05-001982PL Department Of Health, Board Of Medicine vs. Jose A. Gutierrez, M.D. Status: Closed Recommended Order on Friday, May 12, 2006.

Summary: Physician failed to comply with license renewal requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 05 - 1982PL

)

JOSE A. GUTIERREZ, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

On February 7, 2006, an administrative hearing in this case

was held in Orlando, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick L. Butler, Esquire

Katharine B. Heyward, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

F or Respondent: George F. Indest, III, Esquire

Joanne Kenna , Esquire

The Health Law Firm

220 East Central Parkway, Suite 2030

Altamonte Springs, Florida 32701

STATEMENT OF THE ISSUE S

The issue s in the case are whether the allegations of the

Administrative Compl aint are correct, and , if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 15, 2004, the

Department of Health (Petitioner) alleged that Jose A.

Gutierrez, M.D. (Respondent) , was in violation of vario us

statutes and rules related to licensure of his medical practice.

The Respondent disputed the allegations. Attempts to

resolve the dispute were unsuccessful, and the Petitioner

forwarded the matter to the Division of Administrative Hearings ,

which rec eived the request on May 31, 2005.

At the hearing, the Petitioner presented the testimony of

two witnesses and had E xhibits numbered 1 through 9 and 11

admitted into evidence. The Respondent testified on his own

behalf, presented the testimony of one witn ess, and had E xhibits

numbered 1 through 21 admitted into evidence.

The one - volume T ranscript of the hearing was filed on

March 16, 2006. Both parties filed Proposed Recommended Orders ,

which were considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The Petitioner is the State of Florida agency

responsible for regulating the practice of medicine pursuant to

Section 20.43 and Chapters 456 and 458, Florida Statutes (2004) .

2. A s set forth herein , the Respondent was a physician

licensed to practice medicine in the area of critical need

(ACN), and holding F lorida license number ACN144 .

3. A physician holding an ACN licensed must practice in a

facility that meets certain statutory requirements or which is

designated by the State H ealth Officer as an entity providing

health care to an indigent population, and must submit

documentation establishing employment at an ACN - designated

facility for licensing.

4. The s ecretary of the Florida Department of Health is

the s tate h ealth o ffic er .

5. Prior to the events at issue in this proceeding, the

Respondent practiced medicine as m edical d irector at " Mariner ' s

Medical Center " (Mariner ' s), which closed in October 2002.

Mariner ' s was an approved ACN facility.

6. After the closure of the Mariner ' s facility, the

Respondent accepted a position in Miami at Jackson Memorial

Hospital (Jackson) in October 2002; however, prior to commencing

his employment, circumstances at Jackson changed and the

Respondent ' s position at Jackson was eliminated. The

Respondent ' s employment contract at Jackson was terminated and ,

he received payment under the terms of the agreement.

7. The Respondent subsequently returned to central

Florida, apparently intent on opening a medical practice.

8. By letter to " Sandy Condo, " from the Respondent dated

July 17, 2003, the Respondent sought responsibility for

Mariner ' s medical records. The letter did not further identify

Sandy Condo, but the address was that of the Petitioner.

9. The letter, which identified the practice as an entity

called " Boriquen Healthcare Plus, " stated as follows:

This is to certify my desire for the

responsibility of the medical records of

Mariner ' s Medical Center, where I was the

Medical Director until October 24, 2002.

I am willing to be the custodian of these

medical records and I would like the

computer data base (sic) be transferred to

my care. I intend to follow up on the care

of all these patients.

10. In August 2003, the Respondent opened a private

practice at 931 West Oak St reet, Suite 103, Kissimmee, Florida,

and began treating patients. The practice was initially named

" Boriquen Health Care " ( reflecting the historica l name for

Puerto Rico) , but within a few days of opening was renamed

" Physician ' s Health Care Plus. "

11. Towards the end of August 2003 , t he Respondent made

efforts to acquire the ACN designation for his practice.

M aterials seeking the designation were submitted by Glenda E.

Gonzalez - Cortes, M.D., the Medical Director for Physician ' s

Healthcare Plus, to the Board of Medi cine (Board). Although the

materials were received by the Board, the Board was not the

agency responsible for ACN facility designations.

12. It is unclear whether the Board forwarded the

materials to the appropriate office within the Depa rtment of

Health for processing. It is likewise unclear whether the

Respondent understood the distinction between the " Department of

Health " and the " Department of Health, Board of Medicine. " In

any event, the fact that materials were submitted seeking

ACN designation for the practice clearly establishes that the

Respondent was aware that the practice was not designated as an

ACN facility.

13. A memo dated October 2, 2003 , from Melinda K. Gray,

Regulatory Supervisor of the Board of Medicine, to Larry

McPherson, Jr., Executive Directo r of the Board of Medicine,

stated as follows:

Attached please find a letter dated July 17,

2003, from Dr. Jose A. Gutierrez, expressing

his desire to take responsibility for the

medical records of Mariner ' s Medical Center.

Based on my conversation today with

Dr. Gutierrez, he again expressed his desire

to take responsibility of the medical

records and to follow - up on the care of

these patients who received medical

treatment at Mariner ' s Medical Center

Please be advised of the following:

1. Mariner ' s Medical Center is closed.

2. Mariner ' s Medical Center is owned by a

non - health care licensee.

3. The medical records located at Mariner ' s

Medical Center are currently inaccessible

and are being maintained by a leasing

compa ny.

4. Dr. Gutierrez or the patients do not

have access to these medical records.

5. Dr . Gutierrez is willing to take custody

of these records, which are located on a

computer hard drive, and paper records. The

hard drive is necessary to be able to link

between the patient ' s name and patient

identification numbers.

6. Dr. Gutierrez indicated he intends to

follow the care of these patients.

7. Dr. Gutierrez holds a clear active

medical license in the area of critical need

in the state of Florida and ref lects no

prior discipline.

Dr. Gutierrez indicated that either the

leasing company or the owner of Mariner ' s

Medical Center would not release these

records to him until the Board of Medicine

reviews his request to take custody of the

records and the Board grants his request.

Dr. Gutierrez agrees, accepts and

acknowledges the responsibility to maintain

the medical records and follow - up patient

care of the patients who received medical

treatment at Mariner ' s Medical Center,

beginning July 17, 2003.

14. By letter dated October 7, 2003, from the e xecutive

d irector of the Board of Medicine, the custodial request was

approved. The letter stated as follows:

It is my pleasure to advise you that,

pursuant to your request, the Board of

Medicine voted on October 4 , 2003, to

permanently appoint you as the Custodian of

Records for the former Mariner ' s Medical

Center.

This appointment is pursuant to

Section 456.057(19), Florida Statutes, which

authorizes the Board of Medicine to

permanently appoint a person as a cust odian

of medical records in the event of the death

of a practitioner, the mental or physical

incapacitation of the practitioner, or the

abandonment of medical records by a

practitioner. The custodian appointed shall

comply with all provisions of this sect ion,

including the release of patient records.

15. The Respondent suggests that the release of the

records to his custody constituted approval of his July 17

request to provide treatment; however, the October 7 letter

clearly did not address issues reg arding provision of patient

care. The statutory citation referenced in the letter addresses

only custody, maintenance , and use of medical records.

16. There is no credible evidence that the ongoing

dialogue between the Respondent and representatives of t he

Petitioner constituted approval of the Respondent ' s request to

provide medical care to Mariner ' s patients. Further, there is

no evidence that the Respondent ' s practice at " Boriquen Health

Care " or " Physician ' s Health Care Plus " was limited solely to

pa tients who had received care at Mariner ' s.

17. By letter dated November 25, 2003 , to Kimberly Rivers,

Regulatory Supervisor for the Department of Health, Board of

Medicine, the Respondent referenced a conversation of

November 21, 2003 , wherein a discuss ion allegedly occurred

regarding the requirements for ACN designation . The letter

clearly establishes that the Respondent was aware that the

practice had not yet received the ACN designation .

18. The Respondent ' s ACN licens e was due to expire on

Januar y 31, 2004 . On January 30, 2004, the Respondent submitted

his ACN re - licensure application. Because he was not practicing

at an ACN facility as of the expiration date, the ACN license

was not automatically renewed.

19. By letter dated February 5, 2004 , the Petitioner

notified the Respondent that his ACN license renewal could not

be completed until submission of a letter from " your employer in

an area of critical need. " The letter referenced an enclosure

that allegedly identified the ACN - designated fac ilities.

20. An email dated February 16, 2004, from Joanne

Davis - Trexler to the Respondent references a prior conversation

and advises that the Respondent ' s license can not be renewed

without " proof of employment in a facility approved as an Area

of Cr itical Need. " The email further advises that the

Respondent ' s license is " delinquent " and that " practice with a

delinquent license is a violation of Florida Statutes. "

21. An exchange of email between the parties indicates

that subsequent to February 16, 2004, additional information ,

including Medicaid/Medicare billing records , was submitted by

the Respondent to the Petitioner to document the patient

population being served by the Respondent.

22. On March 8, 2004, the s ecretary of the Department of

He alth, acting as the s tate h ealth o fficer, approved Physician ' s

Health C are Plus as an ACN - designated facility based on the

staff ' s recommendation.

23. O n March 24, 2004 , following the facility ' s ACN

designation , t he Respondent ' s ACN licensure was renewed .

24. Between August 2003 (when the Respondent ' s practice

began operating absent the ACN designation ) and March 8 , 2004,

the Respondent failed to comply with licensure requirements

limiting his practice to ACN - designated facilities.

25. Between Februa ry 1 and March 24 , 2004, the Respondent

failed to comply with requirements related to timely renewal of

his ACN licensure.

26. The Respondent has moved to Texas, is no longer

practicing medicine in Florida, and has placed his Florida

license into a " ret ired " status.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla . Stat . (2005) .

28. The Petitioner has the burden of establishing the

al legations of the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). Clear and convincing

evidence is tha t which is credible, precise, explicit, and

lacking confusion as to the facts in issue. The evidence must

be of such weight that it produces in the mind of the trier of

fact the firm belief of conviction, without hesitancy, as to the

truth of the allegati ons. Slomowitz v. Walker , 429 So. 2d 797,

800 (Fla. 4th DCA 1983). The Petitioner has met the burden

relative to the f indings of f act set forth herein.

29. There are two counts in the Administrative Complaint

filed in this cas e; however, the counts ar e essentially

inseparable and have been treated as a single offense for

purposes of the recommended penalty.

30. S ubs ection 458.331(1) (nn) , Florida Statutes (2003,

2004), provides in part that violation of Chapters 456 or 458 ,

Florida Statutes, or any ru les adopted pursuant thereto

constitute grounds for denial of a license or disciplinary

action as specified at S ubs ection 456.072(2), Florida Statutes.

31. Count One of the Administrative Complaint alleges

that the Respondent violated Florida Administr ative Code

Rule 64B8 - 3.003(1 ) by failing to " timely renew his ACN license

prior to seeing, treating and/or examining patients at the

Physician ' s Health Care Plus, located at 931 West Oak Street,

Suite 103, Kissimmee, Florida. " The referenced rule states

" [l] icenses shall be renewed biennially in accordance with the

rules of the Department . "

32. Count Two of the Administrative Complaint alleges that

the Respondent " operated his private practic e as a Facility for

Area of Critical Need without approval by the " State Health

Officer " in violation of Section 458.315(1), Florida Statutes

(2003). " The referenced statute provides as follows:

458.315 Temporary certificate for practice

in areas of critical need. -- Any physician

who is licensed to practice in any o ther

state, whose license is currently valid, and

who pays an application fee of $300 may be

issued a temporary certificate to practice

in communities of Florida where there is a

critical need for physicians. A certificate

may be issued to a physician who will be

employed by a county health department,

correctional facility, community health

center funded by s. 329, s. 330, or s. 340

of the United States Public Health Services

Act, or other entity that provides health

care to indigents and that is approved by

the State Health Officer. The Board of

Medicine may issue this temporary

certificate with the following restrictions:

(1) The board shall determine the areas of

critical need, and the physician so

certified may practice in any of those areas

for a time to be determined by the board.

Such areas shall include, but not be limited

to, health professional shortage areas

designated by the United States Department

of Health and Human Services.

(a) A recipient of a temporary certificate

for practice in areas of critical need may

use the license to work for any approved

employer in any area of critical need

approved by the board.

(b) The recipient of a temporary

certificate for practice in areas of

critical need shall, within 30 days after

accepting em ployment, notify the board of

all approved institutions in which the

licensee practices and of all approved

institutions where practice privileges have

been denied. ( e mphasis supplied)

33. The statute indicates that a physician holding an ACN

license is required to work at a specif ically identified or

otherwise approved ACN facility .

34. The Respondent asserts that the s tatute requires that

federally designated " health professional shortage areas " must

be likewise defined as areas of critical need. T he issue in the

case is not whether the practice met the requirements for such

designation. The essential issue is whether the Respondent met

the requirements of practicing at a properly designated facility

under the terms of his license. The evidence es tablishes that

he did not.

35. The Respondent suggests that Florida Administrative

Code Rule 64B8 - 4024(1) defines " Areas of Critical Need " so as to

negate the requirement that the Respondent ' s practice receive

State Health Officer approval. An administ rative rule cannot

invalidate a clear statutory requirement regardless of the

rule ' s intent.

36. The evidence presented establishes a violation of

licensing requirements. Although the Respondent made efforts to

acquire the ACN designation for the facil ity in August 2003, the

facility was not designated as an ACN facility at the time

operations began and did not receive the ACN designation until

March 8, 2004.

37. The Respondent ' s ACN licensure expired on January 31,

2004 . Because the Respondent coul d not meet the requirements

for renewal of the ACN license, the license was not renewed upon

its expiration. T he Respondent ' s ACN licensure was renewed on

March 24, 2004 , following the facility ' s ACN designation .

38. The evidence establishes that betwe en August 2003 and

March 8, 2004, the facility at which the Respondent practiced

was not an approved ACN facility. The evidence establishes that

between August 2003 and March 24, 2004, the Respondent ' s

practice of medicine was not in compliance with licen sure

requirements.

39. S ubs ection 456.072(2), Florida Statutes (2003) ,

provides as follows:

When the board, or the department when there

is no board, finds any person guilty of the

grounds set forth in subsection (1) or of

any grounds set forth in the a pplicable

practice act, including conduct constituting

a substantial violation of subsection (1) or

a violation of the applicable practice act

which occurred prior to obtaining a license,

it may enter an order imposing one or more

of the following penaltie s:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from pra cticing in certain

settings, restricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from prac ticing

more than a designated number of hours, or

any other restriction found to be necessary

for the protection of the public health,

safety, and welfare.

(d) Imposition of an administrative fine

not to exceed $10,000 for each count or

separate offense . If the violation is for

fraud or making a false or fraudulent

representation, the board, or the department

if there is no board, must impose a fine of

$10,000 per count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend c ontinuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accor dance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected

from the patient or a third party on behalf

of the patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining wh at action is appropriate,

the board, or department when there is no

board, must first consider what sanctions

are necessary to protect the public or to

compensate the patient. Only after those

sanctions have been imposed may the

disciplining authority con sider and include

in the order requirements designed to

rehabilitate the practitioner. All costs

associated with compliance with orders

issued under this subsection are the

obligation of the practitioner.

40. The Petitioner ' s disciplinary guidelines ar e set

forth in Florida Administrative Code Rule 64B8 - 8.001(2). The

rule provides no specific guideline for a violation of

S ubs ection 458.331(1)(nn), Florida Statutes (2003) , however the

minimum disciplinary action for an otherwise unspecified first

offen se relating to failure to perform a legal obligation is a

letter of concern and an administrative fine of $1,000. See

Fla . Admin . Code R . 64B8 - 8.001(2) (g) .

41. Florida Administ rative Code Rule 64B8 - 8.001(3) sets

forth circumstances permitting the Petit ioner to deviate from

the guidelines and provides as follows:

Aggravating and Mitigating Circumstances.

Based upon consideration of aggravating and

mitigating factors present in an individual

case, the Board may deviate from the

penalties recommended abo ve. The Board

shall consider as aggravating or mitigating

factors the following:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the

offense: no res traints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter o r

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t ), F.S., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

42. An aggravating factor in this case is that the

Respondent cle arly understood from the beginning of operations

that his practice had not received the ACN designation . The

Respondent ' s assertion that the October 7, 2003 , letter granting

custody of the Mariner 's records constituted blanket approval of

his request to p rovide medical care to Mariner 's patients is not

reasonable. Further, even assuming that such approval could be

presumed, there is no evidence that the only patients served by

Physician ' s Health C are Plus were former Mariner ' s patients.

Although his desi re was to provide medical care to a population

in need, he knowingly failed to comply with licensure

requirements.

43. There are also mitigating factors in this case. The re

is no evidence that the Respondent ' s practice exposed any

patient to injury or potential injury of any kind. The evidence

establishes that the Respondent ' s interest in continuing to

operate the facility was primarily to provide medical care to

the relevant population, as opposed to pecuniary benefit or

self - gain. There is no eviden ce of prior disciplinary action

against the Respondent. There are no issues related to standard

of care or to controlled substance provision. There appears to

have been confusion related to the responsibilities of various

government offices involved in t he facility ' s ACN designation

and the Respondent ' s license.

44. Consideration of the aggravating and mitigating

factors indicates that the penalty imposed in this case, if one

is imposed at all, should be minimal.

45. At the time of the hearing, the Respondent testified

that he was seeking to serve as a volunteer medical missionary

in foreign countries on behalf of the Assemblies of God, Church

of Chaplain Ministries, Inc., and expressed concern that any

adverse finding in this matter would preclude h is service. It

should be noted that the allegations in this case raised no

issues related to quality of care or whether the Respondent met

applicable professional practice standards. There was no

evidence presented that the Respondent was not capable of

providing appropriate medical care to those in need.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of

Medicine, enter a f inal o rder issuing a letter of concern to t he

Respondent related to the licensing violations cited herein.

DONE AND ENTER ED this 12th day of May , 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administr ative 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 12th day of May , 2006 .

COPIES FURNISHED :

Patrick L. Butler, Esquire

Katharine B. Heyward, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

George F. Indest, III, Esquire

Joanne Kenna, Esquire

The Health Law Firm

220 East Central Parkway, Suite 2030

Altamonte Springs, Florida 32701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Healt h

4052 Bald Cypress Way

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 shou ld be filed with the agency that

will issue the Final Order in this case.