15-007083PL Department Of Health, Board Of Medicine vs. Sandra Ann Lindstrom, P.A. Status: Closed Recommended Order on Wednesday, March 30, 2016.

Summary: Respondent, a licensed physician assistant, prescribed Lorcet to an undercover investigator in violation of statutes and rules. Lorcet contains a controlled substance, hydrocodone.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 15 - 7083PL

SANDRA ANN LINDSTROM, P.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final h earing was held in this case on February 23, 2016,

before David M. Maloney, Administrative Law Judge with the

Division of Administrative Hearings in Tallahassee, Leon County,

Florida.

APPEARANCES

For Petitioner: Yolonda Y. Green, Esquire

Maciej Lewandowski, Esquire

Department of Health

4052 Bald Cypress Way , Bin C65

Tallahassee, Florida 32399 - 3265

For Respondent: Sandra Ann Lindstrom , pro se

6726 Pomeroy Circle

Orlando, Florida 32810

STATEMENT OF THE ISSUE S

Whether Sandra Ann Lindstrom (ÐMs. LindstromÑ or

ÐRespondentÑ) , a licensed physician assistant, prescribed Lorcet,

a medication containing a controlled substance (hydrocodone), in

violation of the F lorida Statutes and the Florida Administrative

Code as charged in the Amended Administrative Complaint filed at

the Department of Health in DOH Case No. 2006 - 36542 on

October 27, 2014 . If so, what is the appropriate discipline?

PRELIMINARY STATEMENT

On De cember 15, 2015, the Department of Health (ÐDOHÑ or the

ÐDepartmentÑ) filed with the Division of Administrative Hearings

(ÐDOAHÑ) an agency referral letter. The subject of the letter is

the DepartmentÓs Case No. 2006 - 36542, Department of Health v.

Lindstr om . The letter also informed DOAH of the filing by

electronic mail of one copy of the DepartmentÓs Amended

Administrative Complaint in the case and one copy of RespondentÓs

Election of Rights requesting a hearing.

The case was assigned DOAH Case No. 15 - 70 83 PL , and

Administrative Law Judge J. Lawrence Johnston was designated by

DOAH to conduct the proceedings. Judge Johnston issued an

I nitial O rder to which only the Department responded. The

response noted that Ðthe case was previously before the Division

of Administrative Hearings and assigned case number 14 - 1851 , Ñ in

which jurisdiction was relinquis hed to the Department on

August 14, 2014. The DepartmentÓs response gave two dates of

availability in February and requested the final hearings be set

accord ingly. The request was honored , and the case was set for

final hearing by video - teleconference on February 23, 2016.

On February 3, 2016, the Department moved to consolidate the

pleadings in DOAH Case No. 14 - 1851PL with the pleadings in this

case. The mo tion was denied by Judge Johnston in an O rder

entered February 12, 2016. The O rder, however, left open

official recognition of the pleadings in the earlier case should

the Department cho o se to pursue such a course of action. In the

meantime, the case was transferred to the undersigned.

Respondent filed a pre - hearing statement on February 17,

2016. It contains the following under the statement of issues of

law: ÐWhether the case should be dismissed as the [Amended]

Administrative Complaint filed by Petit ioner on 10 - 27 - 2014, was

two years past the six year statute limit described in Florida

Statute Section 456.073(13) [the ÐProfessional Disciplinary

Proceedings Statute of LimitationsÑ or the ÐStatuteÑ].Ñ The

statement was treated as a Motion to Dismiss , a nd the undersigned

issued an Order to Show Cause why the Amended Administrative

Complaint should not be dismissed.

The Department responded in writing with a filing on

February 19. The Department did not contest that the date of the

Amended Complaint was more than six years after the date of the

prescription (the charging incident). Instead, the Department

pointed out that the original Administrative Complaint (subject

to DOAH Case No. 14 - 1851PL and which bore the same DOH case

number) had been issued pri or to the expiration of six years

following the charging incident. The Department argued that the

Amended Administrative Complaint related back to the original

Administrative Complaint and concluded, therefore, that the

Amended Administrative Complaint su rvived the statuteÓs

application.

Despite the relinquishment of jurisdiction by DOAH to the

Department of DOAH Case No. 14 - 1851PL and the later referral to

DOAH of this case without notification of the relationship of the

two, the undersigned agreed with t he argument of the Department.

An O rder was entered accordingly. It found the Amended

Administrative Complaint related back to the timely

Administrative Complaint and determined that the Amended

Administrative Complaint, therefore, should not be dismisse d.

The determination is bolstered by the assertion in the

DepartmentÓs Unilateral Response to the Initial Order (filed

December 22, 2015) that this case is a continuation of DOAH Case

No. 14 - 1851PL. The assertion in the response, moreover,

justifies a de termination that the DepartmentÓs failure in its

referral letter to notify DOAH of its intent to re - open or

continue the earlier case is an oversight on the part of the

Department.

Motions in limine were filed by both parties. The

DepartmentÓs motion was denied. Respondent Ós motion requested to

have excluded:

Any writings or oral testimony by Petitioner,

or any of Petitioner's witnesses, that are

about, or relate to any criminal charges,

civil charges, administrative, regulatory

complaints, violations, or allegations

against respondent, which are not

specifically stated as allegations or

violations against Respondent, within the

October 27, 2014 Amended Administrative

Complaint Case #36542, or within the

September 21, 2012 Administrative Complaint

Case #36 542.

THEREFORE, Respondent respectfully requests

of the Court, an order directing Petitioner,

not to mention, refer to or to interrogate

concerning, or voluntarily answer or attempt

to convey before the Court, at any time

during these proceedings in any manner,

either directly or indirectly, the subject

matters as stated above, and to instruct

Petitioner to warn and caution all witnesses,

to follow these instructions.

The Department raised no objection to the motion , and it was

granted at the hearing. See HrÓg Tr. 7.

The Department presented the testimony of ÐRJ , Ñ a medical

malpractice investigator for the Department of Health. The

Department also presented the testimony by deposition in lieu of

live testimony of Thomas Vastrick, an expert in forensic document

examination. See Pet Ó rÓs Ex. C at 11. In addition to

PetitionerÓs Ex hibit C, the Department offered five other

exhibits marked as PetitionerÓs Exhibits A, B, D, E , and F. All

six of PetitionerÓs exhibits were admitted into evidence.

Ms. Linds trom testified on her own behalf and offered seven

exhibits, six of which were admitted into evidence without

objection: RespondentÓs Exhibits G, H, I, L, M, and N.

RespondentÓs Ex hibit K, a report of RespondentÓs handwriting

expert was admitted over a h earsay objection by the Department.

The document was declared to be hearsay , but determined to

supplement and explain Respondent Ós sworn claim at hearing that

she had not written ÐLorcet 10/650 #90 (ninety)Ñ onto the

prescription form for RJ, one of three prescriptions that

comprise PetitionerÓs Ex hibit B . RespondentÓs Ex hibit K,

therefore, was ruled admissible under section 120.57(c), Florida

Statutes (2015) . In sum, all seven of RespondentÓs exhibits were

admitted into evidence.

The T ranscript of the f inal hearing was filed with DOAH on

March 8, 2016. Due on March 18, 2016, the parties timely filed

P roposed R ecommended O rders. RespondentÓs proposed order

included a memorandum of law supporting dismissal of the Amended

Administrative Complaint on bases other than the Disciplinary

Proceedings Statute of Limitations. These bases had been raised

by RespondentÓs pre - hearing statement. Petitioner filed a

memorandum of law in support of denial of dismissal. The

memorandum addresses Ms. LindstromÓs claims f or dismissal of the

proceeding made in her pre - hearing statement and her post - hearing

submittal. (PetitionerÓs memorandum was filed after 5:00 p.m.,

the close of business at DOAH and , so , was not docketed until

Monday, March 21, 2016 , at 8:00 a.m. , but is hereby accepted by

the undersigned. ) The partiesÓ post - hearing submittals have been

considered in the entry of this R ecommended O rder.

The Issues for Dismissal Raised by Ms. Lindstrom

Coming six days before the final hearing, the issues raised

in Ms. Lin dstromÓs pre - hearing statement were not timely for

purposes of a response, an analysis of the pleadings, and a

ruling before the hearing commenced. In consideration of

Ms. LindstromÓs pro se status, the parties, therefore, were given

leave to address Ms. Lindstrom Ós arguments in their post - hearing

submittals. After consideration of the partiesÓ arguments in the

post - hearing submittals, dismissal of the case is hereby denied.

References to statutes are to Florida Statutes (2015),

unless otherwise noted.

FI NDING S OF FACT

a. The Parties

1. The Department of Health is the state agency responsible

for regulating the practice of physician assistants in the State

of Florida. The regulation is pursuant to both c hapter 456

(ÐHealth Professions and Occupations, G eneral ProvisionsÑ) and

c hapter 458 (ÐMedical PracticeÑ) , Florida Statutes .

2. Respondent is licensed as a physician assistant by the

Board of Medicine. Her license number is PA 9103823. The

license was effective on August 3, 2006, with an expiration da te

of March 31, 2008. Her license has been continuously renewed

since its effective date. See Pet Ó rÓs Ex. A. Ms. Lindstrom is

not licensed to practice medicine as a physician. Id.

b. Physician Assistants

3. Physician assistants are governed by sectio n 458.347, a

section within the chapter of the Florida Statutes that governs

Medical Practice.

4. Physician assistant licensure is provided for in

section 458.347(7) , and the Board of Medicine is authorized to

Ðimpose any of the penalties authorized under ss. 456.072 and

458.331(2) upon a physician assistant if the physician assistant

or the supervising physician has been found guilty of or is being

investigated for any act that constitutes a violation of this

chapter [Ch. 458] or chapter 456 . Ñ £ 456.347( 7)(g) , Fla. Stat .

5. A physician assistantÓs supervisory physician may

delegate authority to conduct aspects of medical practice to a

physician assistant under circumstances expressed in the

statutes. The limited medical practice that may be delegated to

a physician assistant includes certain practices at county health

departments. Whether conducting the delegated practice of

medicine at a county health department , or not, physician

assistants may be delegated authority to prescribe medications

provided they are not listed on a formulary created pursuant to

section 458.347(7)(f). See § 458.347(7)(d) and (e) , Fla. Stat .

The formulary must include Ðcontrolled substances as defined in

chapter 893 . Ñ £ 458.347(7)(f)1. , Fla. Stat. In sum , physicians

may not delegate to physician assistants the prescription of

medications which are controlled substances as defined in chapter

893 , Florida Statutes .

c. The DepartmentÓs Investigative Office

6. The Department has an investigative office charged with

looking i nto regulatory complaints. In a typical regulatory

investigation, the investigator discloses his identity to any

party interviewed, whether the party is the source of the

complaint, a witness , or, if amenable to an interview, the

licensee who is the subje ct of the complaint. Aside from

interviews, the investigations include record reviews, the

obtaining of evidence, and the preparation of an investigative

report.

7. In addition to investigating complaints of regulatory

violations by licensed health care practitioners, the

investigative office looks into cases of unauthorized practice by

unlicensed individuals. Investigations of unlicensed activity

are conducted by what is known as the ÐULAÑ section of the

office. Commonly, ULA investigations are done by investigators

who are Ðundercover , Ñ that is, the investigators hide their

identity as investigator s and use pseudonyms rather than their

actual names. Typically, undercover ULA investigators present at

the offices of the subjects of investigation. If th e unlicensed

subject of the investigation offers to perform services that

require a license or engages in practice that requires a license,

the Department pursues remedies , including an order that the

subject cease and desist from the unlawful, unlicensed activity.

8. Investigations of a licensee for practicing outside the

scope of the licensed activity may be viewed as something of a

hybrid of a typical regulatory investigation and a ULA

investigation. It is regulatory since the subject is a licensee ,

bu t it is usually done undercover in the same manner in which a

ULA investigation is conducted. One such investigation was

conducted by Ryan Heal, an employee of the Department between

August and December of 2006. Mr. Heal conducted the

investigation under cover using a pseudonym referred to in

Department documents as ÐRJ . Ñ

d. RJ and the 2006 Investigation of JHS

9. Mr. Heal has been a medical malpractice investigator for

the Department since November 2000. During the course of his

more than 15 years as a Department investigator, Mr. Heal has

investigated both regulatory violations and unauthorized practice

violations.

10. In 2006, allegations reached the Department that

prescriptions were being written at Jacksonville Health Systems

(ÐJHSÑ), a clinic lo cated on Baymeadows Road in Jacksonville,

Florida, by a physician assistant without the supervision of a

physician. In response, the Department launched an

investigation. The investigation was conducted undercover by

Mr. Heal using his pseudonym RJ. Com menced in August of 2006,

the investigation lasted until the following December.

e. August 10, 2006

11. On August 10, 2006, Mr. Heal, using his fictitious

name, presented at JHS. A woman behind the counter in the

reception area accepted a cash payment f or the visit. She took

RJÓs blood pressure and requested the name of the pharmacy for

any medicine prescribed. To the best of Mr. Heal Ós recollection,

the receptionist recorded some of the information.

12. After the interaction with staff in the recepti on room,

Mr. Heal took a seat and waited to be called back to the

examination room. Shortly thereafter, Ms. Lindstrom emerged and

asked for RJ. Mr. Heal Ðstood up and went over to her . Ñ HrÓg

Tr. 19. Ms. Lindstrom identified herself by her first name an d

said, ÐIÓm the provider here.Ñ Id. Ms. Lindstrom accompanied

Mr. Heal to the examination room where only she and Mr. Heal were

present.

13. After Mr. Heal complained of back pain, Ms. Lindstrom

asked where in his back the pain was located and what cau sed it ,

but she did not conduct a physical examination. As Mr. Heal

testified at hearing, Ð[t]here was no examination. She never

touched my back. Never took vitals or anything.Ñ HrÓg Tr. 20.

Ms. Lindstrom suggested that Mr. Heal use a chair with lumba r

support, try stretching, lose weight, and have an MRI.

Ms. Lindstrom then stated that she would prescribe medication to

treat the pain: Lorcet, Flexeril, and Motrin. With the visit in

the examination room concluded, Ms. Lindstrom took Mr. Heal back

to the receptionist. The meeting in the examination room and his

first visit to the JHS offices being over, Mr. Heal departed the

JHS facility. He did not return until the following October.

f. October 31, 2006

14. Mr. Heal returned to the JHS facility o n October 31,

20 0 6. The process during the second visit was similar to the one

followed during the visit the previous August. He presented as

ÐRJ . Ñ A staff member took his blood pressure in the reception

area and he paid her $90 in cash.

15. Mr. Heal s at down and waited to be called. Again,

Ms. Lindstrom appeared in the reception area and took him to the

examination room in the back.

16. The visit was shorter than it had been in August.

Ms. Lindstrom asked if his pain had improved and if an MRI had

b een done. With the intention of calling in his prescriptions,

Ms. Lindstrom showed Mr. Heal a list of five pharmacies from

which to choose. Mr. Heal, however, took a tack that was

different from Ms. LindstromÓs intention and from his first

visit:

I expla ined to her that I did not have

reliable transportation and asked [for] . . .

handwritten prescriptions . . . so that I

could take them to whatever pharmacy was

convenient . . . . She agreed that she could

write them that time, but that on the next

visit, I would have to arrange for proper

transportation to get to the pharmacy or

wherever they needed to be called into.

HrÓg Tr. 23. Ms. Lindstrom wrote out three prescriptions: Two

of them were for ÐFlexeril 10mg (ten) #30 (thirty)Ñ and ÐIbprofen

(sic) [I buprofen] 800mg #120 (one twenty) . Ñ Pet Ó rÓs Ex. B. The

third prescription was for ÐLorcet 10/650 #90 (Ninety) . Ñ Id.

17. Ms. Lindstrom explained to Mr. Heal that he should use

one of the five pharmacies on her list because Ðseveral [of the

ClinicÓs pati ents] had been kicked out of pharmacies . . . [that]

were refusing to fill the prescriptions.Ñ HrÓg Tr. 25.

Ms. Lindstrom also Ðmentioned that a couple of her patients had

been arrested for forging prescriptions.Ñ HrÓg Tr. 25 - 6.

18. At no time during h is visit to JHS on October 31, 2006,

did Mr. Heal see a physician. No one entered the examination

room where Ms. Lindstrom met with Mr. Heal that day. Nor did

Ms. Lindstrom leave the examination room while Mr. Heal was

present in the room. Like the firs t visit the previous August,

Ms. Lindstrom recommended that Mr. Heal have an MRI. S he

explained that r esults from an MRI were needed Ðin case the DEA

wanted to look at the file, to show that [she and JHS] were

actually treating [Mr. Heal ] for something.Ñ HrÓg Tr. 28.

g . December 1, 2006

19. Little more than a month later on December 1, Mr. Heal

made a third visit to JHS. The reception process was the same.

The receptionist took his blood pressure, he paid $90 in cash,

and waited in the reception area for Ms. Lindstrom to call him

back. While waiting, he was informed that the number of

pharmacies that would accept JHS prescriptions had been

drastically reduced. Only one pharmacy would now accept JHS

prescriptions: a pharmacy called New Horizon.

20. Subsequent to the third visit, Mr. Heal presented to

the pharmacy identified as New Horizon. In the company of law

enforcement and with its supervision, Mr. Heal had the

prescriptions filled for three medications: Flexeril, Ibuprofen

at a prescription - st rength dosage, and Lorcet.

h . Supervising Physician and Other Claims

21. At hearing under oath, Ms. Lindstrom admitted that she

treated Mr. Heal once at the JHS facility and admitted that she

prescribed Flexeril and Ibuprofen for him. She claimed under

oath that the supervising physician for the 2006 visit in which

she prescribed the two medications was James Hendrick, M.D.

22. The Department produced documentation in the

DepartmentÓs official business records that shows that

Dr. Hendrick cancelled his Professional Liability Insurance

Policy effective October 1, 2005, the year before Ms. Lindstrom

claims to have seen Mr. Heal at the JHS facility under

Dr. HendrickÓs supervision. The reason for the cancellation of

the policy is listed on the letter from the insurer to the

Department as ÐRetired . Ñ Pet Ó rÓs Ex. F, letter dated October 17,

2005 , from FPIC, First Professionals Insurance Company .

Department records also include an ÐAddress ChangeÑ form that

contains a section entitled ÐFinancial Responsibilit yÑ dated

November 21, 2005, the year before the incidents in this case.

No boxes are checked in the section that shows ÐFinancial

Responsibility Coverage . Ñ Under a section on the form entitled,

ÐCategory II: Financial Responsibility Exemptions,Ñ Dr. Hen drick

checked a box that indicated he was Ðretired or maintain[ed]

part - time practice , Ñ id. , at least as of late November 2005,

11 months or more before the October 31, 2006 , visit by Mr. Heal .

23. Ms. Lindstrom made other claims with regard to RJÓs

visit that she asserted occurred on October 3, 2006, rather than

October 31, 2006 , as charged. Among them was that she left the

examination room after completing the prescriptions for Flexeril

and Ibuprofen and partially completing a third prescription by

inse rting all the information , including her signature , except

for the medicine to be prescribed and how often it should be

taken. Ms. Lindstrom claimed that she intended to write a

prescription for Lodine , but failed to write down ÐLodineÑ on the

third presc ription form because she was distracted by a

discussion with Mr. Heal about the need for RJ to have an MRI.

She says she left the room to make arrangements for an MRI and

when she returned, RJ was gone , together with the two filled out

prescriptions, the third incomplete prescription, and her

prescription pad. Ms. Lindst ro mÓs testimony about the theft of

the pad and other details about the event, including when it

occurred, is not credible. In contrast, Mr. HealÓs testimony

about the visits he made to th e JHS facility, seeing

Ms. Lindstrom, and her prescription of Lorcet, is credited as

truthful.

i . Lorcet

24. Lorcet contains hydrocodone, which is a controlled

substance.

CONCLUSIONS OF LAW

2 5 . The Division of Administrative Hearings has

jurisdiction ov er the subject matter of this proceeding and of

the parties. §§ 120.569 and 120.57(1).

2 6 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature. State

ex rel. Vining v. Fla . Real Estate CommÓn , 281 So. 2d 487, 491

(Fla. 1973). Accordingly, to impose such discipline, Petitioner

must prove the allegations in the Administrative Complaint by

clear and convincing evidence. DepÓt of Banking & Fin., Div. of

Sec. & Investor Prot. v. Osborne Stern & Co . , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292,

294 - 95 (Fla. 1987)); Nair v. DepÓt of Bus. & ProfÓl Reg., Bd. of

Med. , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

2 7 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a Ðworkable definition of clear and convincing

evidenceÑ and found that, of necessity, such a definition would

need to contain Ðboth qualitative and quantitative standards.Ñ

The court held that clear and convincing evidence Ðrequire[s]

that the witnesses to a fact must be found to be credible; the

facts to which the witnesses testify mu st be distinctly

remembered; . . . the testimony must be clear, direct and

weighty, and the witnesses must be l acking in confusion as to the

facts in issue.Ñ Additionally, the evidence must be of such

weight that it Ðproduces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the truth of the

precise facts in issue.Ñ Id. The F lorida Supreme Court later

adopted the Slomowitz courtÓs description of clear and convincing

evidence. See In re Davey , 645 So. 2d 398, 404 (Fla. 1994). The

First District Court of Appeal also followed the Slomowitz test,

adding the interpretive comment that Ð[a]lthough this standard of

proof may be met where the evidence is in conflict . . . it seems

to preclude the evidence that is ambiguous.Ñ Westinghouse Elec.

Corp., Inc. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st

DCA 1991)(citations omitte d), rev. denied , 599 So. 2d 1279 (Fla.

1992).

2 8 . Disciplinary statutes and rules Ðmust be construed

strictly, in favor of the one against whom the penalty would be

imposed.Ñ Munch v. DepÓt of ProfÓl Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. DepÓt of

Bus. & ProfÓl Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3 d DCA 2002);

McClung v. Crim. Just. Stds. & Training CommÓn , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)(Ð[W]here a statute provides for

revocation of a license the ground s must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the lic ensee.Ñ)

(citing State v. Pattishall , 126 So . 147 (Fla. 1930)).

2 9 . Pursuant to section 458.347(7)(g) (2006), the Board of

Medicine may impose any of the penalties authorized under

sections 456.072 and 458.331(2) upon a physician assistant if the

physicia n assistant or the supervising physician has been found

guilty of or is being investigated for any act that constitutes a

violation of chapter 45 6 or chapter 45 8 .

30 . Respondent is charged with violating section

458.331(1)(nn) (2006) , which subjects Respo ndent to disciplinary

action for violating any provision of chapter 45 6 or chapter 45 8 ,

or any rules adopted pursuant thereto.

31 . Florida Administrative Code Rule 64B8 - 30.008(1) (2006) ,

provides in pertinent part that p hysician a ssistants approved to

pre scribe medicinal drugs under the provision s of section

458.347(4)(e) (2006), are not authorized to prescribe the

following medicinal drug s , in pure form or combination :

c ontrolled substances, as defined in c hapter 893 .

32 . Lorcet is the brand name for me dication containing

hydrocodone and acetaminophen. According to sections 893.02(4)

and 893.03(3)(c), hydrocodone as found in Lorcet 10/650 is a

schedule III controlled substance. A substance in schedule III

has a high potential for abuse and has a curren tly accepted, but

restricted medical use in treatment. Abuse of this substance may

lead to severe psychological or physical dependence.

3 3 . The evidence is clear and convincing that Respondent, a

physician assistant, wrote a prescription for a controlled

substance for RJ without authorization to do so. Specifically,

Respondent was licensed as a physician assistant when she wrote

the prescription for Lorcet. A physician assistant is not

authorized to prescribe any medicinal drug in combination that is

cl assified as a controlled substance under chapter 893. On or

about October 31, 2006, Respondent saw Mr. Heal for a visit at

JHS and prescribed, among other drugs, Lorcet 10/650, 90 tablets.

Petitioner proved by clear and convincing evidence that

Responden t violated section 458.331(1)(nn) (2006), by violating

rule 64B8 - 30.008(1) by prescribing Lorcet, a controlled

substance, without authorization.

3 4 . Section 456.079 requires the Board of Medicine to adopt

disciplinary guidelines for specific offenses. Pe nalties imposed

must be consistent with any disciplinary guidelines prescribed by

rule. See Parrot Heads, Inc. v. DepÓt of Bus. & ProfÓl Reg. , 741

So. 2d 1231, 1233 - 34 (Fla. 5th DCA 1999). Penalties in a

licensure discipline case may not exceed those in effect at the

time a violation was committed. Willner v. DepÓt of ProfÓl Reg.,

Bd. of Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.

denied , 576 So. 2d 295 (Fla. 1991).

3 5 . The Board of Medicine adopted rule 64B8 - 30.015, which

at all times relevant to this proceeding , provided that the

discipline for a violation of any provision of chapter 45 6 or

chapter 45 8 , or any rules adopted pursuant thereto, for any

offense and the potential for patient harm, ranged from a

reprimand to revocation and an adminis trative fine , ranging from

$1,000 to $5,000.

3 6 . At all times relevant to this proceeding,

rule 64B8 - 30.015(3) set s forth possible aggravating and

mitigating circumstances for the Board of Medicine to consider

when imposing discipline. Among those facto rs are: the exposure

of the patient to injury or potential injury, the pecuniary

benefit or self - gain to the licensee, and the disciplinary

history of the licensee in any jurisdiction.

3 7 . Here, as aggravating factors, Respondent exposed the

public to po tential injury or harm due to her prescription of a

controlled substance without a physical examination to justify

the prescription. Also, unauthorized prescription of a

controlled substance by a physician assistant could cause harm to

the public. Respon dent benefitted from financial gain through

the cash payments in exchange for prescriptions. Finally, as a

mitigating factor, Respondent has no prior disciplinary history.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it i s RECOMMENDED that the Board of Medicine enter a f inal

o rder:

1 . F inding that Respondent Sandra A. Lindstrom, P.A.,

violated section 458.331(1)(nn), Florida Statutes (2006) , by

violating Florida Administrative Code Rule 64B8 - 30.008 (2006), as

charged in t he Amended Administrative Complaint;

2 . I mposing a $2,500 fine; and

3 . R evoking RespondentÓs license as a physician assistant .

DONE AND ENTERED this 30 th day of March , 2016 , in

Tallahassee, Leon County, Florida.

S

DAVI D M. MALONEY

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.doah.state.fl.us

Filed with the Clerk of the

Division of Adm inistrative Hearings

this 30 th day of March , 2016 .

COPIES FURNISHED:

Sandra Ann Lindstrom

6726 Pomeroy Circle

Orlando, Florida 32810

Yolonda Y. Green, Esquire

Maciej Lewandowski, Esquire

Department of Health

4052 Bald Cypress Way , Bin C 65

Tallahassee, Florida 32399 - 3265

(eServed)

Andre Ourso, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C 03

Tallahassee, Florida 32399 - 32 53

(eServed)

Nic h ole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(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 f iled with the agency that

will issue the Final Order in this case.