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11-002661 Professional Pain Management, Inc., License No. Pmc 296 vs. Department Of Health
 Status: Closed
Recommended Order on Friday, September 30, 2011.

View Dockets  
Summary: ?? 458.3265 & 459.0137, F. S. require a pain management clinic to be wholly owned by physicians. PMC 296 did not satisfy the requirement. Department of Health must prove grounds for revoking certification by clear and convincing evidence.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PROFESSIONAL PAIN MANAGEMENT, )

12INC., LICENSE NO. PMC 296 , )

18)

19Petitioner , )

21)

22vs. ) Case No. 11 - 2661

29)

30DEPARTMENT OF HEALTH , )

34)

35Respondent . )

38)

39RECOMMENDED ORDER

41Administrative Law Judge, John D. C. Newton, II, of the

51Division of Administrative Hearings, heard this case, as

59noticed, on August 3, 2011, by video teleconference at sites in

70Lauderdale Lakes and Tallahassee, Florida.

75APPEARANCES

76For Petitioner: Michael S. Hoffman, Esq uire

83Hoffman, Larin and Agnetti, P.A.

88909 N orth Miami Beach B oulevard

95Suite 201

97Miami, Florida 33162

100For Respondent: Morris Shelkofsky, Esquire

105Department of Health

1084052 Bald Cypress Way, B in A02

115Tallahassee, Florida 32399 - 1703

120STATEMENT OF THE ISSUE

124Should the certificate of registration of Petitioner,

131Professional Pain Management, Inc., License No. PMC 296 , as a

141privately - owned p ain management c linic , be revoked?

151P RELIMINARY STATEMENT

154Respondent, Department of Health ( Department), by Notice of

163Intent dated December 9, 2010, gave Petitioner, Professional

171Pain Management, Inc., License No. PMC 296 (PMC 296), notice

181that it intended to revoke PMC 296's certificate of registration

191as a privately - owned pain management clinic. PMC 296 requested

202a hearing, and the Department referred the matter to the

212Division of Administrative Hearings on May 25, 2011. T he matter

223was scheduled for the hearing to commence on August 3, 20 11. On

236August 1, 2011, PMC 296 moved to continue the hearing. The

247motion was denied , and t he hearing was held as scheduled.

258The Department 's E xhibits 1 and 2 were accepted into

269evidence. The Department offered the testimony of Joanne

277Trexler. PMC 29 6 's E xhibit 1 was accepted into evidence. Erez

290Cohen testified on behalf of PMC 296.

297The Transcript of the final hearing was filed on August 22,

3082011. The parties were provided an opportunity to submit

317proposed recommended orders. The Department timely submitted a

325Proposed Recommended Order ; PMC 296 did not submit a proposed

335recommended order.

337FINDINGS OF FACT

3401. Petitioner, Professional Pain Management, Inc., License

347No. 296 , is a pain management clinic (PMC) subject to the

358requirements of s ections 4 58.3265 and 459.0137, Florida Statutes

368(2010). 1/

3702. PMC 296 is not wholly - owned by medical doctors (M.D.s),

382osteopathic physicians (D.O.s), or a combination of M.D.s and

391D.O.s.

3923. PMC 296 is not a health care clinic licensed under

403chapter 400 , part X , Florida Statutes.

4094. PMC 296 has three equity shareholders. Their names and

419percentages of ownership interests are: Robert Ciceles

426(20 percent ); Terra Hom (40 percent ), and Erez Cohen

437(40 percent ). None of the three equity shareholders is a

448physicia n, M.D. or D.O.

4535. Erez Cohen is , and at all pertinent times , has been

464p resident of PMC 296. He is not an M.D. or a D.O.

4776. Since at least August 2010, the owners and officers of

488PMC 296 were aware of the requirement that it be wholly

499physician - owned , effective October 1, 2010.

5067. PMC 296 was , at all times pertinent to this proceeding ,

517not wholly - owned by physicians, M.D.s, D.O.s, or a combination

528of M.D.s and D.O.s.

5328. A dispute among the shareholders arising out of a

542dissolution of marriage pro ceeding has prevented PMC 296 from

552establishing ownership by a M.D., a D.O. or a combination of

563M.D.s and D.O.s. Management of PMC 296 plans to transfer

573ownership to physicians at an unspecified future date once the

583shareholder dispute is resolved.

5879. T here was no evidence of any exemption from the

598operation of s ections 458.3265 and 459.0137 presented at the

608hearing.

609CONCLUSIONS OF LAW

61210. The Division of Administrative Hearing (DOAH) has

620jurisdiction over this matter pursuant to sections 120.569 and

62912 0.57 (1) , Florida Statutes (2011).

63511. The Department must prove the material allegations of

644its n otice by clear and convincing evidence. Dep't of Banking

655and Fin. v. Osborne Stern and Co,, Inc., 670 So. 2d 932 (Fla.

6681996) and Ferris v. Turlington , 510 So . 2d 292 (Fla. 1987).

68012. Sections 458.3265 and 459.0137 require that a PMC be

690wholly - owned by physicians (M.D.s, D.O.s, or a combination for

701M.D.s and D.O.s).

70413. Alternatively, a PMC can obtain registration under

712sections 458.3265 and 459.0137 by obt aining licensure as a

722Health Care Clinic Standard from the Florida Agency for Health

732Care Administration under chapter 400 , part X .

74014. The Department proved by cl ear and convincing evidence

750that PMC 296 is not wholly - owned by M.D.s, D.O.s, or some

763combin ation of them and that PMC 296 does not hold a Health Care

777Clinic Standard license. Therefore , PMC 296 does not satisfy

786the requirements for registration as a pain management clinic

795established by sections 458 . 3265 and 459.0137.

803RECOMMENDATION

804Based on t he foregoing Findings of Fact and Conclusion of

815Law, it is

818RECOMMENDED that the Department of Health issue a final

827order revoking the c ertificate of r egistration of Professional

837Pain Management, Inc., License No. PMC 296.

844DONE AND ENT ERED this 30th day of September , 2011 , in

855Tallahassee, Leon County, Florida.

859S

860JOHN D. C. NEWTON, II

865Administrative Law Judge

868Division of Administrative Hearings

872The DeSoto Building

8751230 Apalachee Parkway

878Tallahassee, Florida 32399 - 3060

883(850 ) 488 - 9675

888Fax Filing (850) 921 - 6847

894www.doah.state.fl.us

895Filed with the Clerk of the

901Division of Administrative Hearings

905this 30th day of September , 2011 .

912ENDNOTE

9131/ All statutory references to the Florida Statutes are to the

9242010 edition, unless not ed otherwise.

930COPIES FURNISHED :

933H. Frank Farmer, MD., Ph.D, Secretary

939State Surgeon General

942Department of Health

9454052 Bald Cypress Way, Bin A00

951Tallahassee, Florida 32399 - 1701

956Nicholas Romanello, General Counsel

960Department of Health

9634052 Bald Cypress Way, Bin A02

969Tallahassee, Florida 32399 - 1703

974R. S. Power, Agency Clerk

979Department of Health

9824052 Bald Cypress Way, Bin A02

988Tallahassee, Florida 32399 - 1703

993Morris Shelkofsky, Esquire

996Department of Health

9994052 Bald Cypress Way, Bin A02

1005Tallahassee, Flor ida 32399 - 1703

1011Michael S. Hoffman, Esquire

1015Hoffman, Larin and Agnetti, P.A.

1020909 North Miami Beach Boulevard

1025Suite 201

1027Miami, Florida 33162

1030NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1036All parties have the right to submit written exceptions within

104615 days fro m the date of this Recommended Order. Any exceptions

1058to this Recommended Order should be filed with the agency that

1069will issue the Final Order in this case.

Dockets
Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/16/2011
Proceedings: Appellant's Notice of Voluntary Dismissal filed.
PDF:
Date: 12/01/2011
Proceedings: Notice of Appeal filed.
PDF:
Date: 11/28/2011
Proceedings: Letter to Kimberly Berfield from Claudia Llado forwarding Emergency Motion for Stay Pending Sale of Business to Agency, filed.
PDF:
Date: 11/28/2011
Proceedings: Emergency Motion for Stay Pending Sale of Business filed.
PDF:
Date: 11/15/2011
Proceedings: Letter to Kimberly Berfield from Claudia Llado forwarding Notice of Filing Affidavit of Michael S. Hoffman, Esquire, in Support of Motion to Vacate Final Order, along with a Motion to Vacate Final Order to the Agency.
PDF:
Date: 11/14/2011
Proceedings: Notice of Filing (Affidavit of Michael Hoffman) filed.
PDF:
Date: 11/14/2011
Proceedings: Motion to Vacate Final Order filed.
PDF:
Date: 11/01/2011
Proceedings: (Agency) Final Order filed.
PDF:
Date: 10/27/2011
Proceedings: Agency Final Order
PDF:
Date: 09/30/2011
Proceedings: Recommended Order
PDF:
Date: 09/30/2011
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/30/2011
Proceedings: Recommended Order (hearing held August 3, 2011). CASE CLOSED.
PDF:
Date: 09/02/2011
Proceedings: DOH's Proposed Recommended Order filed.
Date: 08/22/2011
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 08/03/2011
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 08/02/2011
Proceedings: Notice of Filing (of healthcare clinic establishment license) filed.
PDF:
Date: 08/02/2011
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for August 3, 2011; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to location).
PDF:
Date: 08/02/2011
Proceedings: Transmittal letter for Department of Health Exhibits to Clerk filed.
PDF:
Date: 08/02/2011
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 08/01/2011
Proceedings: Petitioner's Motion to Continue Final Hearing filed.
PDF:
Date: 08/01/2011
Proceedings: Amended Notice of Hearing by Webcast (hearing set for August 3, 2011; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL; amended as to Meeting invitation information).
Date: 07/26/2011
Proceedings: Respondent's Proposed Exhibits (exhibits not available for viewing)
PDF:
Date: 07/22/2011
Proceedings: DOH's Unilateral Pre-hearing Stipulation filed.
PDF:
Date: 07/20/2011
Proceedings: Respondent DOH's Request for Webcast filed.
PDF:
Date: 06/06/2011
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 06/06/2011
Proceedings: Notice of Telephonic Final Hearing With Webcast Option (hearing set for August 3, 2011; 9:00 a.m.).
PDF:
Date: 06/03/2011
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 06/03/2011
Proceedings: Unilateral Response to Initial Order filed.
PDF:
Date: 05/26/2011
Proceedings: Initial Order.
PDF:
Date: 05/25/2011
Proceedings: Notice of Intent to Revoke Certification of Registration filed.
PDF:
Date: 05/25/2011
Proceedings: Petition for Review and Request for Hearing filed.
PDF:
Date: 05/25/2011
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
JOHN D. C. NEWTON, II
Date Filed:
05/25/2011
Date Assignment:
05/26/2011
Last Docket Entry:
12/16/2011
Location:
Lauderdale Lakes, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (5):