01-002499 Leroy V. Copeland vs. Department Of Health, Board Of Medicine Status: Closed Recommended Order on Monday, October 8, 2001.

Summary: Board of Medicine was justified in requiring Petitioner to undergo evaluation prior to license reinstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEROY V. COPELAND, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2499

)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on August 17, 2001, by

Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, by video teleconference in

Tallahassee, and Daytona Beach, Florida.

APPEARANCES

For Petitioner: Paul Kwilecki, Jr., Esquire

62 9 North Peninsula Drive

Daytona Beach, Florida 32118

For Respondent: Lee Ann Gustafson, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Petitioner's medical license should be reinstated.

PRELIMINARY STATEMENT

On or about February 22, 2001, Petitioner filed a Petition

to Reinstate License Suspension Stay/Approve New Monitoring

Physician with the Department of Health, Board of Medicine

(hereinafter "Board"). On May 3, 2001, the Board entered an

Order denying Petitioner's Request for Rei nstatement and

requiring Petitioner to undergo an evaluation with the UFCARES

program prior to reapplication for reinstatement.

Petitioner filed a Petition and Request for Administrative

Hearing on or about May 17, 2001. The Petition was forwarded to

the Division of Administrative Hearings on or about June 27,

2001. A formal hearing was scheduled for August 17, 2001, via

video teleconference.

At hearing, Petitioner testified on his own behalf.

Petitioner's Exhibit numbered 1 was admitted into evidence.

Respondent presented testimony of two witnesses, Crystal Griffin

and Thomas Sweat. Respondent's composite Exhibits numbered 1 - 3

were admitted into evidence.

A transcript consisting of one volume was filed on

September 17, 2001. The parties timely filed Proposed

Recommended Orders which have been considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

Stipulated Facts

1. By Final Order issued in Case No. 92 - 011898, filed

February 16, 1995, Respondent adopted a consent agreement.

2. The Administrative Complaint in the case charged

Petitioner with violations of Subsections 458.331(m)(q) and (t),

Florida Statutes.

3. The Final Order placed Petitioner on probation for a

period of 3 years under the indirect supervision of another

l icensed physician, and imposed reporting requirements and review

of medical records. The Final Order also required Petitioner to

pay a fine of $5,000, to be paid in installments; complete five

hours of continuing medical education in risk management and 1 0

hours of continuing medical education (hereinafter "CME") in pain

management prior to February 16, 1996; complete a medical records

course offered by the Florida Medical Association (hereinafter

"FMA course") and a course on prescription drugs offered b y the

University of South Florida (hereinafter "USF course") during the

first year of probation. Finally, Petitioner was restricted

concerning the prescription of Schedule II controlled substances.

4. By correspondence dated February 17, 1995, Petition er

was notified that his first appearance before Respondent's

Probation Committee (the Committee) was scheduled for March 16,

1995. Petitioner was reminded that he could not practice

medicine until his supervising physician (hereinafter "monitor")

was app roved.

5. By separate correspondence dated February 17, 1995,

Petitioner was provided with brochures for the USF and FMA

courses. Petitioner was advised that the USF course fills up

quickly.

6. On March 10, 1995, Pauline Gray, M.D., notified the

Age ncy for Health Care Administration (AHCA) that she would serve

as Petitioner's monitor.

7. On March 16, 1995, the Committee met. Petitioner

advised the Committee that Dr. Gray was ill and unable to attend

the meeting, although her appearance was a cond ition of the Final

Order. Petitioner acknowledged that he had been practicing

medicine, although his monitor had not been approved; Petitioner

further acknowledged receipt of the February 17, 1995

correspondence advising him he could not practice without an

approved monitor. Petitioner was advised by the Committee to

cease practicing until a monitor was approved.

8. On March 29, 1995, Dr. Gray advised the Department that

while she had been ill, she had not stopped practicing, and

continued to be willin g to serve as Petitioner's monitor.

9. On March 31, 1995, the Department advised Petitioner

that his first installment payment on his fine was delinquent.

10. On April 3, 1995, Petitioner advised an AHCA

investigator that he did not recall being told to cease

practicing, and acknowledged that he had continued to practice

after the Committee meeting. Petitioner suggested that his need

for a hearing aid could cause confusion.

11. On April 6, 1995, the Department acknowledged receipt

of Petitioner's sample prescription form for Schedule II

controlled substances, and was again reminded that he could not

practice medicine until his monitor was approved.

12. On April 10, 1995, the Department by correspondence

again advised Petitioner to cease practice until his monitor was

approved; at the request of Respondent, Petitioner was asked to

submit an explanatory letter from Dr. Gray concerning her illness

and her ability to monitor Petitioner.

13. At the May 18, 1995 meeting of the Committee,

Dr. Jeffrey Brooks was approved as Petitioner's monitor.

14. On May 30, 1995, the Board issued its order clarifying

the terms of Petitioner's probation, advising that monitor

reports were to be made on a quarterly basis.

15. On March 14, 1996, Petitioner was granted an extension

of time to complete his CME requirements.

16. On March 20, 1996, Petitioner was provided with sources

for the required CME.

17. On March 22 and April 1, 1996, the Department requested

immediate submission of three delinquent reports from Petitioner.

18. On April 16, 1996, a Final Order in Case No. 95 - 13102

was entered. The Administrative Complaint charged that

Petitioner practiced medicine without a monitor in violation of

the previous Final Order.

19. In this Final Or der, Petitioner was placed on six

months' suspension, with the suspension stay conditioned on his

compliance with the Final Order issued in Case No 92 - 01898. The

Final Order also imposed an additional fine of $1,000.00, due on

June 16, 1996, and required Petitioner to successfully complete a

laws and rules examination by October 16, 1996.

20. On April 24, 1996, Respondent issued an Order granting

Petitioner's request for modification of the terms of the Final

Order in Case No. 92 - 10898. Petitioner was granted an extension

of time until October 23, 1996, to complete the risk management

and pain management CMEs required, and an extension until

December 1, 1996, to complete the USF course.

21. By correspondence dated April 29, 1996, the Department

co nfirmed for Petitioner the new due dates for the CME and USF

drug course.

22. On May 10, 1996, the Department requested delinquent

reports from Petitioner.

23. On May 16, 1996, Petitioner submitted probationer

reports due November 15, 1995, February 15, 1996 and May 15,

1996.

24. Petitioner completed the laws and rules examination on

September 19, 1996.

25. As of October 9, 1996, Petitioner had not yet made

arrangements to complete the CME and the FMA and USF courses, due

October 23, 199 6 and December 1, 1996, respectively.

26. In February 1997, Petitioner was notified his

November 15, 1996 probationer report was delinquent, and he

explained he forgot the report.

27. On March 20, 1997, Petitioner appeared before the

Committee and was granted an extension of one year to complete

his delinquent CME and the FMA and USF courses.

28. On April 29, 1997, Petitioner was provided brochures

for the FMA records and USF drug courses and advised to register

immediately.

29. O n September 18, 1997, the committee temporarily

approved Dr. Stephen Spore to act as Petitioner's new monitor.

He was approved on November 13, 1997.

30. On December 6, 1997, Petitioner completed the FMA

course.

31. On April 7, 1998, the Department f iled a Uniform

Complaint with AHCA regarding Petitioner's failure to pay his

fine and failure to complete CME.

32. On May 27, 1999, Petitioner completed six hours of CME

in risk management.

33. On October 20, 2000, Respondent entered an Order

lifting the stay of the suspension imposed in Case No. 95 - 13102.

34. Petitioner completed the required CME in pain

management on October 26, 2000 (1 hour), October 28 - 29 (9 hours),

and November 9 - 10, 2000 (2 hours).

35. On December 9, 2000, a risk management survey of

Petitioner's practice was conducted.

36. On December 19, 2000, Respondent entered a Final Order

adopting a consent agreement in Case No. 98 - 11086. 1 Petitioner's

license was suspended until the CME in Respondent's prior orders

was completed a nd the risk management review was completed. In

addition, Respondent imposed a fine of $2,000.00 and costs in the

amount of $696.00, due December 19, 2001.

37. At the time of the March 30 through April 1, 2001

meeting of the Respondent, Petitioner had me t all of the

requirements for reinstatement specified in the previous Final

Orders.

Findings of Fact Based on the Evidence of the Record

38. Crystal Griffin was the compliance officer for the

Board of Medicine during the period 1992 - 1998. As compliance

officer, Ms. Griffin was responsible for monitoring compliance

with disciplinary orders issued by the Board. Ms. Griffin was

the compliance officer for Petitioner's probation from the entry

of the first Final Order until she resigned in 1998.

39. Upon r eceiving a disciplinary order, Ms. Griffin sent

to the physician an information package which included the due

date of every requirement of the Final Order and information

explaining how to comply with each requirement. The information

package also includ ed brochures for the USF prescribing drug

course and the FMA medical records - keeping course. The USF

course is given once a year. The FMA course takes four months to

complete.

40. Thomas Sweat is a medical malpractice investigator for

the Agency for He alth Care Administration. In his position, he

acts as a probation officer when a medical professional is placed

on probation. Mr. Sweat acted in that capacity with regard to

Petitioner's probation.

41. Acting as probation officer, Mr. Sweat periodicall y

would interview Petitioner, Petitioner's monitor, and the

compliance officer, Ms. Griffin.

42. Mr. Sweat interviewed Petitioner on numerous occasions

during which he counseled Petitioner regarding his problems in

complying with the terms of his probati on.

43. On May 9, 1996, Mr. Sweat interviewed Petitioner at his

office. Mr. Sweat advised Petitioner of delinquent probationer

reports. Although he had been on probation for over a year,

Petitioner stated he was confused about what to include in his

re ports. Mr. Sweat advised Petitioner to contact Ms. Griffin in

that regard.

44. During the May 9, 1996 interview Petitioner admitted he

had not made arrangements to complete his required CME and the

USF and FMA courses. Even though Ms. Griffin had provi ded

Petitioner the necessary information, he stated that he did not

know where to arrange for the courses.

45. On February 4, 1997, Mr. Sweat attempted to interview

Petitioner at his office. Upon arrival he found the office

closed and vacant with no sig ns advertising Petitioner's new

location. When Petitioner was located, he was admonished that he

had violated his terms of probation by relocating his office

without notifying the Board. Petitioner had moved his office the

previous August. Petitioner st ated to Mr. Sweat that it never

occurred to him to notify anyone.

46. It is apparent from the testimony presented at hearing

that Petitioner either did not understand or did not recall his

obligations under various orders issued by the Board.

47. Bec ause of the problems Petitioner had with

understanding his obligations of the previous orders of the

Board, concerns were raised at the March 30 through April 1,

2001, Board meeting about Petitioner's cognitive thinking and

ability to practice medicine saf ely. The Board voted to deny

Petitioner's request for reinstatement and to require him to

undergo an evaluation by the CARES program at the University of

Florida (UFCARES).

48. The May 3, 2001 Order entered by the Board denying

Petitioner's petition for reinstatement and requiring an

evaluation by the UFCARES program prior to reinstatement was

based on the ground that the Board had concerns regarding

Petitioner's ability to safely practice medicine.

CONCLUSIONS OF LAW

49. The Division of Administrativ e Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

50. Section 458.331(4), Florida Statutes, reads in

pertinent part:

The board shall not reinstate the license of

a physician, or cause to be issued to a

person it deems or has deemed unqualified,

until such time as it is satisfied that he or

she has complied with all the terms and

conditions set forth in the final order and

that such person is capable of safely

engag ing in the practice of medicine.

(Emphasis supplied.)

51. Respondent argues that the Board is compelled to

reinstate Petitioner's license because he has complied with all

conditions and requirements of the previous final orders of the

Board. However, t he language of Section 458.331(4), Florida

Statutes, imposes two distinct circumstances under which the

Board is prohibited from reinstating a medical license. It is

unrefuted that Petitioner has met the first circumstance in that

he eventually complied w ith the terms and conditions of the

earlier final orders.

52. As to the second circumstance contemplated by the

statute, the Board raised concerns at its meeting, which it

memorialized in its May 3, 2001 Order, about Petitioner's ability

to practice medic ine safely. While Petitioner's frustration that

the Board did not raise this concern sooner is understandable,

given that it had ample opportunity to do so prior to the meeting

at which Petitioner sought reinstatement, it is within the

Board's authority t o raise this issue prior to reinstatement

pursuant to Section 458.331(4), Florida Statutes. See Major v.

Department of Professional Regulation, Board of Medicine , 531 So.

2d 411 (Fla. 3rd DCA 1988) (The Board of Medicine need not wait

for a physician to en gage in acts of gross malpractice before it

acts to protect the public interest.)

53. Petitioner met his burden of establishing that he

satisfied all of the requirements of the previous orders. The

burden of establishing sufficient reason to impose the

r equirement of an evaluation prior to reinstatement rests with

the Board. In this matter, the Board's imposition of the

evaluation requirement is not penal in nature. The Board has

established sufficient facts to justify imposing the evaluation

requiremen t on Petitioner as a means to satisfy itself that

Petitioner is able to safely engage in the practice of medicine.

Proof of this has been offered by a preponderance of the

evidence. Section 120.57(1)(j), Florida Statutes. Ultimately,

whether or not Petit ioner can safely engage in the practice of

medicine remains to be seen depending on the results of the

assessment, a question not ripe for consideration in this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set for th herein, it is

RECOMMENDED:

That the Department of Health, Board of Medicine, enter a

Final Order denying Petitioner's application for reinstatement

until such time that he undergoes the UFCARES program.

DONE AND ENTERED this 8th day of October, 2001, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 H earings

this 8th day of October, 2001.

ENDNOTE

1/ The Administrative Complaint charged Petitioner with

violations of Subsections 458.331(1)(g) and (x), Florida Statutes.

COPIES FURNISHED:

Paul Kwilecki, Jr., Esquire

629 Nor th Peninsula Drive

Daytona Beach, Florida 32118

Lee Ann Gustafson, Esquire

Office of the Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Tanya Williams, Executive Director

Board of Medicine

Depar tment of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399 - 1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.