratic Respondent began to relapse; a classic pattern of relapse. However, even with his dissatisfaction with PRN and his underlying psychological difficulty, it was Respondent's sole responsibility to maintain his sobriety. In late November 1999, Respondent, in violation of the terms of his licensure, began to drink alcohol. Respondent sometimes consumed up to 12 beers a day. Petitioner consumed the alcohol even though he was being monitored by PRN and in treatment under his PRN contract. There was no evidence that Respondent's relapse had an adverse impact on his provision of psychiatric services at the correctional institution where he was employed. On December 19, 1999, over three years into his PRN contract, Respondent was arrested and charged with Driving Under the Influence (DUI). Respondent's blood alcohol level was 0.21. Such a level while driving demonstrates that Respondent has an alcohol dependence problem and that Respondent has developed a tolerance to alcohol. Respondent subsequently pled guilty to the charge of misdemeanor DUI. He was sentenced to eight month's probation, a $565.00 fine, 50 hours of community service, DUI School, six month's driver's license revocation, and completion of the victim awareness program. Respondent successfully completed his sentence. On December 21, 1999, Respondent contacted PRN and advised that he had been arrested for DUI. PRN staff instructed Respondent to withdraw from practice and get evaluated, as per his monitoring contract conditions. Respondent had already voluntarily withdrawn from practice. However, he did not voluntarily withdraw from practice until his drinking came to the attention of law enforcement. Respondent knew that attention from law enforcement would cause his drinking to come to the attention of PRN and the Board. On or about January 6, 2000, Kenneth Thompson, M.D., evaluated Respondent. Dr. Thompson is certified by the American Society of Addiction Medicine and is employed as a clinical associate professor. He is the medical director of the Florida Recovery Center in the Impaired Professional Program at the University of Florida. The program provides primary care to patients with addictive disorders. The program is approved by the Department. On the date of the evaluation, Respondent reported to Dr. Thompson a history of heavy drinking in medical school; an alcohol overdose which resulted in a hospitalization in Tampa, Florida, followed by a ten-week intensive outpatient program; and, most recently, a relapse during Thanksgiving of 1999, when he returned to drinking of up to a 12-pack of beer per day. Dr. Thompson concluded that Respondent was alcohol dependent and in relapse. He recommended Respondent withdraw from the practice of medicine and enter residential treatment. Respondent did not mention any trauma he had suffered during his younger years. His failure to mention such trauma was, in part, due to his denial of such trauma. The ability to maintain denial is high in a chemically dependent person. Dr. Thompson's recommendation that Respondent be involved with a residential or an intensive treatment program was based on the facts that Respondent has a high risk of relapsing since he was under monitoring by PRN when he returned to drinking; that Respondent's personality styling lent him to being resistive to treatment; and that Respondent needs to be involved in a strong peer group. In addition, Respondent's history of a prior hospitalization which failed, a prior outpatient program which failed, a monitoring program which failed, a DUI and a relapse, necessitated residential treatment. Residential treatment is the most intense form of program available and the only one not yet tried by Respondent. At the time of Respondent's evaluation in January 2000, both Dr. Pomm, the medical director of PRN and Dr. Thompson concluded that Respondent was unable to practice medicine with reasonable skill and safety to patients. When a practitioner is unable to practice medicine with reasonable skill and safety to patients, that person is either impaired or his or her impairment is in question. The danger of allowing a suspect individual to practice, without knowing more information about the individual's addiction, puts the health, safety, and welfare of the public at an unacceptable level of risk. The determination by Dr. Pomm and Dr. Thompson was based on the following reasons: Respondent had relapsed again after a chronic history of recovery; various attempts at recovery, treatment, and relapse; lack of a documented history of sobriety; and Respondent's high risk for continued relapse since he was not currently in treatment. On January 8, 2000, per Dr. Thompson's recommendation Respondent went to Shands Hospital's Vista treatment facility for an initial evaluation and admission to the Professional's Residential Program. The program is approved by the Department. Respondent was willing to comply with the residential treatment recommended by Dr. Thompson. Respondent was not willing to comply with any of the recommendations regarding participation in a physicians support group. Respondent did not enter the residential treatment program at Vista. He simply could not afford the hefty fee charged by Vista for its program. The same financial barrier applied to other residential treatment facilities approved by the Department. PRN did offer a small loan to Respondent to help pay for the cost of residential placement. However, the loan was inadequate to meet the huge cost of residential treatment. In February of 2000, Respondent's contract with PRN was voided and Respondent's case was turned over to the Department with a recommendation of an emergency suspension order. On or about February 20, 2000, Respondent began treatment at CATS. CATS is a non-PRN approved outpatient program in Tavares, Florida. Bud Stalter is the owner and director of CATS. Mr. Stalter does not hold a four-year or advanced degree, but does have many years of experience in the drug addiction recovery field. He is well thought of in the addiction recovery field and has dedicated his life to that field. Mr. Stalter personally counsels Respondent and provides treatment to Respondent for free. Even without a degree, Mr. Stalter is well qualified to operate an addiction recovery program. The CATS program deals with a variety of counseling issues such as co-dependency, marriage counseling, stress management, anger management, domestic violence, and abusive trauma in addition to chemical dependency. It employs a non- confrontational therapeutic method and tries to treat all of a person's problems which contribute to relapse or continued addiction. There are no medical physicians involved in Respondent's treatment. The program does employ random drug testing. However, the evidence did not show that the drugs CATS tests for are the same as the drugs tested for by PRN. The CATS program does not provide professional self- help groups. Again the need for such a peer group was not established by the evidence. The evidence did show that a professional peer group is generally a good idea and beneficial to most chemically dependant physicians. The CATS program does provide a twelve-step support group. Respondent attends AA at CATS. PRN's professional support groups are conducted by facilitators who are trained to identify relapse behaviors such as individuals not going to meetings as often, lacking insight into the impact of their disease, making poor decisions, and displaying increasing amounts of anger, defensiveness, projection, denial, and rationalization. The importance and effectiveness of these PRN group facilitators is punctuated by the fact that after Respondent had been confronted several times by a facilitator regarding his relapse behavior, Respondent did indeed relapse. However another type of group with a trained facilitator such as the one at CATS could have provided the same oversight as PRN's professional support group. On or about October 23, 2000, Respondent was re- evaluated by Dr. Thompson at which time Respondent reported that he was involved in the CATS program, had been attending some AA meetings, and had not had any alcohol or other substances since December of 1999. Based on the standard which Dr. Thompson used in monitoring health care professionals, he could not find any clear evidence that Respondent had maintained his sobriety since December of 1999 or that he had been monitored in an acceptable manner. The standard used by Dr. Thompson requires attending weekly, monitored PRN group meetings with a counselor who is known by either Dr. Thompson or PRN, and drug screens which are the type that would pick up atypical drugs, such as benzodiates or the more obscure opiates, that a physician might abuse. There was no evidence that Respondent requested that PRN investigate or review the CATS program to see if it could become a Departmentally approved treatment program for Respondent or that some of the provisions of Respondents monitoring contract be waived because such provisions did not benefit continuation of Respondent's remission. Likewise no such evidence was submitted at the hearing. Therefore, no findings of fact can be made regarding substitution of the CATS for parts of the PRN program can be made. Dr. Thompson also determined that Respondent's narcissistic features were adversely affecting his ability to recover from chemical addiction because of the greater level of resistance, the lack of insight into his behavior, and the tendency to think that he should be treated differently. A number of narcissistic features are present in Respondent's personality such as his tendency to project or blame other outside causes, entities, the Department, the PRN authority, and life circumstances for his current predicament. In addition, Respondent does not think that he should have to be treated in the same manner or placed under the same restraints as other people. Respondent's attempt to determine his treatment needs is gauged toward directing only those things that he's willing to do. Respondent has chosen a treatment program in which his treatment providers have considerably less medical and psychiatric experience than himself, which offers a completely non-confrontational therapeutic environment, in which he develops and directs his plan of recovery. In addition, the CATS program does not have a five-year contract with Respondent. CATS and Respondent have a one-year agreement for monitoring. After that year has elapsed, Respondent's participation is purely optional and he can continue to be monitored by CATS for "as long as he likes." However, Respondent has benefited more from the CATS program than from the program under his PRN contract. Again the evidence was insufficient to determine whether the CATS program could be substituted for the usual PRN program. The goal is to maintain remission and different programs may well work for different individuals if those programs can create the paper trail necessary to document continued remission. The treatment plan developed by Respondent and CATS is not familiar to PRN. The evidence showed that neither PRN or the Board reviewed the CATS program or the random drug testing CATS employed. The evidence did not show that PRN, the Board, or Respondent attempted to have the CATS program reviewed to see if it did meet PRN requirements. According to Mr. Stalter, Respondent's recovery plan has already been changed several times to accommodate Respondent's life situation. Indeed, the CATS program and gentler counseling are working for Respondent at this time. However, Respondent has also relapsed several times in the past. Clearly, Respondent needs to be actively monitored for licensure purposes. As of the date of the hearing, no current information was available to the Department experts as to what monitoring Respondent was receiving. Respondent's history shows that he is at a very high risk of relapse due to the fact that he is very early in recovery, and he has a chronic history of relapse. He has not complied with his PRN contract. Given this history, there is no reason to believe that Respondent will not repeat his history of relapse under CATS. Continued PRN monitoring is necessary. However, there is no reason to believe at this point that the CATS program cannot be substituted for parts of the PRN program or that the peer support group requirement might be adjusted given Respondent's need for greater therapy regarding his earlier trauma. Undoubtedly, Respondent violated Section 458.331(1)(c), Florida Statutes, by being convicted of DUI which under the facts of this case affects Respondent's ability to practice medicine. Additionally, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform the conditions of his licensure because he failed to comply with all the terms of his PRN monitoring contract and failed to remain sober and free from alcohol. However, Respondent was unable to pay for the treatment recommended by Dr. Thompson. Moreover, Respondent did seek out alternative treatment which at this point appears to be more beneficial to Respondent because it is addressing the underlying cause of his chemical dependence and self medication. Additionally, no direct harm occurred to any patient of Respondent. Respondent did recognize his need to withdraw from practice until he was back in control of his behavior. Based on these factors, it is not appropriate to revoke Respondent's license. However, it is appropriate to continue the conditions of Respondent's license and add that Respondent must participate in a PRN program unless and until a CATS or other CATS-type program becomes a Departmentally approved treatment program and that Respondent not practice until such time as he obtains such approval or enters into a standard PRN monitoring program. Failure of Respondent to participate in either an approved CATS program or a PRN program should result in revocation of Respondent's license.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health, Board of Medicine, issue a final order imposing a reprimand; an administrative fine of $1,000.00; and placing Respondent's license on five years' probation with the following conditions: 1) that Respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized to prescribe controlled substances; 2) that Respondent shall not consume alcohol; and 3) that Respondent shall participate and comply with the Physician's Recovery Network unless or until a CATS or other CATS type program becomes a Departmentally approved treatment program; that Respondent not practice until such time as he obtains a such approval or enters into a standard PRN monitoring program; and that failure of Respondent to participate in either an approved CATS program or a PRN program shall result in revocation of Respondent's license. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 1st day of May, 2001. COPIES FURNISHED: Kim M. Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bradley J. Broyles, M.D. 1614 North Michigan Avenue Leesburg, Florida 34748-7036 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent is guilty of being unable to practice massage with reasonable skill and safety due to illness, in violation of section 480.046(1)(g), Florida Statutes, or failing to comply with a monitoring or treatment contract or being terminated from a treatment program for impaired practitioners, in violation of section 456.072(1)(hh), Florida Statutes, and, thus, section 480.046(1)(o), Florida Statutes. If either charge is proved, an additional issue is the penalty that should be imposed.
Findings Of Fact By application dated September 23, 2003, Respondent applied for licensure as a massage therapist. The application lists Respondent's address as 2342 Treasure Isle Drive, Palm Beach Gardens. At all material times, this has been Respondent's official address of record with the Board of Massage Therapy, and Respondent's parents have resided at this address. For much of the time since licensure, Respondent has resided at his parents' home. For the time since licensure that Respondent did not reside at this address, his parents timely forwarded to Respondent all licensure-related mail when they received such mail. Respondent's application mentions a mental illness, so the Board of Massage Therapy referred the file to its History Committee. After consideration of the materials in the file, the History Committee referred the file to PRN for an evaluation of Respondent and his fitness to practice. Respondent's psychiatrist, Jorge H. Caycedo, who practices in Miami, sent a letter, dated January 9, 2004, to the Board of Massage Therapy. The letter states that Respondent has been in out-patient therapy with Dr. Caycedo, "on and off," since October 1997. Dr. Caycedo opined that Respondent suffers from "a Bipolar Disorder." At the time of the letter, Respondent was on a combination of medications that he had found "most helpful." The letter concludes: [Respondent] is well aware of the nature of his mental problems and of the consequences of not taking his medications regularly, as prescribed. In my opinion, he is in condition to practice as a massage therapist provided that he follows the treatment recommended to him. On February 17, 2004, Dr. Aldo Morales, a psychiatrist, examined Respondent at the request of PRN. In his letter of the same date, Dr. Morales detailed Respondent's psychiatric history, which includes four hospitalizations for manic and depressive episodes--mostly the latter--and command auditory hallucinations. Dr. Morales noted that Respondent's family history includes a sibling with bipolar disorder and that Respondent's personal history included daily use of marijuana for six years, but his use of marijuana, as well as alcohol, had ended 11 years earlier. Dr. Morales' letter reports that a ten- panel drug screen, which included a test for marijuana, was negative. Dr. Morales found nothing adversely remarkable in the mental status exam and entered, as Axis I diagnostic impressions, "Bipolar Disorder, most recent episode depressed (3 1/2 years ago), with a prior history of psychosis" and "Cannabis dependence, in full sustained remission . . .." Dr. Morales assessed Respondent's global assessment of function as 70. Based on his examination, Dr. Morales concluded: It is my opinion that [Respondent] can practice his profession with reasonable skill and safety as long as he remains under psychiatric supervision, adheres to his medication regimen, and remains clean and sober. On March 13, 2004, PRN entered into an Advocacy Contract with Respondent. Immediately under "Advocacy Contract," at the top of the first page of the contract, is the following: "***Licensure-Long****." In the contract, Respondent agrees to submit to random urine or blood screens; abstain from all but prescribed medications, drugs, alcohol, and other mood-altering substances; obtain quarterly updates for PRN from Dr. Caycedo; attend a weekly PRN-monitored professional support group; and return messages from PRN within 24 hours. Other requirements included notification of PRN anytime that Respondent, a French citizen, left the United States and anytime that he returned to the United States, as well as a visit to Respondent's treating psychiatrist within one week of returning to the United States with a report from the psychiatrist to PRN. At the bottom of the contract, immediately above Respondent's signature, which is dated March 13, 2004, is the statement: [PRN] agrees to assume an advocacy role with Professional Licensing Board . . . for [Respondent] provided the following terms are agreed to and met. The duration of this contract will be licensure-long. . . . At the meeting of the Board of Massage Therapy on April 22, 2004, pursuant to the contract between PRN and Respondent, a PRN representative made a brief presentation highlighting the above-described facts. In this presentation, the PRN representative assured the Board that the monitoring would apply "license long." The Board agreed to issue a suspended license to Respondent, but to stay the suspension as long as Respondent remained compliant with the PRN contract. Immediately after the vote, a Board member addressed Respondent: You understand what we did? You have your license as long as you stay in compliance. There's a suspension on your license but that suspension is stayed[. A]s long as you stay in compliance with that contract[,] you['re] fine. The Board of Massage Therapy then issued an Order Granting Conditional License dated May 20, 2004. The Order states the application is: CONDITIONALLY APPROVED with the following conditions of licensure: [Respondent] shall remain in compliance with any recommended . . . PRN . . . contract. The license shall be issued suspended, with suspension stayed for so long as [Respondent] remains in compliance with the PRN contract. Should [Respondent] fail to maintain compliance with the PRN contract, the stay of suspension shall be lifted until [Respondent] appears before the Board and demonstrates renewed compliance. The conditions are imposed on [Respondent's] violation of section[s] 480.046(1)(g); 456 072(1)(y) Florida Statutes by being unable to practice Massage Therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of materials, or as a result of any mental or physical condition. The Order concludes with a Notice of Right to Hearing that clearly provides Respondent with a chance to contest disputed issues of fact before an Administrative Law Judge or undisputed issues of fact by other means. Respondent did not avail himself of either of these options. The Board of Massage Therapy issued Respondent license number MA 41103. The licenses issued by the Board of Massage Therapy expire on August 31 in odd-numbered years. Using the address noted above, the Board contacted Respondent each time that his license was approaching the end of its term, and Respondent renewed his license by August 31 in 2005, 2007, and 2009. At all times, Respondent's license number remained MA 41103. Following licensure, Dr. Caycedo provided PRN with periodic updates of Respondent's status, although the frequency of these updates was less than quarterly. These letters are dated June 10, 2004; October 8, 2004; February 8, 2005; February 21, 2005; June 1, 2005; December 1, 2005; and February 16, 2006. The February 8 letter reports that Respondent said on this visit that he had been hearing voices, although they had been friendly and not issuing commands, and he had been "more depressed." The other letters reported that Respondent was in good mental condition and stable, although the last letter reports that Respondent had complained of difficulty concentrating and feeling "racy." This letter states that Respondent's next office appointment would be in two months. Respondent testified that he visited Dr. Caycedo and attended group meetings for the first two years after receiving his license. Respondent's main defense is that the condition of suspension attaching to his license expired when the first license term expired because his renewed license was "new" and not conditioned on his ongoing compliance with the PRN contract. However, Respondent did not take advantage of the opportunity to clarify his claimed misunderstanding when he could have done so easily. By letter dated January 23, 2007, Dr. Raymond M. Pomm, then Medical Director of PRN, warned Respondent that PRN was preparing to refer Respondent's case to Petitioner due to Respondent's failure to comply with his contract and gave Respondent until February 1 to contact PRN staff for "direction." If Respondent had truly misunderstood whether the condition had continued to attach to his license, he would have taken this opportunity to resolve the issue. Respondent received the January 23 letter. It was sent to the address listed above, and Respondent's father signed for it on January 25, 2007. Respondent's admission at the hearing that it was "possible" that he received this letter acknowledges the obvious--he received it, and he received it when it was delivered at his parents' home. At the time, Respondent was living at this address. Also, later in 2007, when Respondent's license came up for renewal, the notice went to the same address, and Respondent did what was required to renew his license. Respondent ignored the February 1 deadline. On February 26, 2007, Dr. Pomm wrote Respondent to advise him that PRN had referred his case to Petitioner for noncompliance with his PRN contract. Again, Respondent received the letter, but took no action. On the same date, Dr. Pomm wrote Petitioner and stated that Respondent was not in compliance with his PRN contract, and Dr. Pomm "cannot say that he is safe to practice with reasonable skill and safety " Respondent continued to practice massage therapy in Florida until September 2008. At this time, Respondent returned to Paris, France, where he lived and worked until about December 1, 2010, when he returned to Florida. Respondent testified that he filed the paperwork to renew his license by August 31, 2009, while he was residing in Paris. Although the record omits any copy of this renewal, unlike the 2005 and 2007 renewals, Mr. Anthony Jusevitch testified that the Board renewed Respondent's license on August 31, 2009. Respondent testified that he visited Dr. Caycedo upon Respondent's return to Florida, but the record contains no indication of when or the findings of Dr. Caycedo, except Respondent's two-edged assurance that Dr. Caycedo thought that it was a "miracle" that Respondent was well. At the hearing, Dr. Rivenbark testified on cross that she has no reason today to opine that Respondent could not practice massage therapy with skill and safety, although, on redirect, she clarified her testimony by adding that, based on Respondent's diagnosis, there is "great potential" that he may be unsafe to practice. Dr. Rivenbark's opinion is about the same as Dr. Pomm's opinion--each expert lacks a basis to say that Respondent may practice with reasonable skill and safety. Of course, such evidence is short of establishing that Respondent is unable to practice with reasonable skill and safety. The only evidence to support a present finding to this effect would be an inference from Respondent's initial diagnoses, as well as his auditory hallucinations and recurring depression, although these occurred five years ago. The most current information appears to be Dr. Caycedo's findings upon Respondent's return to Florida a couple of months ago, but, given its hearsay nature, this testimony is not especially reliable, nor is it at all descriptive of what, if anything, Dr. Caycedo meant. The evidence in this record is therefore short of what is necessary to establish that Respondent may not practice with reasonable skill or safety, but this finding in no way implies that the condition originally attached to his license--ongoing compliance with the PRN contract--is no longer necessary.
Recommendation It is RECOMMENDED that the Board of Massage Therapy enter a final order suspending Respondent's license until he achieves compliance with his PRN contract. DONE AND ENTERED this 1st day of March, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2011. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Fabian Chanoz 2342 Treasure Isle Drive Palm Beach Gardens, Florida 33410 E. Renee Alsobrook, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-3256 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Respondent’s refusal to comply with modifications proposed by Professional Resource Network to his monitoring contract violated section 456.072 (1)(hh), Florida Statutes (2017).1/
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of podiatric medicine pursuant to section 20.43, and chapters 456 and 461, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was a licensed podiatric physician within the State of Florida, having been issued license PO 3818. On or about March 24, 2015, Respondent submitted to the Florida Board of Podiatric Medicine (Board) an application for licensure as a podiatric physician. In his application Respondent disclosed prior criminal conduct, which prompted the Board to condition his licensure “upon a positive” evaluation from PRN, which is designated as the State of Florida’s impaired practitioners program for physicians. On or about November 24, 2015, Respondent entered into a monitoring contract with PRN. The PRN monitoring contract was for a term of five years. According to the PRN participant manual, the following are the types of monitoring contract components provided to health care professionals: Chemical dependency (CD); Substance abuse; Psychiatric; Dual (CD/Psych); Behavioral; Physical impairment; Concurrent (2 or more problems); Boundary; Specialized; Chronic pain; and, Diagnostic monitoring. At its inception, Respondent’s PRN monitoring contract was a “concurrent type,” which offered “boundary and psychiatric” component monitoring services. The PRN monitoring contract contains the following provisions: The terms set forth in this Contract, including its duration, may be subject to change if PRN, in its sole clinical discretion, concludes that additional, higher, or otherwise different, types and levels of monitoring and other contract obligations are necessary to ensure the Participant is able to practice with skill and safety and otherwise progress through the program. * * * Once this Contract becomes effective, any modifications to this Contract are effective only when made in writing and signed or initialed by both the PRN Medical Director and Participant. Related to the above contractual provisions, is the PRN Participant Manual, Participant Rights statement, which advises individuals that they have “the right [t]o refuse to participate in any or all of the components of PRN, [and that] to do so may result in a formal report to the Department of Health and [their] Board.” On or about March 31, 2016, the Board granted Respondent a license to practice as a podiatric physician in the State of Florida. Although Respondent was issued a license by the Board, there is no evidence that Respondent has ever engaged in the practice of podiatry in the State of Florida. From its inception through November 2017, Respondent was in compliance with the terms of his PRN monitoring contract. However, events commencing around mid-July 2017 eventually culminated in Respondent opting out of the PRN program. On the morning of July 11, 2017, Respondent contacted his compliance manager at PRN. Respondent, among other things, informed his compliance manager that he was not working as a podiatrist, was struggling financially, his girlfriend had undergone multiple major surgeries and was having a difficult recovery, and he was taking Cymbalta, Adderall and Xanax. The compliance manager immediately shared the new information received from Respondent with the PRN medical director who, after considering Respondent’s history of DUIs, and his psychological history, determined that Respondent should be referred for a multi-disciplinary evaluation. At 10:34 a.m. on July 11, 2017, PRN advised Respondent via e-mail that he was being referred for a multidisciplinary evaluation and that the same must be completed before Respondent would be allowed to return to the practice of podiatry. On September 12, 2017, Respondent complied, and offered himself for the multidisciplinary evaluation prescribed. The multidisciplinary evaluation team diagnosed Respondent with alcohol use disorder – moderate, evaluate for severe; sedative use, evaluate for use disorder; opioid use, evaluate for use disorder; stimulant use, evaluate for use disorder; persistent depressive disorder (dysthymia); narcissistic traits; paranoid and dependent features, likely borderline and avoidant features; and history of lumbar pain. The multidisciplinary evaluation team opined that, prospectively, Respondent will not be able to practice as a podiatric physician in the State of Florida with reasonable skill and safety and recommended that Respondent enter a PRN approved residential treatment program. The evaluation team also recommended that Respondent be placed on a PRN monitoring contract, with a new contract start date, following completion of the residential program. On or about October 6, 2017, PRN discussed the findings and recommendations of the multidisciplinary evaluation with Respondent. On November 6, 2017, PRN offered Respondent four options for PRN approved treatment programs, and imposed a deadline of November 13, 2017, to enter treatment. PRN also requested that Respondent execute a voluntary withdrawal from practice form and return it to PRN the following day. On November 6, 2017, Respondent notified PRN that he specifically was not going to enter treatment as recommended by the multidisciplinary team and that generally he was no longer going to participate in any PRN program. Respondent has not returned an executed voluntary withdrawal from practice form as requested by PRN, nor has Respondent entered treatment as directed by PRN. On January 16, 2018, PRN terminated Respondent’s PRN monitoring contract and Respondent has not reentered the program. Respondent testified that if he were ordered by the Board to reenter PRN, he may be unwilling to comply, unless he finds the terms favorable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Podiatric Medicine enter a final order: finding that the Respondent violated section 456.072(1)(hh); and suspending his license until such time as he demonstrates his ability to practice with reasonable skill and safety as evidenced by Respondent entering into and complying with a PRN monitoring contact. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2018.
The Issue The issues are whether proposed Florida Administrative Code Rule 58A-5.024(1)(p)1.a., a proposed amendment to Florida Administrative Code Rule 58A-5.024(3)(c), and, as recently amended or created, Florida Administrative Code Rules 58A-5.0131(41), 58A-5.0181(2)(b) (amending AHCA1 Form 1823 (Form 1823)), 58A-5.0182(8)(a) and (8)(a)1., 58A-5.0185(3)(g), 58A-5.0191(3)(a), and 58A-5.031(2)(d)2 are invalid exercises of delegated legislative authority, pursuant to section 120.52(8), Florida Statutes, on the grounds set forth in the Joint Pre-hearing Stipulation filed on May 30, 2018 (Prehearing Stipulation) or such other grounds that were tried by consent.
Findings Of Fact By "Notice of Proposed Rule" published on March 5, 2018, Respondent proposed amendments to 11 rules: rules 58A-5.0131, 58A-5.014, 58A-5.0181, 58A-5.0182, 58A-5.0185, 58A-5.019, 58A-5.0191, 58A-5.024, 58A-5.029, 58A-5.030, and 58A-5.031. For rulemaking authority, Respondent cited sections 429.07, 429.17, 429.178, 429.24, 429.255, 429.256, 429.27, 429.275, 429.31, 429.41, 429.42, 429.44, 429.52, 429.54, and 429.929. For the law implemented, Respondent cited sections 429.01 through 429.55 and 429.905 and chapter 2015-126, Laws of Florida.14 The proposed amendments to rule 58A-5.024 state15: The facility must maintain required records in a manner that makes such records readily available at the licensee’s physical address for review by a legally authorized entity. . . . For purposes of this section, “readily available” means the ability to immediately produce documents, records, or other such data, either in electronic or paper format, upon request.16 FACILITY RECORDS. Facility records must include: * * * The facility's infection control policies and procedures. The facility's infection control policy must include: A hand hygiene program which includes sanitation of the hands through the use of alcohol-based hand rubs or soap and water before and after each resident contact. Use of gloves during each resident contact where contact with blood, potentially infectious materials, mucous membranes, and non-intact skin could occur. The safe use of blood glucometers to ensure finger stick devices and glucometers are restricted to a single resident. Lancets should be disposed in an approved sharps container and never reused. Glucometers should be cleaned and disinfected after every use, per manufacturer's instructions, to prevent carry-over of blood and infectious agents. Medication practices including adherence to standard precautions to prevent the transmission of infections in a residential setting. Staff identification, reporting, and prevention of pest infestations such as bed bugs, lice, and fleas. * * * (3) RESIDENT RECORDS. Resident records must be maintained on the premises and include: * * * (c) . . . Records of residents receiving nursing services from a third party must contain all orders for nursing services, all nursing assessments, and all nursing progress notes for services provided by the third party nursing services provider. Facilities that do not have such documentation but that can demonstrate that they have made a good faith effort to obtain such documentation may not be cited for violating this paragraph. A documented request for such missing documentation made by the facility administrator within the previous 30 days will be considered a good faith effort. The documented request must include the name, title, and phone number of the person to whom the request was made and must be kept in the resident's file. The challenge to rule 58A-5.024(1)(p)1.a. is to the unconditional requirement of hand sanitizing "before and after each resident contact."17 Resident contact is unqualified, so the challenged provision does not exclude casual or incidental contact between a staffperson and a resident. One of Respondent's witnesses assured that Respondent does not intend for "each residential contact" to include casual contact by staff, such as "high fives" during a bingo game or the brushing of shoulders in the hall, but this assurance cannot displace the unconditional language of the rule, as well as the fact that enforcement of the rule is left to the Agency for Health Care Administration (AHCA), not Respondent.18 In its present form, the rule requires hand sanitizing before exchanging "high fives" or, somehow, even a pat on a staffperson's clothed shoulder initiated by a resident, so as to discourage such casual contact. Requiring hand sanitizing before and after each and every resident contact will encompass many contacts for which hand sanitizing will have no effect on the control of infections and deter or abbreviate interactions between residents and staff, who would repeatedly be washing their hands during time that they otherwise might spend with residents. Generally, a hand hygiene program is neither capricious nor arbitrary because it responds to a well-recognized means by which disease is transmitted——human to human--with sanitation as a well-recognized means to interrupt this transmission process. However, the proposed rule irrationally requires hand sanitation before incidental residential contact that, by its nature, is unplanned, and after residential contact with another part of a staffperson's body, such as an elbow or clothed back, rather than the staffperson's hand, where hand washing would not have any sanitizing effect. The rule is also unsupported by logic or the necessary facts. On its face, rule 58A-5.024(1)(p)1.a. is not vague: a staffperson must sanitize her hands after every contact with a resident and before every contact with a resident, even, somehow, unplanned contacts that may be initiated by the resident. Respondent's promise that AHCA will apply this proposed rule reasonably--i.e., the inspector will know a violation when she sees one--makes the point that, to be spared findings of capriciousness and arbitrariness, rule 58A-5.024(1)(p)1.a. must be construed so as to fail to establish adequate standards for agency decisions. "Sanitary" means "of or relating to health[, as in] sanitary measure."19 The challenge to rule 58A-5.024(3)(c) is to the requirement that an ALF obtain and maintain the records of third party providers of nursing services. This requirement is supported by logic and the necessary facts and is not irrational. Maintaining a set of these records at the residence of an ALF resident promotes resident welfare. Applicable only to a facility that intends to offer limited nursing services, rule 58A-5.031(2)(d) provides: Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who must be available to provide such services as needed by residents. The facility's employed or contracted nurse must coordinate with third party nursing services providers to ensure resident care is provided in a safe and consistent manner. The facility must maintain documentation of the qualifications of nurses providing limited nursing services in the facility's personnel files. Coordinating a facility's nursing services with the nursing services of a third party to ensure that resident care is provided in a safe and consistent manner is neither capricious nor arbitrary. Resident welfare is served by a rule requiring coordination between any nurse employed or contracting with a facility and a provider of third party nursing services, so this requirement is rationally related to resident care and supported by logic and the necessary facts. "Coordination" means "the process of organizing people or groups so that they work together properly and well."20 "Quality assurance" means "a program for the systematic monitoring and evaluation of the various aspects of a project, service, or facility to ensure that standards of quality are being met." "Ensure" means "to make sure, certain, or safe: guarantee."21 In addition to proposed rule 58A-5.024(1)(p)1., two rules pertain to a facility's infection control program (ICP). Rule 58A-5.0185(3)(g) provides: "All trained staff must adhere to the facility's [ICP] and procedures when assisting with the self——administration of medication." Rule 58A-5.0191(3)(a) adds: Staff who provide direct care to residents . . . must receive a minimum of 1 hour in- service training in infection control including universal precautions and facility sanitation procedures, before providing personal care to residents. The facility must use its [ICP] and procedures when offering this training. . . . Requiring the use of a facility's ICP in training or when assisting with the self-administration of medication is neither capricious nor arbitrary. These requirements are supported by logic and the necessary facts and are rational. 13. Rule 58A-5.0131(41) provides: An "Unscheduled Service Need" means a need for a personal service, nursing service, or mental health intervention that generally cannot be predicted in advance of the need for the service, and that must be met promptly to ensure within a time frame that provides reasonable assurance that the health, safety, and welfare of residents is preserved. On its face and based on its placement within a rule devoted to definitions, rule 58A-5.0131(41) is a definition. If so, an "Unscheduled Service Need" occurs: 1) when a need for a covered service arises unexpectedly and 2) the need must be met promptly to ensure the preservation of resident welfare. If the rule is a definition, an amendment making the second condition more rigorous would inure to the benefit of ALFs because fewer situations would rise to the level of an Unscheduled Service Need. For instance, there would be even fewer Unscheduled Service Needs if the second condition stated, "and that must be met promptly to save the life of a resident." Two factors suggest that rule 58A-5.0131(41) is not merely a definition. A definition is normally incorporated in another provision of law that creates rights or enforces duties. However, "Unscheduled Service Need" occurs nowhere in the Florida Statutes and nowhere else in the Florida Administrative Code. "Unscheduled Service Need" might trigger action in a resident's care plan, but few residents are required to have a care plan. The parties have treated rule 58A-5.0131(41) as though it were a definitional rule that enforces a duty. FALA has challenged rule 58A-5.0131(41) as though the initial condition-- the occurrence of an unexpected, covered need--is the definition and the duty is for the ALF to meet the need to ensure the resident's welfare. Agreeing, Respondent stated in its proposed final order: "A plain reading of the entire rule makes it clear that the rule requires a facility to respond to an unscheduled service need in a manner that does not delay addressing the residents' needs."22 Although nearly all23 of the other subsections of rule 58A-5.0131 seem to provide conventional definitions, under the circumstances, this final order will follow the parties' reading of this definitional rule, so as to include the imposition of a duty on the ALF to take prompt action to ensure the resident's welfare. Rule 58A-5.0131(41) is neither arbitrary nor capricious. It is not irrational, illogical, or unsupported by the facts to define an unscheduled service need in the manner set forth in the rule and to require an ALF promptly to meet the need to ensure that the welfare of the resident. Rule 58A-5.0131(41) is vague. On its face, it is a merely definitional rule with two conditions, but, in reality, it is a rule that encompasses a definition with but one condition and an enforceable duty imposed upon an ALF. This fact, alone, establishes vagueness. Construed as a definition with a single condition and an enforceable duty imposed on an ALF, rule 58A-5.0131(41) achieves greater vagueness. The condition, which is a condition precedent, is invariably clear, but the enforceable duty is contingent on a condition subsequent that is entirely independent from the condition precedent: i.e., the duty of the ALF arises only if its prompt discharge ensures the resident's welfare. This means that, even though the condition precedent is satisfied, the duty of the ALF is not imposed if prompt action is not required to ensure the resident's welfare--as in a minor problem that does not jeopardize the resident's welfare--or if prompt action will not ensure the resident's welfare--as in a catastrophic event, such as a massive cardiovascular event, that precludes the possibility of any action that would "ensure" the resident's welfare. The fatal ambiguity arises because the final 17 words of the rule announced, simultaneously, the mandated action by the ALF and a condition precedent to the duty to take this action. Rule 58A-5.019(3) requires that an ALF maintain a specified number of minimum staff hours per week based on a specified "Number of Residents, Day Care Participants, and Respite Care Residents" in the facility. For instance, 6 to 15 such persons require a minimum of 212 staff hours weekly, and 16 to 25 such persons require a minimum of 253 staff hours weekly. Unchallenged, rule 58A-5.0131(12) defines "Day Care Participant" as "an individual who receives services at a facility for less than 24 hours per day." The inclusion of "Day Care Participants" among the persons on whom minimum staff hours are calculated is not capricious or arbitrary. An ALF accepting Day Care Participants has assumed responsibility for the care of these persons, and the imposition of minimum staffing standards based on residents and Day Care Facilities is supported by logic and the necessary facts and is rational. 22. Rule 58A-5.0182(8)(a) and (8)(a)1. provides: Residents Assessed at Risk for Elopement. All residents assessed at risk for elopement or with any history of elopement must be identified so staff can be alerted to their needs for support and supervision. All residents must be assessed for risk of elopement by a health care provider or mental health care provider within 30 calendar days of being admitted to a facility. If the resident has had a health assessment performed prior to admission pursuant to Rule 58A-5.0181(2)(a), F.A.C., this requirement is satisfied. . . . Staff trained pursuant toRule 58A-5.0191(10)(a) or (c), F.A.C., mustbe generally aware of the location of all residents assessed at high risk for elopement at all times. Rule 58A-5.0191(10) applies to ALFs that advertise that they provide special care for persons with Alzheimer's Disease and Related Disorders (ADRD) or that maintain certain secured areas (ADRD ALFs); the rule requires that ADRD ALFs must ensure that their staff receive specialized training. Rule 58A-5.0191(10)(a) and (c) specifies the training for staff who provide direct care to, or interact with, residents with ADRD. By addressing the training received by staff, rather than whether the supervised residents suffer ADRD or whether an ALF employing the staffperson is an ADRD ALF, rule 58A-5.0182(8)(a)1. imposes higher supervisory duties strictly on the basis of the training received, at some point, when the staffperson may have been employed by an ADRD ALF. Thus, the level of supervision at an ALF that is not an ADRF ALF may vary from shift to shift and unit to unit, as the staffpersons who, at some point, received the additional training are distributed through the facility's workplace. Perhaps it is not irrational to impose a higher supervisory duty on more highly trained staffpersons, but, on these facts, rule 58A-5.0182(8)(a)1. is not supported by logic or the necessary facts. Rule 58A-5.0182(8)(a)1. is vague. A "high risk" of elopement lacks meaning. As discussed below, in Form 1823, Respondent asks in a yes-or-no format the question of whether the resident is an "elopement risk," which seems to suggest an elevated risk from the general population. A "high risk" of elopement seems to suggest an even more elevated risk, but the rule provides no means to determine the threshold, even though, with each elevation of risk from the general population, the prescribed threshold becomes less discernible. Rule 58A-5.0182(8)(a)1. is also vague because of the phrase, "generally aware of the location" of all residents at high risk of elopement. "Generally" means "in disregard of specific instances and with regard to an overall picture generally speaking."24 Treating "awareness" as synonymous with "knowledge," it is difficult to understand what is meant by general, not specific, knowledge of the location of a resident.25 The troublesome qualifier modifies the knowledge of the staff person, not the location of the resident, which raises an obvious problem as to meaning, as well as proof. By inserting "generally," the rule rejects "knowledge" or "specific knowledge" in favor of knowledge of "an overall picture generally speaking" and introduces an unworkable level of ambiguity into the requirement. Rule 58A-5.0182(8)(a) is not capricious. A rule requiring a timely assessment of elopement risk by a health care provider or mental health care provider26 is not irrational; such an exercise is not utterly senseless. But a closer question is whether this rule is supported by logic or the necessary facts. A commonly used elopement risk tool, which was included in the exhibits of FSLA and Respondent, assigns numerical values on a scale of 0 to 4 to various resident behaviors or conditions. The predictive utility of each behavior or condition is a function of the value assigned to it: a 4 has the greatest predictive value. The only behavior or condition assigned a 4 is the resident's believing that he is late for work or needs to pick up the children, thus creating an urgency to leave the ALF. Four behaviors or conditions bear a 3: the resident's becoming lost outside of the facility, thus necessitating the intervention of staff to return him to the ALF; emphatically proclaiming that she is leaving the facility or saying that she is going somewhere, coupled with an attempt to leave; suffering paranoia or anxiety about where she is, disbelieving that she lives where she lives, or attempting to leave the ALF; and repeatedly trying to open the doors of the facility. Ten27 behaviors or conditions bear a 2: the resident's having a diagnosis of dementia; becoming confused outside of the community; wandering, looking for an exit from the ALF, or attempting to leave the ALF; getting up at night and leaving the room; suffering from disorientation as to place without any anxiety or effort to leave; dressing and presenting oneself in an appropriate manner, but requiring staff supervision outside of the building; ambulating, but unsafe outside without supervision; using assistive devices, but unsafe outside without supervision; presenting as unsafe when outside alone; and taking walks, but requiring redirection to the entrance of the building or back to the property. Five behaviors or conditions bear a 1: the resident's displaying evidence of early dementia; wandering at times, but not expressing a desire to leave the ALF or trying to leave the ALF; verbalizing the desire to be elsewhere; suffering occasional disorientation as to time and place, but reorienting easily; and presenting a disheveled and disorganized appearance, so as not to be confused for a visitor or staffperson. Nine behaviors or conditions bear a 0: the resident's having no diagnosis of dementia; having no history of elopement; not wandering; not verbalizing a need to leave the ALF; sleeping all night or getting up occasionally and not leaving the room; displaying orientation to time and place; dressing and presenting self in an appropriate manner and not requiring staff supervision outside of the building; ambulating or propelling self in wheelchair safely; and presenting no other behaviors associated with memory impairment. The elopement risk tool is completed by an ALF employee who is neither a health care provider nor or a mental health care provider. Of the 30 predictive factors, essentially only one, involving dementia, requires a medical or psychiatric diagnosis. It is, of course, not necessary to solicit from the health care provider an elopement risk assessment in order to obtain her opinion as to dementia. More importantly, overshadowing the dementia predictors to the point of near elimination are high- value predictors involving current behaviors, historic behaviors, and, most importantly, the perceived need to leave the facility to get to work or discharge domestic duties. Of these, the health care provider would have no direct knowledge, so her assessment of elopement risk would either be based on insufficient information or hearsay whose precise accuracy would be doubtful. On these facts, the requirement in rule 58A-5.0182 (8)(a) for a health care provider or mental health provider to assess a resident's elopement risk is unsupported by logic and the necessary facts. Rule 58A-5.0181(2)(b) incorporates Form 1823, which is divided into four sections. Sections 1, 2-A, and 2-B must be completed by a licensed health care provider. Section 3 must be completed by the ALF. The end of the form provides lines for the signatures of the resident and ALF. Under the signature of the resident, but not the ALF, the form states: "By signing this form, I agree to the services identified above to be provided by the [ALF] to meet identified needs." Section 1 is a "Health Assessment" that elicits information about allergies, medical history, height and weight, physical or sensory limitations, cognitive or behavioral status, nursing, treatment or therapy recommendations, special precautions, and "elopement risk." For all items except elopement risk, the form provides a block for comments; for elopement risk, the form provides only two boxes: one marked "yes" and one marked "no." Section 1.A asks: "To what extent does the individual need supervision or assistance with the following?" Seven activities of daily living (ADLs) are listed: ambulation, bathing, dressing, eating, self care (grooming), toileting, and transferring. Boxes allow the health care provider to pick one of four levels from independent to total care. The form also provides a block for comments beside each ADL. Section 1.B is: "Special Diet Restrictions." Four boxes are listed: regular, calorie controlled, no added salt, and low fat/low cholesterol. There are two lines for other dietary restrictions. Section 1.C asks: "Does the individual have any of the following conditions/requirements? If yes, please include an explanation in the comments column." Five items are listed: communicable disease, bedridden, pressure sores other than stage 1, "Pose a danger to self or others? (Consider any significant history of physically or sexually aggressive behavior.)," and 24 hour nursing or psychiatric care. The form provides a box for "yes/no" and a block for comments. Section 1.D asks: "In your professional opinion, can this individual's needs be met in an [ALF], which is not a medical, nursing, or psychiatric facility?" The form provides a box for "yes" and a box for "no," as well as a line for additional comments. Section 2-A is "Self-Care and General Oversight Assessment." Section 2-A.A is "Ability to perform Self-Care Tasks" and lists five tasks: preparing meals, shopping, making phone calls, handling personal affairs, handling financial affairs, and other. Boxes allow the health care provider to select one of three levels from independent to needs assistance. The form also provides a block for comments beside each task. Section 2-A.B is "General Oversight" and lists three tasks: "observing wellbeing," "observing whereabouts," "reminders for important tasks," and four spaces for "other." Boxes allow the health care provider to select one of four levels: independent, weekly, daily, and other. The form also provides a block for comments beside each task. Section 2-A.C is three lines for additional comments or observations. Section 2-B is "Self-Care and General Oversight Assessment--Medications." Section 2-B.A provides blocks for listing individual medications, dosages, directions for use, and route of administration. Section 2-B.B asks: "Does the individual need help with taking his or her medications (meds)?" The form provides a box for "yes" and a box for "no" with a direction, if yes is marked, to check one of the following three boxes: able to administer without assistance, needs assistance with self-administration, and needs medication administration. Section 2-B.C provides two lines for additional comments or observations. Immediately following Section 2-B is a section that requires identifying information about the health care provider and the date of the examination. Section 3 requires the ALF to identify the needs set forth in Sections 1 and 2 and provide the following information in blocks: identified needs, services needed, service frequency and duration, service provider name, and initial date of service. Form 1823 is mentioned in rule 58A-5.0181(2)(b) through (d), which describes the required medical examination based on when it takes place relative to admission or whether it follows a placement by Respondent, Department of Children and Families (DCF), or one of their private contractors. The rule states: HEALTH ASSESSMENT. As part of the admission criteria, an individual must undergo a face-to-face medical examination completed by a health care provider as specified in either paragraph (a) or (b) of this subsection. A medical examination completed within 60 calendar days before the individual’s admission to a facility pursuant to section 429.26(4), F.S. The examination must address the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations, An evaluation of whether the individual will require supervision or assistance with the activities of daily living, Any nursing or therapy services required by the individual, * * * 7. A statement on the day of the examination that, in the opinion of the examining health care provider, the individual’s needs can be met in an assisted living facility[.] * * * A medical examination completed after the resident’s admission to the facility within 30 calendar days of the admission date. The examination must be recorded on AHCA Form 1823, Resident Health Assessment for Assisted Living Facilities, March 2017 October 2010 . . . . The form must be completed as instructed. Items on the form that have been omitted by the health care provider during the examination may be obtained by the facility either orally or in writing from the health care provider. Omitted information must be documented in the resident’s record. Information received orally must include the name of the health care provider, the name of the facility staff recording the information, and the date the information was provided. Electronic documentation may be used in place of completing the section on AHCA Form 1823 referencing Services Offered or Arranged by the Facility for the Resident. The electronic documentation must include all of the elements described in this section of AHCA Form 1823. Any information required by paragraph (a), that is not contained in the medical examination report conducted before the individual’s admission to the facility must be obtained by the administrator using AHCA Form 1823 within 30 days after admission. Medical examinations of residents placed by the department, by the Department of Children and Families, or by an agency under contract with either department must be conducted within 30 days before placement in the facility and recorded on AHCA Form 1823 described in paragraph (b). For the same reasons that rule 58A-5.0182(8)(a) is arbitrary, but not capricious, the yes-or-no question as to elopement risk in section 1 is arbitrary, but not capricious. The record lacks counterparts to the elopement assessment tool for the remaining items under challenge from the Form 1823, so it is necessary to obtain from the CMS Documentary Guidelines the scope of a typical medical examination to address whether the challenged items in the Form 1823 are supported by logic and the necessary facts. A medical examination may cover any of ten organ systems or areas: cardiovascular; ears, nose, mouth, and throat; eyes; genitourinary; hematologic/lymphatic/immunologic; musculoskeletal; neurological; psychiatric; respiratory; and skin. Each organ system or area comprises several elements. Medical examinations may vary as to their scope. Between the two types of general multi-system medical examinations that are not focused on a particular problem, the less exhaustive examination, which is "detailed," typically requires an examination of at least a dozen elements spanning two to six organ systems or areas. If a multi-system medical examination includes a psychiatric examination, the examination typically involves no more than a "description of patient's judgment and insight" and "brief assessment of mental status including: orientation to time, place and person[;] recent and remote memory[; and] mood and affect (eg, depression, anxiety, agitation)[.]" Even a full psychiatric examination encompasses only the following elements: Description of speech including: rate; volume; articulation; coherence; and spontaneity with notation of abnormalities (eg, perseveration, paucity of language) Description of thought processes including: rate of thoughts; content of thoughts (eg, logical vs. illogical, tangential); abstract reasoning; and computation Description of associations (eg, loose, tangential, circumstantial, intact) Description of abnormal or psychotic thoughts including: hallucinations; delusions; preoccupation with violence; homicidal or suicidal ideation; and obsessions Description of the patient's judgment (eg, concerning everyday activities and social situations) and insight (eg, concerning psychiatric condition) Complete mental status examination including Orientation to time, place and person Recent and remote memory Attention span and concentration Language (eg, naming objects, repeating phrases) Fund of knowledge (eg, awareness of current events, past history, vocabulary) Mood and affect (eg, depression, anxiety, agitation, hypomania, lability) However, a full psychiatric examination would unlikely meet the reasonable expectations of Respondent or ALFs of a medical examination because it excludes consideration of any nearly all other organ systems or areas. The inquiry in Section 1.A about ADLs is not capricious, but is arbitrary as to some items. The scope of a typical medical examination will yield no information about a patient's ability to bathe, dress, groom, or toilet. The scope of a typical medical examination may yield some information about a patient's ability to ambulate, eat (as to swallowing), and transfer between a bed, chair, wheelchair, scooter, and car, and the health care provider should be able to rate the extent of the ability of the patient to perform each of these ADLs. Requiring the health care provider to rate the extent of the ability of the patient to perform any of the other ADLs is therefore not supported by logic or the necessary facts. The inquiry in Section 1.C about whether the patient poses a danger to self or others and directive to consider any significant history of physically or sexually aggressive behavior is arbitrary, but not capricious. Although a psychiatric examination would include a determination of whether the patient suffers from homicidal or suicidal ideations, a psychiatric examination is unlikely to take the place of a conventional medical examination, whose inclusion of limited psychiatric elements would not yield a reasonable basis for opining whether the patient poses a danger to self or others. Nor does the record suggest that the medical examinations of the type conducted for the admission of the patient to an ALF are conducted by psychiatrists, physician assistants specializing in psychiatry, or advanced registered nurse practitioners specializing in psychiatry. This finding necessitates the invalidation of the directive to consider significant history of physically or sexually aggressive behavior in responding to the question--a directive that is meaningless without the question of whether the patient poses a danger to self or others. The inquiry in Section 1.D about whether, in the "professional opinion" of the health care provider, the patient's needs can be met in an ALF that is not a medical, nursing, or psychiatric facility is arbitrary, but not capricious. No ALF is a medical facility, which likely means a hospital; nursing facility, which likely means a skilled nursing facility; or psychiatric facility, which likely means a psychiatric hospital. The addition of this information, which is superfluous to anyone who understands the nature of ALFs, reveals the concern of AHCA or Respondent that the health care providers lack even this basic knowledge of the nature of ALFs. Due, in fact, to their lack of knowledge of the specific features of an ALF, health care providers lack the foundation to answer this question intelligently. The request in section 2-A.A about the ability of the patient to perform self-care tasks and the request in section 2-A.B about the need of the patient for general oversight, are arbitrary, but not capricious, for the same reasons as set forth concerning the ADLs of bathing, dressing, grooming, and toileting. Section 3 is neither arbitrary nor capricious. The collection of needs identified in the preceding sections and identification of services to meet these needs, as well as the additional information, are not irrational and are supported by logic and the necessary facts. Due to section 3, the requirement that the resident and ALF sign the Form 1823 is neither arbitrary nor capricious. By signing, the resident explicitly agrees to receive the identified services, and the ALF implicitly agrees to provide the identified services; so it is not irrational or unsupported by logic or the necessary facts to require both parties to sign the Form 1823. However, if section 3 were invalidated, as it is below, the requirement of the signatures of the patient and ALF would be irrational and unsupported by logic and the necessary facts because there is no reason for the patient or ALF to sign a medical examination form, that does not also contain a statement of the services to be provided by the ALF. The only signature on a medical examination form that might rationally be required would be that of the health care professional in order to authenticate the completed form. A "form" is "the shape and structure of something as distinguished from its material--the building's massive form"; or "a printed or typed document with blank spaces for insertion of required or requested information tax forms."
