Final Order No. DOH-I2-0486-9 MQA FILED DAT 4 Dep 1 12 DEPARTMENT OF HEALTH, Petitioner, STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE 11 u Agency IL 4 A 4.* lerk VS. OCTAVIO P. FERNANDEZ, D.C., Case Nos.: 2010-24153; 2010-24154; 2010-18950 License No.: CH 6723 Respondent. FINAL ORDER THESE MATTERS came before the Board of Chiropractic Medicine (hereinafter "Board") at a duly-noticed public meeting on February 17, 2012, in Orlando, Florida. Petitioner filed Administrative Complaints seeking disciplinary action against Respondent's license to practice as a chiropractic physician. A copy of each Administrative Complaint is attached to and incorporated as part of this Final Order. Petitioner was represented by Tari Rossitto-Van Winkle, Assistant General Counsel. Respondent was present with his counsel, Karen Barnet-Backer, Attorney at Law. Petitioner and Respondent have stipulated to a disposition of these cases. After considering the presentation of the parties and reviewing the record of each case, the Board voted to adopt the Settlement Agreement as an appropriate settlement of these cases. A copy of the Settlement Agreement is attached to and made a part of this Final Order. The Board voted to extend the time period for payment of the fines and costs from seven years to ten (10) years. 1
The parties shall be governed accordingly. Pursuant to Section 456.072(4), Florida Statutes, the Department is authorized to collect costs for investigation and prosecution. The evidence presented to the Board was that the costs associated with these matters are five thousand one hundred thirty-six dollars and fifty-three cents ($5,136.53). Payment shall be made by certified or cashier's check or money order to the Department of Health, Compliance Management Unit, Board of Chiropractic Medicine Compliance Officer, P.O. Box 6320, Tallahassee, FL 32324-6320, within ten (10) years of the filing date of this Final Order and in the manner set forth in the incorporated Settlement Agreement. IT IS THEREFORE ORDERED that the Settlement Agreement is adopted and Respondent is hereby ordered to reimburse the Department costs in the amount of $5,136.53. This Final Order shall become effective upon filing with the Clerk of the Department of Health. DONE AND ORDERED this 5 day of, 2012. BOARD OF CHIROPRACTIC MEDICINE 7,74"2111111. _,_ Bruce on b N eterd - ecutive alf of Rod Jones, D.C., C irector 2
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to: Octavio Fernandez, D.C., 2645 SW 37th Avenue, Suite 704, Miami, Florida 33133 and to his counsel of record, Karen Barnet-Backer, 5040 Northwest 7th Street, Penthouse I, Miami, Florida 33126; and by interoffice mail to: Tari Rossitto-Van Winkle, Assistant General Counsel, Department of Health, 4052 Bald Cypress Way, Bin # C-65, Tallahassee, Florida 32399-3265; and Deborah B. Loucks, Assistant Attorney General, Office of the Attorney General, PL-01, The Capitol, Tallahassee, Florida 32399-1050, on (01 1.0, 2012. gallid0a4i Deputy Agency Clerk 3
DEPARTMENT OF HEALTH, STATE OF FLORIDA DEPARTMENT OF HEALTH PETITIONER, V. OCTAVIO P. FERNANDEZ, D.C., CASE NO. 2010-18950 2010-24153 2010-24154 RESPONDENT, I SETTLEMENT AGREEMENT AND WAIVER OF PROBABLE CAUSE OCTAVIO P. FERNANDEZ, D.C., referred to as the "Respondent," and the Department of Health, referred to as "Department" stipulate and agree to the following Settlement Agreement and Waiver of Probable Cause and to the entry of a Final Order of the Board of Chiropractic Medicine, referred to as "Board," incorporating the Stipulated Facts and Stipulated Disposition in these matters. Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes, and Chapter 456, Florida Statutes, and Chapter 460, Florida Statutes. Page 1 of 26 CADocurnents and Settings\kbacker\Local Settings\Temporary Internet Files\OLK42 \Fernandez Octavio 2010-18950 2010-24153 2010-24154 VFOs - failure to provide records record keeping upcoding (2).doc
STIPULATED FACTS 1. At all times material hereto, Respondent was a licensed chiropractic physician within the State of Florida, having been issued license number CH 6723 on or about January 28, 1994. 2. The Department properly served Respondent with an Administrative Complaint, in each of the three (3) above cited cases, that charged Respondent with alleged violations of Chapter 456 and/or Chapter 460, Florida Statutes, and/or the rules adopted pursuant thereto. True and correct copies of the three (3) Administrative Complaints are attached hereto as Exhibits "Aff, "B" and "C". STIPULATED CONCLUSIONS OF LAW AND WAIVER PROBABLE CAUSE 1. Respondent admits that in his capacity as a chiropractic physician he is subject to the provisions of Chapters 456 and 460, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits the allegations of fact contained in the three (3) above referenced Administrative Complaints. 3. Respondent admits that the facts alleged in the three (3) above referenced Administrative Complaints constitute violations of Chapter 456 and/or 460, Florida Statutes, as alleged in the Administrative Complaints. 2
4. Respondent further admits that while he has completed all the CEU's required by Final Order DOH-10-2199-F01-MQA filed September 15, 2010, for case number 2009-20698, and Final Order DOH-09-1902-S-MQA filed September 15, 2009, they were not completed in a timely manner under the terms of the two (2) orders. 5. Respondent further admits that he is not in a financial position to comply with paragraph two (2) of the Board's Final Order, or the Board's Assessment of Costs, in Final Order DOH-11-828-F01-MQA, entered April 15, 2011, in Case Numbers 2009-00715 and 2009-00733, which requires Respondent to pay $10,000.00 of a $40,000.00 fine, and $1,553.07 of a $6,212.27 cost assessment, by April 15, 2012. Respondent further admits that he will not be able to comply with the above reference portions of that Final Order by April 15, 2012; and will be in violation of that Final Order after April 15, 2012, which will constitute violations of Chapter 456 and/or 460, Florida Statutes. 6. In order to expedite the consideration and resolution of this and potential future actions by the Department based on Respondent's anticipated violation of the above referenced portions of the April 15, 2011, Final Order DOH-11-828-FO1-MQA, for failure to timely pay the fines and 3
costs assesses in Case Numbers 2009-00715 and 2009-00733, and for violation of Final Order DOH-10-2199-F01-MQA filed September 15, 2010, for case number 2009-20698, and Final Order DOH-09-1902-5-MQA filed September 15, 2009, for not completing the required CEUs in a timely fashion, Respondent, being fully advised of the consequences of so doing, hereby waives the statutory privilege of confidentiality of Section 456.073(10), Florida Statutes, and waives any determination of probable cause by the Probable Cause Panel, regarding any future complaints by the Department for failure to timely pay the fines and costs set out in the above referenced Final Order DOH-11-828-FO1-MQA, entered April 15, 2011, in Case Numbers 2009-00715 and 2009-00733, and for violation of Final Order DOH-10-2199-F01-MQA filed September 15, 2010, for case number 2009-20698, and Final Order DOH-09-1902-S-MQA filed September 15, 2009, for not completing the required CEUs in a timely fashion. By signing this Settlement Agreement and Waiver of Probable Cause, Respondent understands that the record and the potential complaint(s) for violation(s) of Final Orders DOH-11-828-FO1-MQA, DOH-10-2199-F01-MQA and DOH-09-1902-S-MQA become public record and remain public record
and that the information is immediately accessible to the public. Section 456.073(10), Florida Statutes. 7. The Department waives its right to file additional Administrative Complaints against the Respondent for failure to timely pay the fine and cost assessment set out in the Board's Final Order DOH-11-828-FO1-MQA, entered April 15, 2011, in Case Numbers 2009-00715 and 2009-00733, and for violation of Final Order DOH-10-2199-F01-MQA filed September 15, 2010, for case number 2009-20698, and Final Order DOH-09-1902-S-MQA filed September 15, 2009, for not completing the required CEUs in a timely fashion, upon the filing of the Final Order of the Board Accepting this Settlement Agreement and Waiver of Probable Cause, which shall incorporate and supersede the Board's Final Order DOH-11-828-FO1-MQA, entered April 15, 2011, in Case Numbers 2009-00715 and 2009-00733. 8. Respondent and the Department agree that this Stipulated Disposition for case numbers 2010-18950, 2010-24153, 2010-24154, 2009-00715 and 2009-00733 is acceptable. [ The remainder of this page is intentionally left blank] 5
STIPULATED DISPOSITION 1. Reprimand - The Respondent's license to practice chiropractic medicine shall be reprimanded by the Board of Chiropractic Medicine with regard to these incidents. 2. Fine - The Board of Chiropractic Medicine shall NOT impose any additional administrative fines against the license of Respondent for the violations of Final Orders as set out in Case Numbers 2010-18950, 2010-24153, 2010-24154. 3. Reimbursement Of Costs - Pursuant to Section 456.072, Florida Statutes, Respondent agrees to pay the Department for any costs incurred in the investigation and prosecution of Case Numbers 2010-18950, 2010-24153, 2010-24154. Such costs exclude the costs of obtaining supervision or monitoring of the practice, the cost of quality assurance reviews, and the Board's administrative cost directly associated with Respondent's probation, if any. The current estimate of the Department's costs in these three (3) cases is four thousand, five hundred, eighty-three dollars and fifty-seven cents ($4,583.57) [2010-18950 = $1,955.30; 2010-24153 = $1,340.60; and 2010-24154 = $1,287.64] but this amount will 6
increase prior to the Board meeting where this Settlement Agreement and Waiver of Probable Cause is presented. Respondent will pay the costs to the Department of Health, Compliance Management Unit, Bin C76, P.O. Box 6320, Tallahassee, Florida 32314-6320, Attention: Board of Chiropractic Medicine Compliance Officer, within seven (7) years of the issuance of a Final Order in these cases accepting this Settlement Agreement and Waiver of Probable Cause, with payments being made quarterly, in twenty-eight (28) equal payments, for the total costs at the time of the hearing accepting this Settlement Agreement and Waiver of Probable Cause, with the first payment being due ninety (90) days from the date of the filing of the Final Order in these cases. All costs shall be paid by cashier's check or money order only. Any post-board costs, such as the costs associated with probation, are not included in this Settlement Agreement and Waiver of Probable Cause. RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THESE COSTS IS HIS LEGAL OBLIGATION AND RESPONSIBILITY AND RESPONDENT AGREES TO CEASE PRACTICING IF THE COSTS ARE NOT PAID AS AGREED TO IN 7
THIS SETTLEMENT AGREEMENT AND WAIVER OF PROBABLE CAUSE, SPECIFICALLY: IF WITHIN ONE-HUNDRED, TWENTY (120) DAYS OF THE DATE OF FILING OF THE FINAL ORDER, RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION THAT THE FULL AMOUNT OF HIS FIRST QUARTERLY COST PAYMENT HAS BEEN RECEIVED, AND WITHIN THIRTY (30) DAYS OF EACH QUARTERLY COST PAYMENT THEREAFTER, RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION FROM THE BOARD OF CHIROPRACTIC MEDICINE'S COMPLIANCE OFFICER, RESPONDENT AGREES TO CEASE PRACTICING UNTIL SUCH TIME AS WRITTEN CONFIRMATION IS RECEIVED BY RESPONDENT FROM THE BOARD OF CHIROPRACTIC MEDICINE'S COMPLIANCE OFFICER. 4. Payment of Past Due Fines and Costs, and Fines and Costs from Final Order DOH-11-828-F01-MQA, in Case Numbers 2009-00715 and 2009-00733 - Respondent admits and acknowledges that he owes to the Department of Health $62,464.03 in Fines and Costs from the following Final Orders of the Board:
A) Final Order 2010D0H-09-1902-S-MQA, entered 9/15/2009 in case number 2008-24266, Fine - $2,000.00, Costs - $1,895.76; B) Final Order DOH-10-2199-F01-MQA, entered 9/15/2010 in case number 2009-20698, Fine - $5,000.00, Costs - $1,758.04; C) Final Order DOH-10-2197-F01-MQA, entered 9/15/2010 in case number 2009-23333, Fine - $5,000.00, Costs - $597.78; and D) Final Order DOH-11-828-F01-MQA, entered 4/15/2011 in case number 2009-00715 and 2009-00733, Fine - $40,000.00, Costs - $6,212.27. Respondent shall pay these past due fines and costs to the Department of Health, Compliance Management Unit, Bin C76, P.O. Box 6320, Tallahassee, Florida 32314-6320, Attention: Board of Chiropractic Medicine Compliance Officer, within seven (7) years of the issuance of a Final Order in the above captioned cases accepting this Settlement Agreerrient and Waiver of Probable Cause, with payments being made quarterly, in twenty-eight (28) equal quarterly payments, with the first payment being due ninety (90) days from the date of the filing of the Final Order in these cases. All fines and costs shall be paid by cashier's check or money order only. 9
RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THESE FINES AND COSTS IS HIS LEGAL OBLIGATION AND RESPONSIBILITY AND RESPONDENT AGREES TO CEASE PRACTICING IF THE FINES AND COSTS ARE NOT PAID AS AGREED TO IN THIS SETTLEMENT AGREEMENT AND WAIVER OF PROBABLE CAUSE, SPECIFICALLY: IF WITHIN ONE-HUNDRED, TWENTY (120) DAYS OF THE DATE OF FILING OF THE FINAL ORDER, RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION THAT THE FULL AMOUNT OF HIS FIRST QUARTERLY FINE AND COST PAYMENT HAS BEEN RECEIVED, AND WITHIN THIRTY (30) DAYS OF EACH QUARTERLY FINE AND COST PAYMENT THEREAFTER, RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION FROM THE BOARD OF CHIROPRACTIC MEDICINE'S COMPLIANCE OFFICER, RESPONDENT AGREES TO CEASE PRACTICING UNTIL SUCH TIME AS WRITTEN CONFIRMATION IS RECEIVED BY RESPONDENT FROM THE BOARD OF CHIROPRACTIC MEDICINE'S COMPLIANCE OFFICER. 5. Suspension- Upon the filing of the Final Order accepting this Settlement Agreement and Waiver of Probable Cause Respondent's 2 0
license to practice Chiropractic Medicine shall be suspended until such time as Respondent pays all past due fines and costs, all fines and costs due under Final Order DOH-11-828-F01-MQA, entered 4/15/2011 in Case Numbers 2009-00715 and 2009-00733, and all costs assessed pursuant to paragraph three (3) of this Settlement Agreement and Waiver of Probable Cause, as follows: A) $3,895.76 - Case Number 2010-18950 violation of Final Order 2010D0H-09-1902-5-MQA, entered 9/15/2009 in case number 2008-24266, Fine - $2,000.00, Costs - $1,895.76; B) $6,758.04 (Case Number 2010-24154 violation of Final Order DOH-10-2199-F01-MQA, entered 9/15/2010 in case number 2009-20698, Fine - $5,000.00, Costs - $1,758.04); C) $5,597.78 (Case Number 2010-24153 violation of Final Order DOH-10-2197-F01-MQA, entered 9/15/2010 in case number 2009-23333, Fine - $5,000.00, Costs - $597.78); D) $46,212.27 (Final Order DOH-11-828-F01-MQA, entered 4/15/2011 in case number 2009-00715 and 2009-00733, Fine - $40,000.00, Costs - $6,212.27); and E) $4,583.57 - But this amount will increase prior to the Board meeting where this Settlement Agreement and Waiver of Probable Cause is presented. However, the Board will stay this suspension as long as Respondent remains in full and complete compliance with all the terms and conditions of 11
the Final Order in these cases. If, however, for any reason, Respondent fails to remain in full and complete compliance with all the terms and conditions of the Final Order in these cases, Respondent's license shall be immediately SUSPENDED and Respondent will be required to appear before the Board. The Board shall retain jurisdiction, and have absolute discretion, to impose additional terms and condition of re-instatement not listed in this Settlement Agreement and Waiver of Probable Cause. Not withstanding the foregoing, Respondent shall have the opportunity to provide evidence to the Board to rebut any allegation of non-compliance with the terms of this Final Order and the Board shall provide reasonable notice of its concerns in advance of any meeting to allow the Respondent an opportunity to respond. The Board staff shall notice Respondent of the date, time and place of the Board meeting at which Respondent's appearance is required. Inexcusable failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Final Order in these cases, and shall subject Respondent to further disciplinary action, unless Respondent's appearance is excused in advance by the Board Chairman or the failure to appear is beyond Respondent's control. 12
5. Probation and Practice Restrictions - Respondent's license to practice chiropractic medicine shall be placed on probation for a period of four (4) years from the date of the Final Order. This probation period shall run concurrent with the probation period from Final Order DOH-11-828-F01-MQA, entered April 15, 2011, in Case Numbers 2009-00715 and 2009-00733, which began in January, 2012, with the approval of the Monitor. The purpose of probation is not to prevent Respondent from practicing chiropractic medicine. Rather, probation is a supervised educational experience designed by the Board to make Respondent aware of certain obligations to Respondent's patients and the profession; and to ensure Respondent's continued compliance with the high standards of the profession through interaction with another chiropractic physician with appropriate expertise. At any time after the Respondent has successfully completed the first two (2) years of probation the Respondent, with the advice, consent and support of his Monitor, may petition the Board for the early termination of the Respondent's Probation. A) Restrictions During Probation To the above end, during the period of probation, Respondent shall comply with the following obligations and requirements: 13
i. Supervision - Respondent shall be responsible to provide records to a Board-appointed chiropractic monitoring physician, hereinafter referred to as the "Monitor", whose responsibilities are set by the Board's Compliance Chair. The Respondent shall allow the Monitor access to Respondent's medical records, calendar, patient logs or other documents necessary for the Monitor to supervise Respondent as detailed below. B) Responsibilities of the Monitor - During the first six (6) months of probation, the Monitor shall review a minimum of ten (10) files of Respondent's active patient records, or one hundred percent (100%), whichever is less, of the active files once every other month, beginning thirty (30) days from the Final Order accepting this Settlement Agreement and Waiver of Probable Cause, for the purpose of ascertaining whether proper care and treatment is being provided, whether there are any signs of over-utilization, and to determine if the Respondent is maintaining proper patient and/or billing records. The Monitor shall go to Respondent's office once every other month, shall review Respondent's calendar and patient log, and shall select the records to be reviewed. Provided Respondent successfully completes the first six (6) months of probation, 14
the Monitor shall only be required to review a minimum of five (5) patient files every quarter for the duration of the probation. C) Monitoring Reports - The Monitor shall also submit reports Quarterly, in affidavit form, which shall include: 1) A brief statement of why Respondent is on a Monitoring Agreement; 2) A description of Respondent's practice (type and composition); 3) A statement addressing Respondent's compliance with the terms of the Monitoring Agreement; 4) A brief description of the Monitor's relationship with Respondent; 5) A statement advising the Board of any problems which have arisen; and, 6) A summary of the dates the Monitor went to Respondent's office, the number of records reviewed, and the overall quality of the records reviewed, and the dates Respondent contacted the Monitor as referenced above. More detailed information regarding the content of the monitoring report will be provided to the Monitor by the Board's compliance officer or 15
the Department's compliance unit. The Monitor will be expected to utilize the forms and comply with the guidelines contained in those materials. D) Obligation to Report Violations - The Monitor is required to report immediately to the Board any violations by Respondent of Chapters 456 or 460, Florida Statutes, and the rules promulgated there under. E) Appearances - Respondent's Monitor shall appear before the Board at such times as directed by the Board. It shall be Respondent's responsibility to give adequate notice to the Monitor to appear as requested or directed. If the approved Monitor inexcusably fails to appear as requested or directed by the Board due to lack of notice by the Respondent, Respondent shall immediately cease practicing chiropractic medicine until such time as the approved Monitor, or alternate Monitor, appears before the Board, unless such failure is beyond the control of the Monitor or the Respondent, as determined, in the sole discretion of the Board. F) Other Obligations/Requirements of Monitoring Agreement - During the period of the Monitoring Agreement, Respondent shall comply with the following obligations and requirements: 16
1) During the period of probation Respondent agrees that, upon notification to Respondent to appear at the next Board of Chiropractic Medicine meeting and be heard, upon a finding by the board that Respondent failed to comply with any of the terms of this agreement, the Board may SUSPEND Respondent's license to practice chiropractic medicine until Respondent demonstrates to the Board that Respondent is in compliance with the terms of Monitoring Agreement. Notwithstanding the foregoing, Respondent shall have the opportunity to provide evidence to the Board to rebut any allegation of noncompliance and the Board shall provide reasonable notice of its concerns in advance of any meeting to allow the Respondent an opportunity to respond. 2) Respondent shall appear before the Board of Chiropractic Medicine at the last meeting of the board preceding scheduled termination of the probation, and at such other times as requested by the board. The Board staff shall notice Respondent of the date, time and place of the Board meeting at which Respondent's appearance is required. Inexcusable failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Settlement 17
Agreement and Waiver of Probable Cause, and shall subject Respondent to disciplinary action, unless Respondent's appearance is excused in advance by the Board Chairman or the failure to appear is beyond Respondent's control. 3) In the event that the Board or the Disciplinary Compliance Chairman determines that that the Monitor's reports are unacceptable, the Board shall have the authority to extend Respondent's probationary term indefinitely. This authority is in addition to the Board's authority to suspend Respondent's license, or file new charges, based on noncompliance with this Settlement Agreement and Waiver of Probable Cause. G) Change in Monitor - In the event that Respondent's Monitor is unable or unwilling to fulfill the responsibilities of a Monitor, Respondent shall immediately notify the Board office. Respondent shall obtain another Board-appointed Monitor as expeditiously as possible to fulfill the obligations. Failure to notify the Board office and obtain a new Monitor within fourteen (14) days shall be considered a violation of this Settlement Agreement and Waiver of Probable Cause. H) Continuity of Practice - 18
1) Tolling Provisions - In the event Respondent leaves the State of Florida for a period of thirty (30) days or more or otherwise does not engage in the active practice of chiropractic medicine in the State of Florida, then certain provisions of Respondent's Monitoring Agreement (and only those provisions of the Monitoring Agreement) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida: A) The time period of the Monitoring Agreement shall be tolled; B) The provisions regarding supervision whether direct or indirect by another chiropractic physician and required reports from the Monitor/Supervisor shall be tolled; and, C) The provisions regarding preparation of investigative reports detailing compliance with this Settlement Agreement and Waiver of Probable Cause shall be tolled. 2) Active Practice - In the event that Respondent leaves the active practice of chiropractic medicine for a period of one (1) year or more, the Board may require Respondent to appear before the Board and demonstrate his ability to practice chiropractic medicine with skill and safety 19
to patients prior to resuming the practice of chiropractic medicine in this State. 6. Continuing Education Within one (1) year of the date of the filing of a Final Order in this cause, Respondent shall attend nine (9) hours of Continuing Education administered by a Board-approved continuing education provider. Of these nine (9) hours, six (6) hours must be in CPT coding, compliance and documentation; two (2) hours must be in the laws and rules of the Board and the regulatory agency under which the Board operates which include Chapters 456 and 460, Florida Statutes, and Rule Chapter 64B2, Florida Administrative Code; and one (1) hour must be in risk management. Only courses approved by the Board, and provided by Board-approved providers, can satisfy the Continuing Education requirements of this Settlement Agreement and Waiver of Probable Cause and the Final Order. Respondent shall submit documentation in the form of certified copies of the receipts, vouchers, certificates, or other papers, such as recognition awards, documenting completion of this course within thirteen (13) months of the entry of the Final Order in this matter. All such documentation shall be sent to Department of Health, Division of Medical Quality Assurance, Compliance Management 20
Team, Bin C76, Post Office Box 6320, Tallahassee, Florida, 32314-6320, Attention: Board of Chiropractic Medicine Compliance Officer, regardless of whether some or any of such documentation was previously provided during the course of any audit or discussion with counsel for the Department. These hours shall be in addition to those hours required for renewal of licensure. Unless otherwise approved by the Board, said Continuing Education courses shall also consist of a formal, live lecture format. 7. A endance at Board Meetings - Respondent shall be required to attend six (6) chiropractic Board meetings within six (6) years from the date of the filing of the Final Order in this cause. During such Board meetings, Respondent shall sign in prior to the start of the meeting, and sign out at the conclusion of each Board meeting, on a list provided by the Board Office. Respondent shall sit in the front row for each Board meeting, in an assigned seat, and shall not be permitted to utilize cell phones, computers, books, or any other items that distract Respondent from paying full-attention to the Board meeting proceedings. STANDARD PROVISIONS 21
1. Appearance - Respondent shall be present during the board meeting in which this Settlement Agreement and Waiver of Probable Cause is considered and agrees to answer the Board's questions regarding this matter under oath. 2. No Force or Effect Until Final Order - It is expressly understood that this Settlement Agreement and Waiver of Probable Cause is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs) shall have no force and effect unless the Board enters a Final Order incorporating the terms of this Settlement Agreement and Waiver of Probable Cause. 3. Addresses - Respondent must keep current residence and practice addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. 4. Future Conduct -In the future, Respondent shall not violate Chapter 456 or 460, Florida Statutes, or the rules promulgated pursuant thereto, or any other state or federal law, rule, or regulation relating to the practice or the ability to practice chiropractic medicine. Prior to signing this Settlement Agreement and Waiver of Probable 22
Cause, Respondent shall read Chapters 456 and 460, Florida Statutes, and the Rules of the Board of Chiropractic Medicine at Chapter 64B2, Florida Administrative Code. Online versions of these laws and rules are available at www.doh.state.fl.us/mqa/chiro/chiro statutes.html. 5. Violation of Terms Considered Violation of Final Order - It is expressly understood that a violation of the terms of this Settlement Agreement and Waiver of Probable Cause shall be considered a violation of a Final Order of the Board, for which disciplinary action may be initiated pursuant to Chapters 456 and/or 460, Florida Statutes. 6. Purpose of Settlement Agreement and Waiver of Probable. Cause - Respondent, for the purpose of avoiding further administrative action with respect to this cause, executes this Settlement Agreement and Waiver of Probable Cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with the consideration of the Settlement Agreement and Waiver of Probable Cause. Respondent agrees to support this 23
Settlement Agreement and Waiver of Probable Cause at the time it is presented to the Board and shall offer no evidence, testimony or argument that disputes or contravenes any stipulated fact or conclusion of law. Furthermore, should this Settlement Agreement and Waiver of Probable Cause not be accepted by the Board, it is agreed that presentation and consideration of this Settlement Agreement and Waiver of Probable Cause, and other documents and matters by the Board, shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. 7. No Preclusion of Additional Proceedings - Respondent and the Department fully understand that this Settlement Agreement and Waiver of Probable Cause and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against Respondent for acts or omissions not specifically set forth in the Administrative Complaint attached as Exhibit A. 8. Waiver of Attorney's Fees and Costs - Upon the Board's adoption of this Settlement Agreement and Waiver of Probable Cause, 24
the parties hereby agree that with the exception of costs noted above, the parties will bear their own attorney's fees and costs resulting from prosecution or defense of this matter. Respondent waives the right to seek any attorney's fees or costs from the Department and the Board in connection with this matter. 9. Waiver of Further Procedural Steps - Upon the Board's adoption of this Settlement Agreement and Waiver of Probable Cause, Respondent expressly waives all further procedural steps and expressly waives all rights to seek judicial review of or to otherwise challenge or contest the validity of the Settlement Agreement and Waiver of Probable Cause and the Final Order of the Board incorporating said Settlement Agreement and Waiver of Probabl - Cause. SIGNED this day of IC_Agi&Aaklii i 2012. r OCT -Tr"O P. F = RNANDEZ, D.C. STATE OF Fittr e..._ COUNTY OF Before me on this day of, 2012, personally appeared OCTAVIO P. FERNANDEZ, D.C., who identity is known to me by (type of identification) and who, under oath or affirmat on, acknowledged that his signature appears above. 25 KAREN J. BACKER r Commission # 00 909497 if. Expires July 21, 2013 Bonded Thm Troy Rat Norma 11003854019
APPROVED this f)t Notary Public State Printed Name: Commission No.: Commission Expires: day of 2012. J. BACKER Commission # OD 909497 &Medlin Troy Fain Immo 11003617010 H. Frank Farmer, Jr., M.D., Ph.D., F.A.C.P. State Surgeon General Department of Hea BY: /24) 4.1-) Tad Rossitto-Van Winkle, R.N., J.D. Assistant General Counsel Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 (850) 245-4640 ext 8139 FAX (850) 245-4684 26
DEPARTMENT OF SHEALTH, PETITIONER, STATE OF FLORIDA DEPARTMENT OF HEALTH v. CASE NO. 2010-24153 Octavio P. Fernandez, D.C., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Octavio P. Fernandez, D.C., and in support alleges: 1. Petitioner is the state department charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2. At all times material to this order, Respondent was a licensed to practice chiropractic medicine in the State of Florida, having been issued license number CH 6723 on or about January 28, 1994. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24153 J:\PSU\Allied HealthVennifer\ACTemandez, Octavio P\2010-21453.doc
3. Respondent's address of record is 2645 S.W. 37 th Avenue, Suite #704, Miami, Florida 33133. Respondent's last known address is 1029 Malaga Avenue, Coral Florida 33134. 4. On or about September 15, 2010, the board issued Final Order No. 10-2197-F01-MQA, and a supplemental order filed against Respondent that resolved the disciplinary allegations raised in Case No. 2009-23333. 5. The Final Order, among other things, required Respondent to do the following: 1) pay a fine of $5000 within 90 days of the filing of the Final Order; 2) pay cost of $597.78 within 90 days of the Final Order being filed; 6. Respondent failed to pay the $5000 fine within 90 days of the Final Order being filed. 7. Respondent failed to pay the costs in the amount $597.78 within 90 days of the Final Order being filed. 8. Section 460.413(1)(v), Florida Statutes (2010), subjects a chiropractic physician to discipline for violating a lawful order of the board or department previously entered in disciplinary hearing. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24153 2 JAPSthAllied HealthUennifer\AC\Fernandez, Octavio P\2010-21453.doc
9. Respondent violated the Board's September 15, 2010, Final Order through one or more of the following: a) By failing to pay the $5000 fine within 90 days of the Final Order being filed; or, b) By failing to pay the costs in the amount of $597.78 within 90 days of the Final Order being filed. 10. Based on the foregoing, Respondent has violated 460.413(1)(v), Florida Statutes (2010), by violating a lawful order of the Board previously entered in a disciplinary hearing. WHEREFORE, the Petitioner respectfully requests that the Board of Chiropractic Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24153 JAPSIRAllied Health\Jennifer\AC\Fernandez, Octavio P\2010-21453.doc 3
SIGNED this CM,44- day of 2011. H. Frank Farmer, Jr. M.D. Ph.D State Surgeon General FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK DA MAY 2 7 2011 sek. Tobey Schultz Assistant General ounsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar No. 0542131 (850) 245-4640 x. 8176 (850) 245-4684 FAX PCP: St at4 tt Lne..vstov Rurbtols DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24153 JAPSU\Allied Health\Jennifer\AC\Fernandez, Octavio P\2010-21453.doc
NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24153 5 JAPSU\Allied HealthUennifer\ACTernandez, Octavio P\2010-21453.doc
DEPARTMENT OF HEALTH, PETITIONER, STATE OF FLORIDA DEPARTMENT OF HEALTH v. CASE NO. 2010-24154 Octavio P. Fernandez, D.C., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Octavio P. Fernandez, D.C., and in support alleges: 1. Petitioner is the state department charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2. At all times material to this order, Respondent was a licensed to practice chiropractic medicine in the State of Florida, having been issued license number CH 6723 on or about January 28, 1994. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24154
3. Respondent's address of record is 2645 S.W. 37 th Avenue, Suite #704, Miami, Florida 33133. 4. On or about September 15, 2010, the board issued Final Order No. 10-2199-FOI-MQA, against Respondent that resolved the disciplinary allegations raised in Case No. 2009-20698. 5. The Final Order, among other things, required Respondent to do the following: 1) pay a fine of $5000 within 90 days of the filing of the Final Order; and, 2) pay cost of $1,758.04 within 90 days of the Final Order being filed. 6. Respondent failed to pay the $5000 fine within 90 days of the Final Order being filed. 7. Respondent failed to pay the costs in the amount $1,758.04 within 90 days of the Final Order being filed. 8. Section 460.413(1)(v), Florida Statutes (2010), subjects a chiropractic physician to discipline for violating a lawful order of the board or department previously entered in disciplinary hearing. 9. Respondent violated the Board's September 15, 2010, Final Order through one or more of the following: DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24154 2
a) By failing to pay the $5000 fine within 90 days of the Final Order being filed; or, b) By failing to pay the costs in the amount of $1,758.04 within 90 days of the Final Order being filed. 10. Based on the foregoing, Respondent has violated 460.413(1)(v), Florida Statutes (2010), by violating a lawful order of the Board previously entered in a disciplinary hearing. WHEREFORE, the Petitioner respectfully requests that the Board of Chiropractic Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this D6 44' day of ikit, 2011. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24154 3
H. Frank Farmer, Jr. M.D. Ph.D State Surgeon General FILED DEPARTMENT DF HEALTH DEPUTY CLERK clerkamiii6a2b nakbe. DATE; MAY 2 7 2011 Tobey Sc ltz Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar No. 0542131 (850) 245-4640 x. 8176 (850) 245-4684 FAX PCP: S I at/ La.,,b40('-ge.if1/401e1N DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24154
NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-24154 5
DEPARTMENT OF HEALTH, PETITIONER, STATE OF FLORIDA DEPARTMENT OF HEALTH v. CASE NO. 2010-18950 OCTAVIO P. FERNANDEZ, D.C. RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through its undersigned counsel, files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Octavio P. Fernandez, D.C., and in support alleges: 1. Petitioner is the state department charged with regulating the practice of Chiropractic Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2. At all times material to this order, Respondent was licensed to practice chiropractic medicine in the State of Florida, having been issued license number CH 6723 on or about January 28, 1994. 3. Respondent's address of record is 2645 S.W. 37th Avenue, Suite #704, Miami, Florida 33133. Respondent's last known address is 1029 Malaga Avenue, Coral Gables, Florida 33134. 4. On or about September 15, 2009, the Board issued Final Order No. DOH- 09-1902-S-MQA, against Respondent that resolved the disciplinary allegations raised in Case No. 2008-24266. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-18950 \PStAhledicalVrobey\ChirolACFemandez, Octavio 2010-18950.ac.vfo.doc
5. The Final Order, among other things, required Respondent to do the following: 1) write an article of publishable quality of no less than 500 words and submit the article to the disciplinary chairperson for approval within 30 days of the filing of the Final Order, 2) pay a fine of $2000 within one year of the filing of the Final Order; 3) pay costs of $1,895.94 within one year of the Final Order being filed; and, 4) provide proof of attending 8 hours of continuing education, 2 of which must be in laws and rules, 6 of which must be in record keeping, documentation, and coding, within one year of the Final Order being filed. 6. Respondent contacted the Compliance Department after the Final Order was issued to request a 2 week extension to complete the article which was granted. 7. Respondent failed to submit an article to the disciplinary chairperson for approval within 44 days of the filing of the Final Order. 8. Respondent failed to pay the $2000 fine within one year of the Anal Order being filed. 9. Respondent failed to pay the costs in the amount of $1,895.94 within one year of the Anal Order being filed. 10. Respondent failed to provide proof of completing the 8 hours of required continuing education within one year of the Final Order being filed. 11. Section 460.413(1Xv), Florida Statutes (2009X2010), subjects chiropractic physician to discipline for violating a lawful order of the board or department previously entered in a disciplinary hearing. 12. Respondent violated the Board's September 15, 2009, Final Order through one or more of the following: DOH v. Octavio P. Fernandez, D.C. Case No. 2010-18950 3APSIAtiedicahTobeAChiroNACVemandez, Octavio 2010-18950.ac.vfo.doc 2
a) By falling to submit an article to the disciplinary chairperson for approval within 44 days of the filing of the Anal Order. b) By failing to pay the $2000 fine within one year of the Final Order being filed; c) By falling to pay the costs in the amount of $1,895.94 within one year of the Final Order being filed; or, d) By failing to provide proof of completing the 8 hours of required continuing education within one year of the Final Order being filed. 13. Based on the foregoing, Respondent has violation 460.413(1)(v), Florida Statutes (2009)-(2010), by violating a lawful order of the Board previously entered in a disciplinary hearing. WHEREFORE, the Petitioner respectfully requests that the Board of Chiropractic Medidne enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. DOH v. Wad P. Fernandez, D.C. Case No. 2010-18950 3: VSLIVAelcaRTobeAChin:AACVemandez, Octavio 2010-18950.ac.vfo.doc 3
SIGNED this_ day of 2011. CLEM FILED DEPARTIENT OF FEAL'TH DEPUTY CLERK gaadurti., 3 Q 2011 State Surgeon General Tobey Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 DAM Tallahassee, FL 32399 Florida Bar # 0542131 (850) 245-4640 ext. 8176 (850) 245-4682 FAX PCP: tar.y_sgfvtad Qhgdtftja 3(aq( i t 1,441 DOH v. Octavio P. Fernandez, D.C. Case No. 2010-18950 JAPSLAMedicalkTbeChiroVIC\Femandez, Octavio 2010-18951ac.vfo.doc 4
NOT/CE OF RIGHTS Respondent has the right to request a hearing to be conducted In accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum Issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the Investigation and prosecution of a disciplinary matter, which may indude attorney hours and costs, on the Respondent In addition to any other discipline imposed. DOH v. Octavio P. Fernandez, D.C. Case No. 2010-18950 3:7311\Medical\Tobey\Chiro\ACfemandez, Octavio 2010-18950.ac.vfo.doc