14-005649PL Department Of Health, Board Of Medicine vs. Mark T. Ramsey, M.D. Status: Closed Recommended Order on Wednesday, March 4, 2015.

Summary: DOH proved Respondent was terminated from PRN, which is a violation of 456.072(1)(hh). Jurisdiction because license not null when violations occurred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE,

Petitioner,

vs. Case No. 14 - 5649PL

MARK T. RAMSEY, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On February 3, 2015, a final administrative hearing was held

in this case in Tallahassee, Florida, before J. Lawrence

Johnston, Administrative Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Lauren Ashley Leikam, Esquire

Daniel Hernande z, Esquire

Francis A. Carbone II, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: William M. Furlow, Esquire

Grossman, Furlow and Bayo, LLC

2022 Raym ond Diehl Road, Suite 2

Tallahassee, Florida 32308 - 3881

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Medicine

should discipline and fine the Respondent for an alleged

violation of section 456.072(1)(hh), Florida Statutes (2010) , 1/

for being terminated from a treatment program for impaired

practitioners being overseen by an impaired practitioner

consultant, as described in section 456.076.

PRELIMINARY STATEMENT

The Petitioner, Department of Health (DOH), filed an Amended

Admini strative Complaint against the Respondent in July 2014. In

November 2014, the Respondent disputed the charges and requested

a hearing, and DOH referred the matter to the Division of

Administrative Hearings.

At the final hearing, the evidence was present ed through the

introduction of Exhibits 1, 2, 4, 7 through 9, and 11 through 16

by DOH. Exhibits 2, 4, 7, and 14 through 16 are the deposition

transcripts ( offered in lieu of live testimony ) of: Kelly Brady,

a licensed mental health counselor ; Delena Tor rence, a compliance

manager ; the Respondent , Mark T. Ramsey, M.D.; Penelope P.

Ziegler , M.D. ; Barry Lubin, M.D.; and Judy Rivenbark, M.D.

Exhibits 2, 8, 9, and 11 through 16 were admitted during the

hearing. Objections to portions of Exhibit 1 (the exhib it

summary on pages 1 through 7 and the pages added to divide the

exhibit in sections by year) and to Exhibits 3, 5, and 6 were

sustained, and those documents were excluded from evidence.

Ruling was reserved on objections to other portions of Exhibit 1,

t o Exhibit 4, and to Exhibit 7.

The objection to Exhibit 4 is now sustained, and that

exhibit is excluded from evidence. The other reserved objections

are overruled . The business records exception applies to any

hearsay in Exhibit 1 or Exhibit 7 being u sed to support a finding

of fact. See §§ 120.57(1)(c) and 90.803(6) , Fla. Stat. (2014).

The evidence reflecting earlier timeframes is relevant to

paragraphs 5 and 6 of the Amended Administrative Complaint, the

nature of the PRN program, and the penalty g uideline ' s

aggravating and mitigating factors. By agreement of the parties,

all of Exhibit 1 and the excerpts from it that are attached to

the deposition transcripts are being treated as sealed and

confidential information.

A Transcript of the final hea ring was filed on February 12,

2015. The parties filed proposed recommended orders that have

been considered in the preparation of this Recommended Order.

The Respondent seeks attorney ' s fees and costs under several

provisions of the Florida Statutes.

FINDING S OF FACT

1. The Respondent, Mark T. Ramsey, M.D., held Florida

medical doctor license ME76559 beginning on August 21, 1998. The

license expired on January 31, 2012, and its current status is

" null and void. "

2. In 2002, the Respondent was refe rred to the Professional

Resources Network (PRN), which wa s and still is designated as the

State of Florida ' s impaired practitioners program for physicians.

3. PRN is one of two such programs (the other being the

Intervention Project for Nurses or IPN). The purpose of the

program is to ensure the public health and safety by assisting

practitioners who may suffer from chemical dependency ;

psychiatric illness ; psychosexual illness, including boundary

violations ; neurological/cognitive impairment ; physical illness ;

HIV infection/AIDS ; and behavior disorders.

4. The following services are provided by PRN:

confidential reporting of impaired practitioners ; investigating

incoming referrals and determining appropriate action ; conducting

interventions on impair ed practitioners ; arranging for

evaluations or treatment of impaired practitioners ; coordinating

treatment discharge with PRN monitoring ; coordinating monitoring

between state regional areas and PRN office ; proving advocacy for

participants who progress sa tisfactorily; monitoring compliance

through a random urine call system ; conducting monitoring phone

calls with participants ; overseeing monitored practitioner

support groups ; detecting relapses and providing a format for

intervention of a relapse at the ea rliest possible stage;

reporting non - compliance of participants to licensing

authorities ; and performing daily case management of new

referrals and actively monitored participants.

5. PRN participants are responsible for complying with the

recommendations of the evaluator and/or treatment provider in

consultation with the PRN medical director, complying with the

terms of the PRN monitoring contract, and meeting financial

obligations to care providers, including toxicology testing and

PRN facilitator group fees.

6. Witnesses did not characterize PRN as a treatment

program because PRN itself does not provide treatment directly.

However, their testimony is not controlling on the question of

whether PRN is a treatment program for impaired physicians under

the Florida Statutes.

7 . The Respondent ' s 2002 contract required him to abstain

from mood - altering substances unless ordered by his primary

physician, submit to random drug screenings, obtain psychiatric

treatment, obtain psychotherapy treatment, and atten d PRN ' s

monitored professional support group meetings.

8 . In July 2005, the Respondent was admitted to Shands

Healthcare and diagnosed with opiate withdrawal syndrome and

opiate dependence. Due to t his relapse, the Respondent entered

into a second monito ring contract with PRN in November 2005. The

2005 cont r act required the Respondent to abstain from mood -

altering substances unless ordered by his primary physician,

submit to random drug screenings, obtain psychiatric treatment,

obtain psychotherapy treat ment, and attend PRN ' s monitored

professional support group meetings.

9. Due to his positive urine drug screen, the Respondent

signed a third monitoring contract with PRN in September 2006.

The 2006 contract required the Respondent to abstain from mood -

a ltering substances unless ordered by his primary physician,

submit to random drug screenings, obtain psychiatric treatment,

obtain psychotherapy treatment, and attend PRN's monitored

professional support group meetings.

10. In October 2006, the Respondent tested positive for

Darvocet 2/ on a PRN - ordered urine drug screen. The Respondent did

not have a valid prescription for Darvocet at the time he

submitted to the urine drug screen. As a result of his positive

urine drug screen, the Respondent was required to submit to an

evaluation by Dr. Barbara Krantz.

1 1 . Dr. Krantz diagnosed the Respondent with alcohol

dependency, cocaine dependency, and opiate dependency. However,

Dr. Krantz found the Respondent safe to practice medicine,

provided that he limit his working hours to approximately

45 hours per week and continue close monitoring with a

psychiatrist and psychologist.

1 2. From about January through July 2007, the Respondent

was prescribed Percocet for pain. Percocet is the brand name for

a drug that con tains oxycodone and is prescribed to treat pain.

According to section 893.03(2), Florida Statutes, oxycodone is a

Schedule II controlled substance that has a high potential for

abuse and has a currently accepted, but severely restricted ,

medical use in tr eatment in the United States. Abuse of

oxycodone may lead to severe psychological or physical

dependence.

1 3. I n May 2007, PRN directed the Respondent to either stop

taking Percocet or refrain f r om the practice of medicine. He did

neither .

1 4. The Resp ondent failed to submit to drug testing during

June 2007.

1 5 . On or about July 17, 2007, PRN required the Respondent

to voluntarily withdraw from practice.

1 6 . On or about July 30, 2007, the Respondent submitted to

a second PRN - ordered evaluation by Dr. Krantz. Dr. Krantz

diagnosed the Respondent with opiate dependency episodic, alcohol

dependency in remission, and cocaine dependency in remission.

Dr. Krantz opined that the Respondent was not able to practice

medicine with reasonable skill and safety an d recommended that

the Respondent enter a customized outpatient treatment program.

1 7 . On or about July 30, 2007, the Respondent began

outpatient treatment at the Hanley Center.

1 8 . On or about August 22, 2007, PRN held a staff meeting

to discuss the Respo ndent ' s case. Rather than dismissing the

Respondent from PRN for violating his monitoring contracts, the

clinical team opted to require the Respondent to enter six months

of residential treatment.

19 . On or about September 5, 2007, the Respondent left the

Hanley Center " voluntarily to pursue more involved treatment

recommended by PRN. "

2 0 . The Respondent did not enter into a six - month

residential treatment program , as recommended by PRN.

2 1 . On or about September 25, 2007, the Respondent advised

PRN that h e could not enter a six - month residential treatment

program because the Respondent was responsible for paying the

living expenses of his brother, who lived in North Carolina. The

Respondent indicated that if he were unable to send money to

provide for his brother, his brother would be forced to move into

a nursing home.

2 2 . In October 2007, the Respondent entered into a fourth

monitoring contract with PRN. The 2007 monitoring contract

required the Respondent to abstain from mood - altering substances

unless ordered by his primary physician, submit to random drug

screenings, obtain psychiatric treatment, obtain psychotherapy

treatment, and attend PRN ' s monitored professional support group

meetings. Additionally, the Respondent agree d not to be

re - evaluated f or at least one year (until October 2008) and to

refrain from practice until the Department of Health and/or the

Board of Medicine rescinded the Voluntary Withdraw from Practice.

2 3 . In March 2008, the Respondent relocated to Wisconsin.

In May 2008, the R espondent signed a revised version of the

October 2007 contract due to his relocation to Wisconsin. The

revised contract ' s substantive requirements were the same .

2 4 . For approximately a year and a half, while he lived in

Wisconsin, t he Respondent did not obtain psychiatric treatment or

psychotherapy treatment, as required by the revised monitoring

contract , because he could not afford it.

2 5 . In 2009, the Respondent requested that he be

re - evaluated by a PRN - approved evaluator.

2 6 . The Respondent submitte d to an evaluation with

Dr. Bayez, who recommended that the Respondent complete an

intensive outpatient program.

27 . In May 2009, the clinical team of PRN held a staff

meeting and decided to require the Respondent to attend an

intensive outpatient program, as recommended by Dr. Bayez, and

demonstrate one year of complete compliance with his PRN

monitoring contract, including obtaining psychiatric and

psychotherapy treatment for one year, before PRN would advocate

on his behalf before the Board of Medicine.

28 . In June 2009, the Respondent signed an addendum to his

current monitoring contract w hich required him to: enroll in an

intensive outpatient program (at least three times per week for

six weeks) within 90 days (by August 8, 2009); and have one year

of complete compliance with his PRN contract before requesting

re - evaluation for PRN advocacy with the Board of Medicine.

29 . The Respondent completed an intensive outpatient

treatment program in June or July 2009.

3 0 . In March 2010, the Respondent signed a revised version

of the October 2007 contract due to his relocation from Wisconsin

to Florida. The revised contract included the same requirements

as the original October 2007 contract, with the exception of

addresses and the names of providers.

3 1 . On or about November 23, 2010, the Respondent was

selecte d for a PRN - ordered urine drug screen. The Respondent

failed to submit to the urine drug screen.

3 2 . The Respondent advised PRN that he could not submit to

the test because he was in North Carolina, and there were no

collection sites open near him. The Respondent indicated that he

had traveled to North Carolina due to a medical emergency

involving his brother. However, the Respondent notified his

group facilitator approximately one week before November 23,

2010, that he would be traveling out of state. The Respondent

failed to notify PRN that he would be traveling on November 23,

2010 . The Respondent was aware that he was required to notify

both his group facilitator and PRN of any out - of - state travel .

3 3 . Due to his failure to submit to the urine drug screen,

PRN required the Respondent to submit to a hair drug screen upon

his return to Florida.

3 4 . On or about No vember 29, 2010, the Respondent ' s group

facilitator, Ms. Brady, notified him that he was required to

submit to the hair drug sc reen within two weeks. The Respondent

did not submit to the required hair drug screen.

3 5 . In 2010, PRN had a loan fund available for doctoral

level participants to assist participants with the cost of

obtaining eva luations and paying for certain treatment programs.

PRN also had a n arrangement with a hair drug screen lab, as well

as one for urine drug screen ing with Affinity Online Solutions

(Affinity) , which oversaw the selection process and compliance

with random urine drug screening , and could request that a

participant be permitted to test for free , if the participant was

unable to afford a drug screening. The Respondent did not

request financial assistance from PRN for completing the hair

drug screen.

3 6 . Aff inity offered a " self - test " feature that allowed

participants to create and submit to a urine drug screen on their

own initiative in order to document sobriety. The PRN handbook

informed PRN participants of this option. The Respondent did not

submit to a self - test urine drug screen in lieu of submitting to

the hair drug screen.

3 7 . On or about December 1, 2010, the Respondent again

failed to submit to a random urine drug screen.

3 8 . On or about December 13, 2010, the Respondent failed to

check in to Aff inity to determine whether he had been selected

for drug testing.

39 . On or about January 4, 2011, the Respondent notified

his group facilitator that he could not submit to the hair drug

screen because he could not afford it.

4 0 . On or about January 5, 201 1, PRN held a staff meeting

regarding the Respondent ' s case. During the meeting, the medical

director, Dr. Judy Rivenbark, decided to dismiss the Respondent

from the PRN because she believed him to be " unmonitorable , "

based on his recent non - compliance in 2010 and his history of

non - compliance with previous PRN contracts.

4 1 . On or about January 6, 2011, Dr. Rivenbark sent a

letter to the Respondent notifying him that his case had been

referred to the Florida Board of Medicine for appropriate action

based on his " continued incidences of non - compliance " with his

PRN Dual Diagnosis Monitoring Contract.

4 2 . On or about January 31, 2011, Dr. Rivenbark sent a

letter notifying DOH that the Respondent had been terminated from

PRN due to the Respondent ' s continued non - compliance with his

Dual Diagnosis Monitoring Contract.

CONCLUSIONS OF LAW

4 3 . The Respondent contends that DOH has no jurisdiction

because the license is " null and void. " Section 456.036(5),

Florida Statutes (2010), provided that if a licensee did no t

apply to renew a license by its expiration date, the license

would become delinquent in the license cycle following the

expiration. Under section 456.036(6), a delinquent license is

rendered null if the licensee does not apply for active or

inactive sta tus by the expiration of the " current licensure

cycle. " In this case, the Respondent ' s license expired on

January 31, 2012. Medical licenses are biennial. § 458.319(2),

Fla. Stat. For that reason, the Respondent ' s license was

rendered null and void on February 1, 2014.

4 4 . The evidence is unclear when DOH initially brought

these charges against the Respondent. Probable cause was

determined on December 22, 2011, before the Respondent ' s license

became null. The date of the Administrative Complaint is not in

the record. The Amended Administrative Complaint was filed on

July 7, 2014.

4 5 . Under section 456.072(2), the licensing board may

impose a penalty on any person who is guilty of any ground for

discipline set out in section 456.072(1). The Respon dent

contends that means any person who is a licensee, which he no

longer is. To the contrary, under section 456.072(2), the Board

of Medicine has jurisdiction to impose discipline on the

Respondent, who was a licensee at the time of the alleged

violation . See Boedy v. Dep ' t of Prof. Reg. , 433 So. 2d 544

(Fla. 1st DCA 1983) (licensee alleged to have violated the

practice act cannot defeat the board ' s jurisdiction by

deactivating license, which could be reactivated later);

Haggerty v. Dep ' t of Bus . & Prof. Reg. , 716 So. 2d 873 (Fla. 1st

DCA 1998) (board had no jurisdiction over a person no longer

licensed, where statute listed grounds for imposing discipline on

licensees only, unlike the statute in this case).

4 6 . The Respondent argues that section 456.07 2(2) would be

unconstitutional if construed to give the Board jurisdiction over

" any person, " even if not licensed, using the hypothetical of an

attempt to impose discipline on a physician licensed in another

state, but not Florida, for a violation of sect ion 456.072(1)(f)

for " having a license . . . acted against . . . by the licensing

authority of any jurisdiction . " The Respondent ' s hypothetical is

inapposite. The statute is not unconstitutional as applied in

this case.

4 7 . DOH argues that the Board ' s jurisdiction to bring this

charge and impose discipline against the Respondent is necessary

to prevent him from re - applying and obtaining a new license by

manipulation, dishonesty, or dissembling in the re - application

process. That eventuality seems high ly unlikely. In any event ,

the Board ' s jurisdiction does not depend on the success of this

argument.

4 8 . Section 456.072(1)(hh) made it a ground for discipline

for a physician to be " terminated from a treatment program for

impaired practitioners, which is overseen by an impaired

practitione r consultant as described in s. 456.076, for failure

to comply, without good cause, with the terms of the monitoring

or treatment contract entered into by the licensee, or for not

successfully completing any drug treat ment or alcohol treatment

program. "

49 . DOH must prove its charge that the Respondent violated

section 456.072(1)(hh) by clear and convincing evidence. See

Dep ' t of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932

Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

The evidence is clear and convincing, and actually not vigorously

disputed, that the Respondent was terminated by PRN for failure

to comply, without good cause, with the terms of his monitoring

or treatment contract with PRN, o r for not successfully

completing the drug treatment or alcohol treatment program being

overseen by PRN. The Respondent ' s primary defense to the charge

is that termination from PRN is not a violation because PRN is

not a treatment program.

5 0 . Section 4 56.076(1) provides that treatment programs for

impaired practitioners are either named in the profession ' s

practice act or designated by DOH rule. DOH may adopt rules with

appropriate criteria for approval of treatment providers. The

rules may specify : the manner in which the consultant retained

by DOH works with DOH in intervention ; requirements for

evaluating and treating a professional ; requirements for

continued care of impaired professionals by approved treatment

providers ; continued monitoring by t he consultant of the care

provided by approved treatment providers regarding the

professionals under their care ; and requirement s related to the

consultant ' s expulsion of professionals from the program.

5 1 . While PRN itself does not provide treatment to impaired

practitioners, the program overseen by PRN is the treatment

program for impaired physicians described in section

456.072(1)(hh). The Respondent ' s termination from the PRN

program was a violation of section 456.072(1)(hh).

5 2 . It does not appear that the Board of Medicine has

entered a final order deciding the issue of whether PRN is the

treatment program described in section 456.072(1)(hh). However,

the preceding C onclusion of L aw is consistent with the Board ' s

past practice in cases where the issue was not squarely

presented. See Dep ' t of Health, Bd. of Med. v. R. George Farhat,

M.D. , Case No. 12 - 2391PL (DOAH Oct. 9, 2012; DOH Dec. 7, 2012);

and Dep ' t of Health, Bd. of Med. v. Lawrence A. Mishlove, M.D. ,

Case No. 11 - 4398PL (DOAH Mar. 30, 2012; DOH June 13, 2012) . See

also Dep ' t of Health, Bd. of Nursing v. Nancy Ellen Cunningham,

R.N. , Case No. 09 - 0611PL (DOAH June 9, 2009; DOH Jan. 15, 2010);

and Dep ' t of Health, Bd. of Nursing v. Darline Sue Peguero, R.N. ,

Case No. 14 - 0004PL (DOAH Apr. 8, 20 14; DOH July 1 & 7, 2014).

5 3 . The promulgated penalty guideline for the first

violation of section 456.072(1)(hh) is suspension until the

licensee demonstrates compliance with the terms of monitoring or

treatment program and the ability to practice with r easonable

skill and safety, followed by probation, and a fine between

$1,000 and $2,500, to revocation. Fla. Admin. Code R.

64B8 - 8.0001(1)(ww) (Rev. Jul. 27, 2010).

5 4 . Deviation from the recommended penalty can be justified

by consideration of the fact ors set out in rule 64B8 - 8.0001(3).

Factors (a), (c), (d), and (f) favor mitigation of the

recommended penalty. Factors (b) and (e) favor aggravation of

the recommended penalty. The other factors are not applicable.

Overall, consideration of the mitiga ting and aggravating factors

do es not justify a deviation from the recommended penalty , but it

does suggest a penalty at the lower end of the range.

5 5 . Since the Respondent ' s license is now null and void ,

suspending or revoking it is moot. See § 456.03 6(6), Fla. Stat.

( " Any subsequent licensure shall be as a result of applying for

and meeting all requirements imposed on an applicant for new

licensure. " ) . A $1,000 fine is appropriate.

5 6 . The Respondent is not entitled to attorney ' s fees or

costs.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine find the

Respondent guilty as charged and fine him $1,000.

DONE AND ENTERED this 4th day of March , 2015 , in

Tallahassee, Leon Cou nty, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March , 2015 .

ENDNOTE S

1/ Unless otherwise indicated, all statutory references are to

the 2010 codification of the Florida Statutes, which is the

version in effect at the time of the alleged violation.

2/ Darvocet is the brand name for a drug that contains propoxyphene

and is prescribed to treat pain. According to section 893.03(4),

Florida Statutes, propoxyphene is a Schedule IV controlled substance

that has a low potential for abuse relative to the substances in

Schedule III and has a currently accepted medical use in treatment

in the United States. Abuse of the substance may lead to limited

physical or psychological dependence relative to the substance s in

Schedule III.

COPIES FURNISHED:

William M. Furlow, Esquire

Grossman, Furlow and Bayo, LLC

Suite 2

2022 Raymond Diehl Road

Tallahassee, Florida 32308 - 3881

(eServed)

Lauren Ashley Leikam, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Andre Ourso, Executive Director

Board of Medicine

Department of Health

Bin C - 03

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3253

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A - 02

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

Francis A. Carbone II, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Daniel Hernandez, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

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.