05-003242PL Department Of Health, Board Of Medicine vs. Corliss A. Rupp, M.D. Status: Closed Recommended Order on Wednesday, March 29, 2006.

Summary: Respondent`s license was disciplined in another jurisdiction and she failed to notify Petitioner within 30 days of the disciplinary action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3242PL

)

CORLISS A. RUPP, M.D. )

)

Respondent. )

)

RECOMMENDED OR DER

Pursuant to notice, a final hearing was held in this case

on December 14, 2005, in Key West, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Kurt L. Barch, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Michael R. Barnes, Esq uire

Michael R. Barnes, P.A.

801 Whitehead Street

Key West, Florida 33040 - 7421

STATEMENT OF THE ISSUE

Whether Respondent violated Subsections 458.331(1)(b) and

458.331(1)(kk), Florida Sta tutes (2004), 1 and, if so, what

discipline should be imposed?

PRELIMINARY STATEMENT

On May 31, 2005, Petitioner, Department of Health, Board of

Medicine (Department), filed an A dministrative Complaint against

Respondent, Corliss A. Rupp (Dr. Rupp) , allegi ng that Dr. Rupp

violated Subsection 458.331( 1 )(b), Florida Statutes, by having

her license to practice medicine acted against by the licensing

authority, and Subsection 458.331(1)(kk), Florida Sta t utes, by

failing to report to the Department, in writing, within 30 days

of action taken against her license to practice medicine , as

defined in Subsection 458.331(1)(b), Florida Statutes.

Dr. Rupp requested an administrative hearing pursuant to

Sections 120.569 and 120.57, Florida Statutes (2005), and the

case w as forwarded to the Division of Administrative Hearings on

September 7, 2005, for assignment to an administrative law

judge. The case was originally assigned to Administrative Law

Judge Larry J. Sartin, but was transferred to Administrative Law

Judge Susa n B. Harrell to conduct the final hearing.

On October 4, 2005, Petitioner filed a Motion to Amend

Administrative Complaint, which was granted by O rder dated

October 5, 2005. The Amended Administrative Complaint was filed

on October 24, 2005.

On December 5, 2005, Petitioner filed Petitioner's Amended

Motion for Official Recognition. The motion was granted at the

final hearing. Official Recognition was taken of the following:

1. Letter by Karen W. Perrine dated October 26, 2004 .

2. Certification of Dup licate of Official Board Records

Section 54.1 - 112, Code of Virginia, 1950, as Amended.

3. L etter dated July 9, 2004 , from William L. Harp, M.D. ,

to Dr. Rupp.

4. Order from the Virginia Board of Medicine dated

August 18, 2004, regarding Corlis s Ann Rupp, M.D., License

No. 0101 - 228926.

5 . Certificate of diligent search from Tracie Natale dated

October 15, 2004.

6 . Sections 54.1 - 2915(A)(13), 54.1 - 2910.1(A)(7 ) ,

54.1 - 2400(10), and 54.1 - 2401, Code of Virginia.

7 . Sections 18VAC85 - 20 - 21 and 18 VAC 85 - 20 - 280(A) (1),

Virginia Administrative Code.

8 . Affidavit of William L. Harp, M.D., dated October 24,

2005 .

9. Notice of Informal Conference mailed to Dr. Rupp on

July 9, 2004.

10 . Certification of Dupli cate of Official Board Records

dated October 24, 2005.

11 . L etter dated July 9, 2004 , to Corliss Ann Rupp from

William L. Harp, M.D.

12 . Florida Licensure Certification dated November 21,

2005.

At the final hearing, the Department presented no

witnesses , and Petitioner ' s Exhibits 1 through 9 were admitted

into e vidence. The Respondent called the following witness:

Kathleen Jarevela, the office assistant of Dr. Rupp. Dr. Rupp

testified on her own behalf and presented 14 exhibits.

Respondent ' s E xhibits 1 through 5, 7 , and 9 through 12 were

admitted into evidenc e. Respondent ' s Exhibits 6, 8, 13, and 14

were proffered.

The parties agreed to file their proposed recommended

orders within ten days of the filing of the one - volume

Transcript, which was filed on January 5, 2006. The Department

and Dr. Rupp filed thei r respective Proposed Recommended Order s

on January 17, 2006.

FINDINGS OF FACT

1. The Department is the state agency charged with the

responsibility of regulating the practice of medicine pursuant

to Section 20.43 and Chapters 456 and 458, Florida Stat utes.

2. Corliss A. Rupp has been practicing medicine since 1986

and has been practicing psychiatry since 1990. She is licensed

to practice in six states, including Virginia , Georgia , and

Florida .

3. The Respondent ' s current address on record with the

Florida Board of Medicine is 137 Maracaibo Lane, Cudjoe Key,

Florida.

4 . Dr. Rupp was associated with a locum tenes company,

whereby she would substitute for other physicians in various

parts of the country where there was a need for a psychiatrist.

In order to practice in various states, Dr. Rupp had to be

licensed in those state s . She contracted with the Atlanta - bas ed

firm of Daniel and Yaeger, wh ich was responsible for assisting

her in the licensing process and in notifying the various

licensing auth orities of changes in Dr. Rupp's licensing

information.

5 . In January 2003, Dr. Rupp became licensed in the S tate

of Florida and subsequently moved to Florida in March of 2003.

She then personally notified Florida of her change of address in

April 2003.

6 . In January and April 2003, Dr. Rupp contacted Daniel

and Yaeger and requested that the firm notify the S tate of

Virginia of her new address in Florida. Sometime in early 2004,

Daniel and Yaeger ceased doing business in Atlanta. As of

July 9, 2004, th e official address of record for Dr. Rupp with

the Virginia Board of Medicine was 8010 Roswell Road, Suite 320,

Atlanta, Georgia 30350 (Atlanta address) , which was the address

of Daniel and Yaeger .

7 . On July 9, 2004, the Virginia Board of Medicine sent a

letter to Dr. Rupp to the Atlanta address, notifying her that an

informal conference would be convened on August 11, 2004, to

inquire into allegations that Dr. Rupp had failed to timely

provide the required information for the Practitioner Profile

System and had failed to notify the Virginia Board of Medicine

of her current address within 30 days of the change of the

address. Dr. Rupp did not receive notice of the informal

conference prior to August 11, 2004; thus, she did not appear at

the informal confe rence and had no representative at the

conference.

8 . On August 18, 2004, the Virginia Board of Medicine

entered an order against Dr. Rupp. The order stated:

Dr. Rupp violated Section 54.1 -

2915(3)[ formerly 54.1 - 2915.A(3)] , as further

defined in Section 54.1 - 2914.A(1 3), and

Section 54.1 - 2910.1 of the Code, and Part

VII of the Board ' s General Regulations,

" Practitioner Profile System " (18 VAC 85 - 20 -

280 et seq .), in that she failed to provide,

in a timely manner, the information required

by Section 54.1 - 29 10.1 of the Code and Part

VII of the Board ' s General Regulations,

" Practitioner Profile System " (18 VAC 85 - 20 -

280 et seq .).

Dr. Rupp violated Section 54.1 - 2915(3)

[formerly 54.1 - 2915.A(3)], as further

defined in Section 54.1 - 2914.A(13) of the

Code, and 18 VAC 85 - 20 - 21 of the Board's

General Regulations, in that she failed to

provide the Board with her current address

within thirty (30) days of such change.

* * *

WHEREFORE, based on the foregoing Findings

of Fact and Conclusions of law, it is hereby

ORDERED that a MONETARY PENALTY of fifteen

hundred dollars ($1500.00) is imposed upon

Corliss Ann Rupp, M.D. This monetary

penalty shall be paid within forty - five (45)

days of entry of this Order.

9 . By letter dated August 19, 2004, the Virginia Board of

Medicine sent a copy of the order to Dr. Rupp via the Atlanta

address. The Virginia Board of Medicine's order became final on

September 22, 2004.

1 0 . On October 11, 2004, Dr. Rupp received a letter at her

Florida address in a plain envelope. The let ter , dated

September 22, 2004, and addressed to Dr. Rupp at the Atlanta

address , was from the Virginia Compliance Unit of the Department

of Health Professions referring to the Virginia Final Order.

This was the first time Dr. Rupp became aware of the Virg inia

disciplinary action.

1 1 . On October 29, 2004, Dr. Rupp paid the fine imposed by

the Virginia disciplinary order. She then received an

acknowledgment letter from the Virginia Department of Health

Professions indicating that they received her " moneta ry penalty "

on November 29, 2004.

1 2 . The Department received information that the Virginia

Board of Medicine had taken disciplinary action against

Dr. Rupp's Virginia license, and o n November 2, 2004, the

Department informed Dr. Rupp that it was initia ting an

investigation of a complaint filed against her as a result of

her failure to advise the Department of the Virginia

disciplinary action . The letter was signed by Sandra Condo, a

government analyst with the Department.

1 3 . On November 8, 2004, Dr. Rupp spoke with Sandra Condo

concerning the disciplinary action and sent the Department a

packet of information concerning the Virginia disciplinary

order .

1 4 . Dr. Rupp claimed at the final hearing that she was led

to believe that the action taken against her license by the

Virginia Board of Medicine was not disciplinary action that

needed to be reported to the Department. Her claim is not

credible. The order entered by the Virginia Board of Medicine

found that she had violated statutes and rules relatin g to her

license and that a monetary penalty was being imposed. In a

letter to the Virginia Board of Medicine dated October 21, 2004,

Dr. Rupp stated: "The $1500 fine is a significant financial

burden, but I have paid it to resolve this issue. Yet, give n

the exceptional circumstances, I ask if the board could expunge

this as a disciplinary action."

15 . Other than the Virginia disciplinary action, Dr. Rupp

has not had her license disciplined prior to these proceedings.

CONCLUSIONS OF LAW

16 . The Divi sion of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

1 7 . The Department has alleged that Dr. Rupp violated

Subsections 458.331(1)(b) and 458.331(1)(kk), Florida Statutes,

which provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(b) Having a license or authority to

practice medicine revoke d , suspended, or

otherwise acted against, including denial of

licensure, by the licensing authority of any

jurisdiction, including its agencies or

subdivisions. The licensing authority's

acceptance of a physician's relinquishment

of a license, stipulation, consent order, or

other s ettlement, offered in response to or

in anticipation of the filing of

administrative charges against the

physician's license, shall be construed as

action against the physician's license.

* * *

(kk) Failing to report to the board, in

writing, within 30 days if action as defined

in paragraph (b) has been taken against

one's license to practice medicine in

another state, territory, or country.

1 8 . The Department has the burden to establish the

allegations in the Amended Administrative Complaint by cl ear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Slomowitz

v. Walker , 429 So. 2d 797 (Fla. 4th DCA 1983), the court

developed a working definition of " clear and convincing

evidence, " which has been adopted by the Florida Supreme Court

in In re Davey , 645 So. 2d 398 (Fla. 1994). The court in

Slomowitz stated:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testif y must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in 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 a firm belief or

con viction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz , 429 at 800.

19 . The Department has established by clear and convincing

evidence that disciplinary action was taken against Dr. Rupp's

Virginia medical lic ense by the Virginia Board of Medicine.

Thus, the Department has established a violation of Subsection

458.331(1)(b), Florida Statutes.

20 . Dr. Rupp physically did not receive notice of

disciplinary action taken against her until almost two months

after the order was entered. Therefore, she could not have

notified the Department within 30 days of the date the order was

entered. She did provide notice to the Department within 30

days of the date that she received notice from Virginia.

However, Subsectio n 458.331(1)(kk), Florida Statutes, does not

provide that notice be given within 30 days of receipt of the

disciplinary action , but within 30 days of the action being

taken. The Department has established a violation of Subsection

458.331(1)(kk), Florida Statutes , by clear and convincing

evidence .

2 1 . The disciplinary guidelines of the Board of Medicine,

found at Florida Administrative Code Rule 64B8 - 8.001, provide a

range of penalties for a violation of the provisions of Section

458.331, Florida Stat utes . The penalty for a violation of

Subsection 458.331(1)(b) , Florida Statutes, ranges "[ f ] rom

imposition of discipline comparable to the discipline which

would have been imposed if the substantive violation had

occurred in Florida to suspension or denial o f the license until

the license is unencumbered in the jurisdiction in which

disciplinary action was originally taken, and an administrative

fine ranging from $1,000.00 to $5,000.00." The Virginia Board

of Medicine found that Dr. Rupp failed to timely prov ide

information for the Practitioner's Profile System and failed to

timely report her change of address. Discipline for similar

violations in Florida range from administrative fines of $1,000

to $10,000, and a letter of concern to revocation, based on the

severity of the offense and the potential for patient harm. See

Fla. Admin. Code R . 64B8 - 8.001(1)(g).

2 2 . The penalty range for a violation of Subsection

458.331(1) ( kk), Florida Statutes, includes an administrative

fine from $2,000 to $5,000 and a rep rimand to revocation.

2 3 . Florida Administrative Code Rule 64B8 - 8.001 provides

that the Board of Medicine may deviate from the penalty

guidelines based on the following aggravating or mitigating

factors:

(a) Exposure of patient or public to injury

or pot ential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints 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 h istory of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) The 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 or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revoc ation 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 or produce the re cords.

(i) Any other relevant mitigating factors.

2 4 . There are mitigating circumstances which would allow

for deviation from the penalty guidelines. There was no harm to

patients or the public; other than the disciplinary action by

Virginia there has been no other disciplinary taken against

Dr. Rupp; and the Virginia violation was not a willful

violation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Dr. Rupp violated Subsections 458.331(1)(b) and 458.331(1)(kk),

Florida Statutes ; providing for the issuance of a letter of

concern ; and imposing an administrative fine of $500.

DONE AND ENTERED this 29th day of March , 2006, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March , 2006.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 200 4 version.

COPIES FURNISHED :

Michael R. Barnes, Esquire

Michael R. Barnes, P.A.

801 Whitehead Street

Key West, Florida 33040 - 7421

Kurt L. Barch, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

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 Health

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 Or der should be filed with the agency that

will issue the Final Order in this case.