18-003349PL Department Of Health, Board Of Podiatric Medicine vs. Brian J. Altman, Dpm Status: Closed Recommended Order on Thursday, November 15, 2018.

Summary: DOH proved that impaired physician was terminated from PRN monitoring contract for non-compliance without good cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

PODIATRIC MEDICINE,

Petitioner,

vs. Case No. 18 - 3349PL

BRIAN J. ALTMAN, DPM,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursu ant to notice, a final hearing in this cause was held

by video teleconference between sites in Fort Myers and

Tallahassee, Florida, on October 4, 2018 , before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Judson Searcy, Esquire

Adam David Gonzalez Wright, Esquire

Florida Department of Health

Prosecution Services Unit , Bin C - 65

4052 Bald Cypress Way

Tallaha ssee, Florida 32399

For Respondent: Brian Jeffery Altman

18251 Merchants Avenue

Port Charlotte, Florida 33948

STATEMENT OF THE ISSUE

Whether RespondentÓs refusal to comply with modifications

proposed by Professional R esource Network to his monitoring

contract violated section 456.072 (1)(hh), Florida Statutes

(2017) . 1/

PRELIMINARY STATEMENT

On or about May 2, 2018, the Florida Department of Health

(Petitioner), filed a one - count Administrative Complaint against

Respond ent, Brian J. Altman, D.P.M. (Respondent). The

Administrative Complaint charged Respondent with violating

section 456.072(1)(hh) by being terminated from the Professionals

Resource Network (PRN), for failing to comply, without good

cause, with the require ments of his monitoring contract with PRN.

Respondent filed an election of rights on May 14, 2018,

disputing issues of material fact contained in PetitionerÓs

Administrative Complaint and requesting a disputed - fact hearing.

On June 29, 2018, Petitioner fo rwarded the case to the Division

of Administrative Hearings (DOAH) for assignment of an

Administrative Law Judge. By notice issued July 10, 2018, the

case was scheduled for hearing on August 31, 2018. Petitioner

moved for a continuance and on August 8, 2 018, the hearing was

continued and rescheduled for October 4, 2018.

At the disputed fact hearing, PetitionerÓs Exhibits 1, 2,

and 3 were admitted into evidence without objection. Respondent

offered no exhibits into evidence. Petitioner called Respondent

as a fact witness. Petitioner also presented the deposition

testimony of Dr. Alexandria Polles in lieu of live testimony as

PetitionerÓs Exhibit 3. Respondent testified on his own behalf

and called no other witnesses.

A T ranscript of the disputed fact he aring was filed with

DOAH on October 18, 2018. Each party filed a Proposed

Recommended Order and the same have been considered.

FINDING S OF FACT

1. Petitioner is the state agency charged with the

licensing and regulation of the practice of podiatric medi cine

pursuant to section 20.43, and chapters 456 and 461, Florida

Statutes.

2. At all times material to the allegations in the

Administrative Complaint, Respondent was a licensed podiatric

physician within the State of Florida, having been issued license

PO 3818.

3. On or about March 24, 2015, Respondent submitted to the

Florida Board of Podiatric Medicine (Board) an application for

licensure as a podiatric physician. In his application

Respondent disclosed prior criminal conduct, which prompted the

Boar d to condition his licensure Ðupon a positiveÑ evaluation

from PRN, which is designated as the State of FloridaÓs impaired

practitioners program for physicians.

4. On or about November 24, 2015, Respondent entered into a

monitoring contract with PRN. The PRN monitoring contract was

for a term of five years.

5. According to the PRN participant manual, the following

are the types of monitoring contract components provided to

health care professionals:

1. Chemical dependency (CD);

2. Substance abuse;

3. Psychiatric;

4. Dual (CD/Psych);

5. Behavioral;

6. Physical impairment;

7. Concurrent (2 or more problems);

8. Boundary;

9. Specialized;

10. Chronic pain; and,

11. D iagnostic monitoring.

6. At its inception, RespondentÓs PRN monitoring contract

w as a Ðconcurrent type,Ñ which offered Ðboundary and psychiatricÑ

component monitoring services.

7. The PRN monitoring contract contains the following

provisions:

The terms set forth in this Contract,

including its duration, may be subject to

change if PRN , in its sole clinical

discretion, concludes that additional,

higher, or otherwise different, types and

levels of monitoring and other contract

obligations are necessary to ensure the

Participant is able to practice with skill

and safety and otherwise prog ress through the

program.

* * *

Once this Contract becomes effective, any

modifications to this Contract are effective

only when made in writing and signed or

initialed by both the PRN Medical Director

and Participant.

8. Related to the above c ontractual provisions, is the PRN

Participant Manual, Participant Rights statement, which advises

individuals that they have Ðthe right [t]o refuse to participate

in any or all of the components of PRN, [and that] to do so may

result in a formal report to the Department of Health and [their]

Board.Ñ

9. On or about March 31, 2016, the Board granted Respondent

a license to practice as a podiatric physician in the State of

Florida. Although Respondent was issued a license by the Board,

there is no evidence t hat Respondent has ever engaged in the

practice of podiatry in the State of Florida.

10. From its inception through November 2017, Respondent

was in compliance with the terms of his PRN monitoring contract.

However, events commencing around mid - July 2017 eventually

culminated in Respondent opting out of the PRN program.

11. On the morning of July 11, 2017, Respondent contacted

his compliance manager at PRN. Respondent, among other things,

informed his compliance manager that he was not working as a

podi atrist, was struggling financially, his girlfriend had

undergone multiple major surgeries and was having a difficult

recovery, and he was taking Cymbalta, Adderall and Xanax.

12 . The compliance manager immediately shared the new

information received from Respondent with the PRN medical

director who, after considering RespondentÓs history of DUIs, and

his psychological history, determined that Respondent should be

referred for a multi - disciplinary evaluation.

13 . At 10:34 a.m. on July 11, 2017, PRN advised Respondent

via e - mail that he was being referred for a multidisciplinary

evaluation and that the same must be completed before Respondent

would be allowed to return to the practice of podiatry.

14 . On September 12, 2017, Respondent complied, and offered

himself for the multidisciplinary evaluation prescribed. The

multidisciplinary evaluation team diagnosed Respondent with

alcohol use disorder Î moderate, evaluate for severe; sedative

use, evaluate for use disorder; opioid use, evaluate for use

disorder; stimulant use, evaluate for use disorder; persistent

depressive disorder (dysthymia); narcissistic traits; paranoid

and dependent features, likely borderline and avoidant features;

and history of lumbar pain.

15 . The multidisciplinary evaluation team opin ed that,

prospectively, Respondent will not be able to practice as a

podiatric physician in the State of Florida with reasonable skill

and safety and recommended that Respondent enter a PRN approved

residential treatment program. The evaluation team also

recommended that Respondent be placed on a PRN monitoring

contract, with a new contract start date, following completion of

the residential program.

16 . On or about October 6, 2017, PRN discussed the findings

and recommendations of the multidisciplinary e valuation with

Respondent.

17 . On November 6, 2017, PRN offered Respondent four

options for PRN approved treatment programs, and imposed a

deadline of November 13, 2017, to enter treatment. PRN also

requested that Respondent execute a voluntary withdrawa l from

practice form and return it to PRN the following day .

18 . On November 6, 2017, Respondent notified PRN that he

specifically was not going to enter treatment as recommended by

the multidisciplinary team and that generally he was no longer

going to p articipate in any PRN program.

19 . Respondent has not returned an executed voluntary

withdrawal from practice form as requested by PRN, nor has

Respondent entered treatment as directed by PRN.

20 . On January 16, 2018, PRN terminated RespondentÓs PRN

moni toring contract and Respondent has not reentered the program.

Respondent testified that if he were ordered by the Board to

reenter PRN, he may be unwilling to comply, unless he finds the

terms favorable.

CONCLUSIONS OF LAW

2 1 . Section 456.072(1)(hh), Flo rida Statutes (2017),

subjects a physician to discipline for being terminated from a

treatment program for impaired practitioners, that is overseen by

an impaired practitioner consultant as described in section

456.076 for failure to comply, without good c ause, with terms of

the monitoring or treatment contract entered into by the

physician, or for not successfully completing any drug treatment

or alcohol treatment program.

22 . Because it seeks to impose license discipline, the

Petitioner has the burden to prove its 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 preclude evidence that is ambiguous.Ñ Westinghouse Elec . Corp.

v. Shuler Bros., Inc . , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

23. Respondent admits that he ceased complying with his PRN

monitoring contract but contends that good cause for doing so

exists because PRN attempted, without contractual authority, to

unilaterally change the t erms of the monitoring contract from

ÐBoundry/Mental Health to Mental Health/Substance Abuse.Ñ

24. Petitioner met its burden of proof as to the allegations

set forth in the Administrative Complaint. Contrary to

RespondentÓs assertion, the PRN monitoring contract expressly

allows PRN Ðin its sole clinical discretionÑ to modify the types

of monitoring contract components that it deems necessary to

ensure that Respondent is able to practice with the requisite

level of skill and safety. Respondent failed to demonstrate good

cause for not complying with his PRN monitoring contract.

25. Pursuant to section 456.079 the Board adopted Florida

Administrative Code Rule 64B18 - 14.002, which provides notice of

the range of disciplinary penalties that could result from a

violation of section 456.072.

26. Rule 64B18 - 14.001(51) provides that the Board shall,

when it finds a licensee has violated section 456.072(1)(hh) for

the first time, impose a penalty of suspension until the licensee

proves the ability to practice wit h reasonable skill and safety.

27. Rule 64B18 - 14.003 sets out aggravating and mitigating

circumstances for determining whether to deviate from the penalty

guidelines. It is unnecessary to make any findings on aggravating

or mitigating circumstances becau se consideration of the same

would not alter the penalty.

RECOMMENDATION S

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Podiatric Medic ine enter

a final order : finding that the Respondent violated sec tion

456.072(1)(hh) ; and suspending his license until such time as he

demonstrates his ability to practice with reasonable skill and

safety as evidenced by Respondent entering into and complying

with a PRN monitoring contact.

DONE AND ENTERED this 15th day of November , 2018 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of November , 2018 .

ENDNOTE

1/ All subsequent references to Florida Statutes will be to 2017,

unless otherwise indicated .

COPIES FURNISHED:

Brian Jeffery Altman

18251 Merchants Avenue

Port Charlotte, Florida 33948

(eServed)

Judson Searcy, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Adam David Gonzalez Wright, Esquire

Florida Department of Health

Bin - C65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

Anthony B. Spivey, DBA, Exec utive Dir ector

Florida Department of Health

Bin C - 07

4052 Bald Cypress Way

Tallahassee, Flor ida 32399 - 3257

(eServed)

Louise Wilhite - St Laurent, Interim Gen eral Counsel

Florida Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wri tten 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.