The Issue The issues in these cases for determination are whether Respondent Elham Kharabi, A.P., L.M.T, committed the violations alleged in two Administrative Complaints issued by the Department of Health on March 14, 2005, in DOAH Case No. 06- 4117PL, and on November 8, 2006, in DOAH Case No. 06-4491PL; and, if so, what disciplinary action should be taken against his license to practice acupuncture and his license to practice massage therapy in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the “Department”), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving the practice of acupuncture and massage therapy in Florida. § 20.43, and Chs. 456, 457 and 480, Fla. Stat. Respondent, Elham Kharabi (identified as Elham Kharabi- Moghaddam by the Board of Massage Therapy), A.P., L.M.T, is and was at all times material to this matter, licensed by the Board of Acupuncture as an acupuncturist, having been issued license number 1890 on November 7, 2003, and by the Board of Massage Therapy as a licensed massage therapist, having been issued license number 0013944 on January 29, 1993. Respondent's mailing address of record at all times relevant to this matter is Post Office Box 451342, Miami, Florida 33245. Respondent's clinic is located at 2808 Bird Avenue, Miami, Florida 33133. No evidence that Respondent has previously been the subject of a license disciplinary proceeding was offered. Respondent’s Treatment of Patient U.C. At the times material to this matter, Respondent operated as "Miami’s Clinical of Oriental Medicine" (hereinafter after referred to as the "Clinic"), located in Coconut Grove, Miami, Florida. U.C., a single, 34-year-old mother, visited the Clinic in June 2004 (hereinafter referred to as "Patient U.C."). Patient U.C. visited the Clinic because she was suffering from depression and fatigue and thought that acupuncture might help her. On her first visit Patient U.C. spoke briefly with Respondent and was given a pamphlet. After this first meeting, Patient U.C. called Respondent and made an appointment for treatment. Patient U.C.’s first formal appointment with Respondent was a free consultation which took place on June 29, 2004. During the consultation visit, Patient U.C. completed a Comprehensive Acupuncture Examination form, in which she described her "Major Complaints" as "depression, fatigue, inability to concentrate & focus, lethargy, moody, irritable, too sensitive & emotional." Respondent's Exhibit 3. Patient U.C. also indicated on the form that she had experienced the following "Nuerological" problems: "nervousness, depressed, easily angered, easily irritated, frequent crying, numbness/tingling in limbs, poor coordination, muscle weakness, and feel weak and shaky." She did not, however, mean that she was suffering from all of these problems at the time she competed the form. Rather, she simply listed every symptom she had ever experienced during her lifetime. After Patient U.C. had completed the Comprehensive Acupuncture Examination form, Respondent conducted a patient interview with her, which he memorialized in a Patient Interview form. Respondent’s Exhibit 4. Respondent determined a plan of treatment for Patient U.C., which he memorialized on the Patient Interview form. Respondent's plan of treatment consisted of: "Tui Na, LR3, LI4, SJ5, GB41, Yin Tang, R17." Based on Respondent’s testimony describing these treatments, none required touching of Patient U.C.'s anus or vagina. Respondent completely identified his plan of treatment and there was no testimony indicating that it was inadequate. After the patient interview, Respondent advised Patient U.C. that he could treat her "Major Complaints" with Chinese medicine. Respondent, with Patient U.C.'s agreement, performed a complete massage (while Patient U.C. and Respondent characterized the treatment differently, the procedure involved manipulation of Patient U.C.'s body and will be referred to throughout this Recommended Order as "massage" for ease of reference) and acupuncture on Patient U.C. after their initial discussions on June 29, 2004. Patient U.C. was unclothed, except for her underwear, during the massage. Having experienced a number of massages by male therapists in the past, Patient U.C. felt comfortable receiving the massage from Respondent. On June 30, 2004, Patient U.C. returned to the Clinic to pay for her first visit and future planned visits. On July 6, 2004, Patient U.C. presented to the Clinic for her second appointment. During this visit, she received the same treatment as she had during the first appointment. While at the Clinic, Respondent advised Patient U.C. that she needed treatment on a daily basis and encouraged her to come to the Clinic daily. Respondent told Patient U.C., who was concerned about cost, that she could come in any time and that he would not charge her for her sessions. Patient U.C. declined Respondent's offer and indicated that she would only come for her scheduled paid-for weekly appointments. On July 13, 2004, Patient U.C. went to the Clinic for her third visit, which had been paid for in advance. Patient U.C. complained to Respondent of pain in her jaw and the left side of her buttocks, radiating down her leg. After rubbing or manipulating Patient U.C.'s jaw, Patient U.C. removed her clothing, except for her underwear, while Respondent left the room. When Respondent returned, he began treatment of Patient U.C.’s left buttock. Respondent massaged Patient U.C.'s left buttock, moving his oiled hands rapidly on her buttock while applying heavy pressure. Patient U.C., concerned that her underwear was hampering Respondent's efforts, offered to remove them. Respondent agreed and Patient U.C. removed her underwear. Respondent recommenced his treatment, massaging Patient U.C.'s left buttock rapidly and forcefully. At some point, Patient U.C. felt Respondent remove his finger from her anus. Because Patient U.C. was lying on her stomach at the time and, therefore, was not able to see exactly what had happened, she was cautious in her testimony at hearing. The weight of her testimony, however, proved that, while Patient U.C. was unable to say that she felt Respondent's finger enter her anus, she was able to feel him removing his finger from her anus. After realizing that Respondent had inserted his finger into her anus and then removed it, Patient U.C. was confused and unsure of what to do. Patient U.C. described her feelings at hearing: Q. What did you do when you felt that? A. Nothing. I was shocked. It didn't make sense to me. How could I feel this thing coming out of my butt if I didn't feel it . . . being inserted? I was confused. It just didn't make sense and I though you know it is probably an accident, a mistake because there is oil and he did massage vigorously and it was fast, but I did not do anything. Transcript, Vol. I, Page 61, Lines 16-24. After Respondent completed massaging Patient U.C., he placed acupuncture needles in her buttocks and left the room. Respondent returned a few minutes later and removed the needles. After removing the needles, Respondent had Patient U.C. turn over on her back and he began massaging her right thigh. While massaging Patient U.C.’s thigh, he inserted his finger into her vagina and briefly moved it back and forth several times. Again, Patient U.C. did not respond to Respondent's inappropriate conduct, instead deciding to avoid having "to deal with it." Instead, she "just pretended that it wasn't going on, that it didn’t happen. I just pretended that it didn't happen." Transcript, Vol. I, Page 65. When Patient U.C. did not respond to this second unwanted touching, Respondent removed his finger and returned to appropriate treatment, inserting acupuncture needles in Patient U.C. Following this treatment, Respondent removed the acupuncture needles and left the room. Patient U.C. got up from the treatment table, dressed, and left the clinic without confronting Respondent about putting his finger in her anus and her vagina. Patient U.C. did not confront Respondent because she just wanted to leave the Clinic and pretend that Respondent had not violated her. Events Following Respondent’s July 13, 2004, Treatment of Patient U.C. Patient U.C. went home immediately after her July 13, 2004, visit to the Clinic and called William Parente, her boyfriend at the time. She was unable, however, to tell Mr. Parente what had happened because he was at lunch with other people. After talking briefly with Mr. Parente, Patient U.C. took a shower, ate, and went to work. Later that day, Patient U.C. spoke to Mr. Parente and described the events that had taken place at the Clinic that day. According to Mr. Parente, Patient U.C. was very distraught and, from the sound of her voice, had been crying. During the evening of July 13, 2004, Patient U.C. experienced pain in her anus. The pain had intensified by the next morning. Therefore, Patient U.C. went to the Health Clinic at the University of Miami, where she was a second-year law student. Personnel at the clinic advised patient U.C. to go to the Jackson Memorial Rape Treatment Center (Jackson). On July 14, 2004, at approximately 9:00 a.m., Patient U.C. presented to Jackson for treatment. Patient U.C.'s vagina and pelvic area were examined by a physician, who took a specimen. No lacerations or lesions were found. The specimen was forward to law enforcement. The physician also examined Patient U.C.'s anus. During this examination, Patient U.C. felt an uncomfortable burning pain in her anus. Because of the pain, she asked the physician to discontinue the examination. Although the examination of Patient U.C.’s anus was terminated, a specimen was also obtained from her anus and forwarded to the police. After completion of the examination at Jackson, Patient U.C. was referred to the police and to the Journey Institute for counseling services. Patient U.C. immediately went to the Miami-Dade Police Department to make a report. She also sought assistance from the Journey Institute. Two days after the incident, Patient U.C. also reported the incident to a friend, Luis Yllanes. When Mr. Yllanes spoke to her, Patient U.C. was visibly upset. She trembled when Patient U.C. told Mr. Yllanes the specifics of what occurred in Respondent’s office. On July 19, 2004, Patient U.C. called her psychiatrist, Manuel Rodriguez-Garcia, M.D. Patient U.C. called to request a prescription for medications because she was depressed following the incident. Dr. Garcia prescribed Wellbutrin, an anti-depressant. The Reliability of Patient U.C.’s Recollection. Patient U.C. had been sexually abused over approximately a two-year period by her uncle when she was 16 to 17 years of age. She was also raped by a neighbor in the neighbor's house when she was a teenager. When she reported her uncle's abuse, her family, rather than being supportive, made her feel as if it was her fault. In addition to the sexual abuse she suffered, Patient U.C. was physically and emotionally abused by her brother. Beginning in 1998, Patient U.C. sought the medical assistance of Dr. Garcia, a board-certified psychiatrist. Dr. Garcia treated Patient U.C. from 1998 through March 22, 2005. (Having asserted her psychiatrist-patient privilege in relation to psychiatric records which substantially predate the allegations made in these cases, Dr. Garcia was limited to relating his treatment of Patient U.C. beginning May 30, 2003.) As of May 30, 2003, Patient U.C. was diagnosed as suffering from attention deficit disorder (hereinafter referred to as "ADD") and depressive disorder with anxiety. Patient U.C. was not exhibiting any symptoms of psychosis. ADD is a congenital disorder that makes its sufferer distractible, with poor concentration. Dr. Garcia prescribed Ritalin to Patient U.C. to treat her ADD. He also prescribed Lexapro (an anti- depressant) and Ambien to help Patient U.C. sleep at night. As of September 29, 2003, Patient U.C. continued to suffer from ADD and depressive disorder with anxiety. Patient U.C. told Dr. Garcia during the September 29, 2003, visit that "something is wrong with my brain." She was concerned because she had driven into the parking lot of one store when she had intended to go to another one. Dr. Garcia was not concerned about this incident or her comment. He found that Patient U.C. was not suffering from any dementia, delirium, confusion, disassociative states, or organic deficits and that she was oriented on life's decisions. Finding that Patient U.C. did not have anything "wrong with her brain," Dr. Garcia concluded that she was simply having difficulty concentrating, a symptom of her ADD. Finally, Dr. Garcia found that Patient U.C. was not exhibiting any signs of psychosis as of September 29, 2003. Patient U.C. visited Dr. Garcia’s office again on May 7, 2004. At Patient U.C.’s request, Dr. Garcia wrote her a prescription for Adderall to replace her prescription for Ritalin. Patient U.C. failed to go to her next scheduled appointment with Dr. Garcia on June 29, 2004. Patient U.C. had begun to believe that she was not getting better, despite the medications prescribed by Dr. Garcia. Consequently she had stopped taking those medications (Adderall, Ritalin, and Ambien) two or three months before the July 13, 2004, incident. Patient U.C. did not inform Dr. Garcia of her actions. In addition to suffering from ADD and depressive disorder with anxiety, and the difficulty of raising a child as a single mother while attending law school, Patient U.C. was subjected to a serious of stressful events preceding the July 13, 2004, incident: her mother was diagnosed with a brain tumor, her father was seriously ill, her brother was indicted on criminal charges, and her sister had attempted suicide. Despite Patient U.C.'s medical problems, Patient U.C. was not suffering from Post-Traumatic Stress Disorder (hereinafter referred to as "PTSD") on or before July 13, 2004. Nor did Patient U.C. misperceive the events of July 13, 2004. Those events, as found, supra, were accurately recalled and testified to by Patient U.C. The testimony of Merrysue Haber, Ph.D., suggesting that Patient U.C. suffered from PTSD, and that she may have suffered a PTSD event or "flashback" on July 13, 2004 was not convincing. Dr. Haber's suggestion that Patient U.C. could have misperceived what had actually taken place on July 13, 2004, because of the sexual abuse she had suffered as a teenager, the stress that Patient U.C. was experiencing at the time, and the intensification of her psychological problems when Patient U.C. stopped taking her prescription medications is rejected. Dr. Haber's testimony is rejected for a number of reasons. First, and most importantly, her testimony is rejected because her opinions were inconsistent with those of Dr. Garcia, who did not diagnose Patient U.C. as suffering from PTSD prior to July 13, 2004. During the period that Dr. Garcia treated Patient U.C., he never found her to be suffering from hallucinations or bipolar disorder, or to be exhibiting any signs of psychosis. At no time was there any interaction between Dr. Garcia and Patient U.C. that led him to “think that she could be psychotic, that she could have a delirium or a problem with perception.” Transcript, Vol. II, Page 202, Lines 12 through 16. Dr. Garcia had personally met with Patient U.C. and diagnosed her condition, while Dr. Haber has never spoken to Patient U.C. Having failed to find that Patient U.C. was suffering from PTSD prior to or on July 13, 2004, any suggestion by Dr. Haber that Patient U.C. suffered from PTSD on the critical date is not credited. In further support of these findings, it is noted that Dr. Haber relied, at least in part, on the medical records of Roger Rousseau, M.D., of the Journey Institute, the institution Patient U.C. had been referred to by Jackson personnel. Dr. Rousseau, while diagnosing Patient U.C. with "chronic" PTSD, did not see Patient U.C. until after the events of July 13, 2004. Dr. Haber's reliance on Dr. Rousseau's diagnosis is, therefore, misplaced. Dr. Haber's testimony concerning the possible impact of Patient U.C.'s discontinuation of her medicines prior to July 13, 2004, is also rejected as inconsistent with Dr. Garcia's testimony. Based upon Dr. Garcia's credited testimony, it is found that Patient U.C.'s discontinuance of here medications would not have altered Patient U.C.’s perception of reality. At most, she would merely have experienced a resurgence of the symptoms of her ADD and depression, not psychosis. While Patient U.C. could have experienced an increased difficulty concentrating and her depression may have worsened, she would not have experienced withdrawal symptoms associated with discontinuing her medications and would not have exhibited new symptoms like hallucinations. Finally, even it had been proved that Patient U.C. was suffering from PTSD on July 13, 2004, the evidence proved that it is highly unlikely that she would have continued to insist that events which she supposedly misperceived on July 13, 2004, actually occurred. PTSD is a condition or disorder where a person may experience a variety of signs and symptom, including vivid memories of a traumatic event, an inability to function, anxiety, depression, and hypersensitivity (ultra-sensitivity to stimuli that remind the person of the traumatic event). Persons suffering PTSD may suffer some or all of the foregoing symptoms. Although not common, a person suffering PTSD can relive the traumatic event; experience a "flashback." Even when a person experiences a flashback or relives the traumatic event, the feeling of reliving the event does not last and the person realizes that the event did not actually recur. Dr. Garica gave the example of a combat soldier's reaction to an automobile back-firing. The soldier may flinch, but will quickly realize there is no real danger. Patient U.C. never reported any flashback relating to her sexual abuse as a teenager to Dr. Garcia. Having given birth to a child, she has obviously had sexual relations; she has not had any difficulty being undressed while receiving a massage; and she was not concerned about suggesting to Respondent that she take off her underwear when she realized her underwear was hampering his treatment of her on July 13, 2004. Based upon the foregoing, while it is obvious that Patient U.C. is not without problems, the evidence failed to prove that she was in any way unable to accurately understand and subsequently relate the events of July 13, 2004, as found in this Recommended Order. Respondent's Acupuncture Medical Records. Having denied that he placed his finger in Patient U.C.'s anus or vagina, Respondent obviously did not record any medical justification in his medical record for Patient U.C. for doing so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Acupuncture finding that Elham Kharabi, A.P., has violated Section 456.072(1)(u), Florida Statutes, by violating Section 456.063(1), Florida Statutes, and Section 457.109(1)(j), Florida Statutes (2004), as alleged in Counts One and Two of the Administrative Complaint; dismissing the allegations of Count Three of the Administrative Complaint; issuing a written reprimand; imposing a fine of $1,000.00; suspending Respondent's acupuncture license for six months; and placing Respondent's license on probation for two years with terms to be set by the Board of Acupuncture; and That a final order be entered by the Board of Massage Therapy finding that Elham Kharabi-Moghaddam, L.M.T., has violated Section 480.046(1)(o), Florida Statutes, by having violated Section 480.0485, Florida Statutes; issuing a written reprimand; imposing a fine of $1,000.00; suspending Respondent's massage therapy license for six months; and placing Respondent's license on probation for a period of two years, with terms to be set by the Board of Massage Therapy. DONE AND ENTERED this 23rd day of July, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 23rd day of July, 2007. COPIES FURNISHED: Allison M. Dudley Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 David M. Shenkman, Esquire David M. Shenkman, P.A. 2701 South Bayshore Drive, Suite 602 Miami, Florida 33133 Pamela King, Executive Director Board of Acupuncture and Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues are whether Respondent failed to submit to background screening, as required by sections 456.0135(1) and 480.041(6), Florida Statutes (2014), and, if so, what penalty should be imposed, pursuant to sections 480.046(1) and 456.072(2).
Findings Of Fact Respondent is a licensed massage therapist, holding license MA 48309. Respondent has been continuously licensed since October 2, 2006, renewing her license every two years. Respondent has not previously been disciplined. Respondent has discontinued providing massage services. As detailed in the Conclusions of Law, by January 31, 2015, existing licensees were required to submit to the background screening requirements of section 456.0135. Each existing licensee was required to submit to Petitioner their fingerprints taken by a live scan vendor that makes, stores, and transmits the fingerprints electronically without the necessity of a hard copy. Petitioner provided considerable support to persons required to comply with this new requirement. Respondent never submitted her fingerprints to a live scan vendor, although, at some point, she seems to have submitted her fingerprints in hard copy form to the Department of Financial Services for an unrelated purpose. Given Petitioner's repeated efforts to induce compliance with the electronic-fingerprinting requirement, it is impossible to credit Respondent's claim that she thought that she had complied when she submitted hard-copy fingerprints to an unrelated state agency. Obviously, Respondent has been aware for over two and one-half years that Petitioner has never received her electronic fingerprints and has done nothing. Treating Respondent's noncompliance as cause for discipline, but not nonrenewal, Petitioner renewed Respondent's license in 2017, but also commenced this proceeding. Notwithstanding a two-year delay in transmitting the file to DOAH, Respondent still has not obtained electronic fingerprints to comply with this requirement. The inference is inescapable that Respondent has displayed a complete lack of interest in maintaining her license.
Recommendation It is RECOMMENDED that the Department of Health enter a final order imposing a $500 fine and suspending Respondent's license until she has submitted all of the required background screening materials, including electronic fingerprints through an approved vendor. DONE AND ENTERED this 14th day of May, 2020, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Dannie L. Hart, Esquire S ROBERT E. MEALE 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 14th day of May, 2020. Department of Health, Prosecution Services Unit Office of General Counsel 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Maria Nadal-Cabral 1200 Northwest 185th Avenue Pembroke Pines, Florida 33029 Christina Arzillo Shideler, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
