18-000430PL Department Of Health, Board Of Medicine vs. Neelam Uppal, M.D. Status: Closed Recommended Order on Tuesday, June 19, 2018.

Summary: DOH proved that Respondent failed to pay admin. fine and costs, per prior FO, warranting additional $1,000 fine and license suspension until paid, or payment plan approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 18 - 0430PL

NEELAM UPPAL, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On May 3, 2018, Administrative Law Judge J. Lawrence

Johnston of the Florida Division of Administrative Hearings

(ÐDOAHÑ) conducted a disputed - fact hearing by video

teleconference in St. Petersburg and Tallahassee, Florida.

APPEARANCES

For Petitioner: Virginia Edwards, Esquire

Sarah E. Corrigan, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

For Respondent: Neelam Uppal, M.D. , pro se

Post Office Box 1002

Largo, Florida 33779

STATEMENT OF THE ISSUE S

Whether the Respondent, a licensed physician, should be

subject to discipline under section 458.33 1(1)(x), Florida

Statutes ( 201 6) , 1/ for violating the Final Order entered by the

Board of Medicine in case DOH - 15 - 0017 - FOF - MQA by failing to pay

the administrative fine a nd costs , as required; and, if so, the

appropriate discipline.

PRELIMINARY STATEMENT

On November 6, 2017, the Petitioner filed an Administrative

Complaint against the Respondent alleging violations of the Final

Order. The Respondent disputed the charges and requested a

hearing. The matter was forwarded to DOAH.

Allegations of a failure to verify completion of a medical

records course were dropped, leaving the charge of fail ure to pay

the fine and costs.

The hearing was held on May 3, 2018.

At the hearing, the Petitioner called one witness, and the

PetitionerÓs Exhibits A through C, E th rough I, and L were

received in evidence. The Respondent testified on her own behalf

and offered her Exhibits 1 through 7 , which were received in

evidence. A T ranscript of the final hearing was filed, and each

party filed a proposed recommended order . T he Respondent also

filed a memorandum of law. The post - hearing submissions have

been considered.

FINDING S OF FACT

1. On January 8, 2015, the Florida Board of Medicine

rendered Final Order DOH - 15 - 0017 - FOF - MQA. The Final Order

resolved charges against the Respondent, a licensed physician who

holds license ME 59800, in the administrative complaints in DOH

cases 2009 - 13497, 2011 - 06111, and 2011 - 17799.

2. The Final Order suspended Respondent 's license for six

months and required her to: pay a $10,000 administrative fine

and $74,323.56 of costs within a year from reinstatement of her

license; and document completion of a med ical records course

sponsored by the Florida Medical Association and five hours of

continuing medical education in the area of ethics within a year

from the filing of the Final Order. The Final Order also placed

the Respondent on probation for two years, subject to specific

supervision and board appearance requirements, and included the

following tolling provision :

In the event the Respondent leaves the State

of Florida for a period of 30 days or more or

otherwise does not or may not engage in the

practice of medicine in the state of Florida,

then certain provisions of the requirements

in the Final Order shall be tolled and shall

remain in a tolled status until Respondent

returns to the active practice of medicine in

the state of Flori da.

* * *

Unless otherwise set forth in the Final

Order, the following requirements and only

the following requirements shall be tolled

until the respondent returns to active

practice:

(A) The time period of probation shall be

tolled.

(B) The provisions regarding supervision

whether direct or indirect by the

monitor/supervisor, and required reports from

the monitor/supervisor shall be tolled.

3 . It is clear from the language of the tolling provision

that it did not apply to: the req uirement to pay an

administrative fine and costs within a year of license

reinstatement; or the requirement to document completion of the

medical records course and five hours of continuing medical

education in ethics within a year of license reinstatement .

4 . After entry of the Final O rder, the Respondent left

Florida and moved to New York. Initially, she practiced medicine

in New York, using her New York license, and earned income doing

so. However, New York initiated license disciplinary proceedings

based on the Florida Final Order , and she was unable to continue

to practice medicine in New York . She also had health issues

that inhibited her practice of medicine.

5 . By the terms of the Final Order, the Re spondent's

medical license was reinstated on July 8, 2015, and the fine and

costs were due to be paid on July 7, 2016. The fine and costs

were not paid by the due date.

6 . Towanda Burnett, medical compliance officer employed by

the Petitioner, contacted the Respondent in July and August 2017

concerning her apparent failure to comply with the terms of the

Final Order.

7 . As to the obligation to take approved courses of

education, the Respondent took the position that she had taken

the required courses, or had tried to take them, but was

prevented from doing so by the Petitioner . However, she did not

document her completio n of the required courses , which resulted

in one of the charges in the Administrative Complaint filed on

November 6, 2017 . Eventually, during preparation for the hearing

in this case, the Petitioner determined that the Respondent was

in compliance with th at obligation , and that charge was dropped .

8 . As to the fine and costs, the Respondent took the

position that her obligation to pay was stayed because she filed

for bankruptcy. Information regarding the RespondentÓs

bankruptcy proceedings was reviewed by attorneys in the

PetitionerÓs Prosecution Services Unit, who determined that the

RespondentÓs obligation to pay was not stayed. The Respondent

disagreed and declined to make any payments.

9 . O ne of the RespondentÓs defen ses relies on her direct

appeal s from the Final Order in the Florida courts. However, at

no time did any of the appellate courts stay the Final Order .

Ultimately, the direct appeals were denied.

10 . The Respondent also argues that the Final Order is

Ð void ,Ñ Ðinvalid,Ñ or Ðmoo tÑ for Ð no n - compliance of the mandate Ñ

issued by the Second District Court of Appeal after her appeals

were denied. This argument is confusing and unpersuasive .

1 1 . At times, the Respondent seems to be arguing that the

tolling provision applied to the fine and costs and that the

Ðmandate of the Final OrderÑ was violated by the Petitioner by

its attempt to enforce the fine and costs assessment in the Final

Order before the Respondent resumed the practice of medic ine in

Florida. This argument has no merit because the tolling

provision clearly only applies to her probation -- i.e. , her two -

year probation runs from the time she resumes the practice of

medicine in the state of Florida .

12 . At other times, the Respondent seems to be saying her

two - year probation was not tolled, but rather began when she

resumed the practice of medicine in New York for a period of

time, and was already over, placing the Petitioner in violation

of the Ðmandate of the Final OrderÑ by taking the position that

the Respondent was still on probation. This argument also has no

merit.

1 3 . It is possible that the RespondentÓs argument relate s

to her testimony that an employee of the Petitioner prevented her

from taking a continuing education course required by the Final

Order . However, the charge of failure to document the required

course has been resolved and dropped. In any event, whatever

happened with regard to the RespondentÓs attempts to take the

course did not Ð void Ñ or ÐmootÑ the Final Order.

14 . The Respondent also attempted to attack the Final Order

in litigation she filed as case 1:16 - cv - 03038 - VSB in federal

district court in New York on April 25, 2016. The Respondent Ós

complaint named the Florida Board of Medicine and the Florida

Department of Health as defendants, along with the New York

Department of Health . The Florida agencies contested the courtÓs

jurisdiction over them, and an amended complaint filed on

September 22, 2016, dropped the Florida Department of Health and

Florida Board of Medicine as parties. On February 14, 2017, the

Respondent sought a stay and injunctive relief against the

remaining defendant in that case, but the New York court denied

the request on Septembe r 30, 2017. On October 16, 2017, the

Respondent appealed this ruling to t he United State s Court of

Appeal s , Second Circuit, in case 17 - 3358, listing the Florida

Department of Health and the Florida Board of Medicine as

appellees. (At the hearing in this case, the Respondent

expressed that she was surprised to learn that the Florida

agencies had been dropped from this litigation and that she

intended to further amend to add them back.) The Respondent has

repeatedly requested extens ions of time, and the matter was still

in court at the time of the hearing in this case . N either

federal cou rt ever stayed the Final Order . T his federal

litigation is not an impediment to enforcement of the Final Order

by the Petitioner .

15 . The Re spondent also defends against the charges in this

case based on various bankruptcy filings she has made.

16 . In 2015, the Respondent filed for chapter 13 bankruptcy

in the United States Bankruptcy Court, Middle District of

Florida , Tampa Division, in case number 8:15 - bk - 00594 - CPM . She

listed the Department of Health as a creditor. On June 3, 2015,

the case was dismissed on motion of the trustee , and any funds

held by the trustee were ordered to be return ed to the d ebtor .

17 . On August 15, 2016, the Respondent fi led for bankruptcy

under chapter 13 in United States Bankruptcy Court for the

Southern District of New York (Manhattan Division) in case 16 -

12356 - cgm. The Respondent again listed the Depa rtment of Health

as a creditor, and the Respondent believed the bankruptcy

automatically stayed her obligations to pay the fine and costs

under the Final Order , as she told the PetitionerÓs compliance

officer, Ms. Burnett , when she contacted the Respondent in the

summer of 2017 .

18 . The Petitioner points to filings the Respondent made in

in case 16 - 12356 - cgm as evidence of the RespondentÓs supposed

knowledge that no automatic stay was in effect. Specifically, on

September 13, 2017, the Respondent filed an Emergency Motion for

Stay Pending Appeal, or in the alternative fo r temporary

Administrative stay, which was denied by the bankruptcy court on

September 19, 2017 . However, the docket entries introduced into

evidence in this case are difficult to deciph er, and it is not

clear that they refer to a stay of the collection of the fine and

costs imposed by the Final Order.

19 . On November 22, 2017, the New York bankruptcy court

dismissed the RespondentÓs case 16 - 12356 - cgm . On November 27,

2017, the Respondent appealed the dismissal to the United States

District Court for the Southern District of New Y ork . The appeal

was assigned case number 1:17 - cv - 09429 - JGK. On December 1, 2017,

the Respondent filed in case 16 - 12356 - cgm for a stay pending

appeal, which was denied by the bankruptcy court on December 21,

2017 . On February 6, 2018, the Res pondent moved in district

court for a stay pending appeal, or in the alternative, for a

temporary administrative stay. On March 21, 2018 , the district

court affirmed the dismissal of the b ankruptcy case , and denied

the motion for a stay pending appeal as moot.

20 . On March 30, 2018, the Respondent sought review of the

district courtÓs affirmance in the federal Second Circuit Court

of Appe als . The case number of th e circuit court appeal is 18 -

890. On March 30, 2018 , the Respondent filed in case 18 - 890 for

an e mergency injunction and stay ; the filing was defective , for

unspecified reasons , according to a court docket entry . On

April 6, 2018, the Respondent filed in case 18 - 890 for a stay

pursuant to 11 U nited States Code section 362(c)(4)(c) ; this

filing also was defective , for unspecified reasons , according to

the docket .

21 . In December 2017, after the New York bankruptcy court

dismissed case 16 - 12356 - cgm, the Respondent filed a second

bankruptcy case in the United States Bankruptcy Court for the

Middle District of Florida, Tampa Division. That filing was

designated case 8:17 - bk - 10140. On January 11, 2018, the Florida

bankruptcy court d ismissed case 8:17 - bk - 10140 with prejudice;

labeled the Respondent an Ðabusive serial bankruptcy filer Ñ ;

Ðenjoined, barred, and prohibited [the Respondent ] from

commencing any bankruptcy peti tionÑ for a pe riod of two years ;

and caused notice to be given that state courts should not halt

debt collection proceedings based on any bankruptcy petition the

Respondent attempted to file in violation of the courtÓs

injunction against her. On January 31 , 2018 , the Florida

bankruptcy court denied the RespondentÓs motion for

reconsideration.

2 2 . The RespondentÓs bankruptcy filings are not a complete

defense against the Petitioner Ós charges. The Respondent was in

violation of the Final Order for failure to pay the fine and

costs as of July 7 , 2016. No bankruptcy stay was in effect at

that time. However, the PetitionerÓs collection of those debts

was stayed from August 8, 2016 , through November 22, 2017. See

11 U.S.C. § 362(a) (2016).

23 . The PetitionerÓs compliance office has a procedure for

a payment plan when fines and costs cannot be paid at once. In

order to obtain a payment plan, the licensee must propose a

payment plan, with specific amounts and due dates, and submit

documentation, including : two denial letters from any financial

or loan institutions; a copy of the 1040 tax return; copies of

bank statements; and any other relevant financial information .

Once that information is received, it is sent to the chairperson

of the Probati on Committee of the Board of Medicine, who either

approves or denies the payment plan. The Respondent did not

submit the required information, pay anything towards the fine

and costs, or express her intention to pay.

CONCLUSIONS OF LAW

2 4 . Because the Petitioner seeks to impose license

discipline, it has the burden to prove the allegations by clear

and convincing evidence. See DepÓt of Banking & Fin. v. Osborne

Stern & Co., Inc. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). This Ðentails both a

qualitative and quantitative standard. The evidence must be

credible; the memories of the witnesses must be clear and without

confusion; and the sum total of the evidence must be of

sufficient weight to convince the trier of fact without

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

also Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983). ÐAlthough this standard of proof may be met where the

evidence is in conflict, . . . it seems to precl ude evidence that

is ambiguous.Ñ Westinghouse Elec. Corp. v. Shuler Bros., Inc. ,

590 So. 2d 986, 988 (Fla. 1st DCA 1991).

2 5 . 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. 3d DCA 2002);

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

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

revocation of a license the grounds 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 licensee.Ñ

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

2 6 . The grounds proven in support of the PetitionerÓs

assertion that the RespondentÓs license should be discipl ined

must be those specifically alleged in the Amended Administrative

Complaint. See e.g. , Trevisani v. DepÓt of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005); Cottrill v. DepÓt of Ins. , 685 So. 2d

1371 (Fla. 1st DCA 1996); Kinney v. DepÓt of State , 501 So. 2d

129 (Fla. 5th DCA 1987); Hunter v. DepÓt of ProfÓl Reg. , 458

So. 2d 842 (Fla. 2d DCA 1984). Due process prohibits the

Petitioner from taking disciplinary action against a licensee

based on matters not specifically alleged in the charging

instruments, unless those matters have been tried by consent.

See Shore Vill. Prop. OwnersÓ AssÓn, Inc. v. DepÓt of Envtl.

Prot. , 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Delk v. DepÓt of

ProfÓl Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).

2 7 . Section 458.33 1(1)(x), Florida Statutes ( 2016) , 2/

provides that the violation of a lawful order of the Board of

Medicine previously ent ered in a disciplinary hearing is a ground

for denial of a license or disc iplinary action, as specified in

s ection 456.072(2) .

2 8 . The Pe titioner alleges that the Respondent violated

section 458.331(1)(x) by failing to comply with the Final Order

in case numbers 2009 - 13497, 2011 - 06111 , and 2011 - 17799 when she

failed to pay, or set up payment arrangements for, the

administrative fine a nd costs i mposed by it . The Petitioner has

proven the alleged violation by clear and convincing evidence .

However, while the Respondent did not prove she had a complete

defense to the charges, the Petitioner Ós collection of the fine

and costs was stayed between August 16, 2016, and November 22,

2017, because of the RespondentÓs bankruptcy case 16 - 12356 - cgm in

New York . See 11 U.S.C. § 362(a) (2016). This means a stay was

in effect from a month after the debt became due until almost a

month after the filing of the Administrative Complaint in this

case.

2 9 . The Petitioner suggests in its proposed recommended

order that the appropriate discipline for this violation is a

reprimand , a $1,000 administr ative fine, and the suspension of

the RespondentÓs medical license until she pays the outstanding

administrative fines and costs in full. This penalty is within

the broad penalty guideline in Florida Adminis trative Code Rule

64B8 - 8.001(2)(x)2. ( Rev. Ja n. 1, 2015 ) , 3/ except for the $1,000

administrative fine , which is below the guideline. A deviation

below the guideline can be justified by the severity of the

offense, the absence of any evidence of potential for patient

harm, and consideration of the aggravating and mitigating factors

in section (3) of the rule , including the circumstances of the

New York bankruptcy proceeding . In addition , the Board should

consider allowing the Respondent to apply for a payment plan,

with the req uired documentation as described in Finding 23 ,

supra , and should consider lifting her license suspension if a

payment plan is approved by the chairperson of its Probation

Committee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order :

(1) f inding that the Respondent violated section

458.331(1)(x), Florida Statutes (2016) , by failing to pay the

administrative fine and costs imposed , as required by Final Order

DOH - 15 - 0017 - FOF - MQA;

(2) i ssuing a reprimand against the RespondentÓs Florida

medical license;

(3) i mposing an administrative fine of $1,000 (in addition

to the administrative fine imposed by Final Order DOH - 15 - 0017 -

FOF - MQA ) ; and

(4) s uspe nding the RespondentÓs Florida medical license

until such time as she pays all outstanding administrative fines

and costs in full , or unti l the chair person of the BoardÓs

Probation Committee approves a payment plan .

DONE AND ENTERED this 19th day of June , 2018 , in

Tallahassee, Leon County, 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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of June , 2018 .

ENDNOTE S

1/ The Administrative Complaint alleged a violation of this

section of the Florida Statutes (2015 - 2016). The alleged

violation occurred when the Respondent failed to pay the

administrative fine and costs by July 8, 2016. For that reason,

the 2016 codification of the Florida Statutes applies to the

alleged violation. In any event, there was no change in the

pertinent provision of the statute between 2015 and 2016

2 / See endnote 1.

3 / This is the last revision of the rule, and the one that

applies to the RespondentÓs violation.

COPIES FURNISHED:

Virginia Edwards, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Neelam Uppal, M.D.

Post Office Box 1002

Largo, Florida 33779

(eServed)

Sarah E. Corrigan, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 23299

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C03

Tallahassee, Florida 32399 - 3253

(eServed)

Nichole C. Geary, General Counsel

Depa rtment 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 filed with the agency that

will issue the Final Order in this case.