Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ETHAN TADD LEVY, P.A., Appellant, v. DEPARTMENT OF HEALTH, Appellee. Nos. 2D21-2273, 2D21-3815 CONSOLIDATED August 23, 2023 Appeal from the Florida Department of Health, Board of Medicine. Richard M. Hanchett and Lindsay Patrick Lopez of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A., Tampa, for Appellant. Ashley Moody, Attorney General, and Marlene K. Stern, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee. SLEET, Chief Judge. In these consolidated appeals, Ethan Levy challenges two orders from the Florida Department of Health, Board of Medicine (the Florida Board), which denied his two petitions to remove or modify restrictions placed on his physician assistant license. Levy argues that the orders should be reversed because (1) the Florida Board applied the wrong legal standard and (2) the evidence demonstrated a change in circumstances requiring a modification. Because the Florida Board did not abuse its discretion in denying the petitions, we affirm. I. BACKGROUND Levy was issued a Texas physician assistant license in December 2009. While working at a pain management clinic in Texas, he nontherapeutically prescribed controlled substances to eleven patients without appropriate evaluations and was charged with a felony for doing so. In February 2012, he pled guilty to a reduced misdemeanor charge in exchange for his cooperation with authorities in the prosecution of his supervising physician. Thereafter, in July 2013, the Texas Physician Assistant Board (the Texas Board) entered an agreed order (Texas Order) against Levy imposing certain restrictions and requirements, such as prohibiting him from treating chronic pain patients, restricting his ability to reapply to the Drug Enforcement Administration (DEA) for only Schedule IV and V controlled substance registration, requiring him to be monitored by a physician, and requiring that he complete continuing medical education courses. The Texas Order also included a provision expressly allowing for the future modification or termination of the conditions after one year should Levy seek to do so. Levy later moved to Florida, where he also was licensed to practice as a physician assistant. On August 1, 2013, the Florida Board received a disciplinary alert report alleging that restrictions had been placed on Levy's Texas physician assistant license. The Florida Department of Health investigated and, in November 2013, filed an administrative complaint against Levy for violating section 456.072(1)(f), Florida 2 Statutes (2013), which allows for disciplinary action against an individual whose license to practice is "acted against . . . by the licensing authority of any jurisdiction . . . for a violation that would constitute a violation under Florida law." Levy thereafter entered into a settlement agreement stipulating to the violation, and the Florida Board entered a final order (Florida Order) which incorporated restrictions and requirements on his Florida license, including permanently restricting him from owning, operating, or working in a pain management clinic and placing his license on probation for one year. Unlike the Texas Order, the Florida Order did not include a provision expressly allowing for future modification or termination. In 2020, Levy petitioned the Texas Board to terminate the Texas Order. The Texas Board denied the request but instead entered a modification order, which eliminated the prohibition from treating chronic pain patients and allowed Levy to reapply to the DEA for Schedules III, IV, and V controlled substance privileges. In May 2020, the Texas Board terminated the order due to Levy's completion of its compliance program. In April 2021, Levy petitioned the Florida Board to terminate the Florida Order or, in the alternative, to modify it to lift his permanent restriction. He argued that termination or modification of the Florida Order was warranted because Texas terminated its original order, which was the basis of the Florida disciplinary action. In June 2021, the Florida Board held a meeting on Levy's petition. But it denied any modification to the Florida Order, reasoning that the permanent restriction placed upon his Florida license was based on a settlement agreement between Levy and the Florida Board and that modifying the settlement agreement absent a change in circumstances would set a bad 3 precedent moving forward. The Florida Board subsequently entered its order denying the petition on June 25, 2021 (June Order). Four days later, Levy filed a renewed petition, asking the Florida Board to reconsider the denial of the previous request to lift the permanent restriction on his license. In October 2021, the Florida Board held a meeting to consider the renewed petition. During the meeting, Levy argued that there were three changes in circumstances that warranted the modification of the Florida Order: (1) the modification and termination of the Texas Order, (2) the increasing refusal by insurers to credential providers that have any restrictions on their license, and (3) an increased need for healthcare providers due to the effects of COVID. The Florida Board concluded that Levy did not show a material change in circumstances and that the Florida Order was an agreed upon order with no option for future modification. It denied the renewed petition and entered the order on November 10, 2021 (November Order). In these consolidated appeals, Levy challenges both the June Order and the November Order, arguing that the orders should be reversed because (1) the Florida Board applied the wrong legal standard and (2) the evidence demonstrated a change in circumstances requiring a modification. II. ANALYSIS Section 120.68(1), Florida Statutes (2023), authorizes judicial review of final administrative orders. The standard of review that applies in a given case depends on the nature of the issue adjudicated. A decision that rests on a finding of fact must be affirmed on appeal if the finding is supported by competent substantial evidence. See § 120.68(7)(b), Fla. Stat. (1999); De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957). Likewise, a discretionary decision must be affirmed on appeal if the agency has not exceeded the 4 scope of its discretionary authority. See § 120.68(7)(e), Fla. Stat. (1999). In contrast to these restrictive standards, the appellate courts are free to disagree with an agency on a point of law. Section 120.68(7)(d) provides in material part that the court may "set aside agency action" when it finds that the agency has "erroneously interpreted a provision of law." See Metropolitan Dade County v. Department of Envtl. Protection, 714 So. 2d 512 (Fla. 3d DCA 1998); Schrimsher v. School Bd. of Palm Beach County, 694 So. 2d 856 (Fla. 4th DCA 1997). Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594, 597 (Fla. 1st DCA 2000). "The [Board of Nursing's] imposition of a penalty is reviewed under an abuse of discretion standard." Galvan v. Dep't of Health, 285 So. 3d 975, 979 (Fla. 3d DCA 2019). And "[t]he appellate function, on review of penalties imposed by an administrative agency, is to determine whether there are valid reasons in the record in support of the agency's order." Grimberg v. Dep't of Pro. Regul., Bd. of Med., 542 So. 2d 457, 457-58 (Fla. 3d DCA 1989). "Further, the determination of whether a significant change in circumstances has occurred lies primarily within the discretion of the administrative agency." Delray Med. Ctr., Inc. v. State, Agency for Health Care Admin., 5 So. 3d 26, 29 (Fla. 4th DCA 2009). Levy argues that the Florida Board denied his petitions based on a blanket policy position that final orders should never be modified and that, therefore, it applied the wrong legal standard. We disagree. Administrative agencies have an inherent power to reconsider final orders still under their control, such as those which involve conditions implying continuing oversight and jurisdiction by the Florida Board. See Mann v. Dep't of Pro. Regul. Bd. of Dentistry, 585 So. 2d 1059, 1060-61 & n.4 (Fla. 1st DCA 1991) (citing Peoples Gas Sys. v. Mason, 187 So. 2d 335, 339 (Fla. 1966)). And they "may alter a final decision under extraordinary circumstances." Richter v. Fla. Power Corp., 366 So. 2d 5 798, 800 (Fla. 2d DCA 1979) (first citing Davis v. Combination Awning & Shutter Co., 62 So. 2d 742, 745 (Fla. 1953); and then citing 1 Fla. Jur. 2d Administrative Law s 89 (1977)). Levy cites Mann, 585 So. 2d 1059, in support of his argument. In Mann, Dr. Mann appealed an order by the Board of Dentistry denying his motion for modification of a suspension from the practice of dentistry. The First District vacated the order and remanded the case because the order was ambiguous as to whether "the board [was] totally devoid of jurisdiction to modify previously rendered disciplinary orders" or whether "the board [had] jurisdiction to consider petitions for modification of disciplinary action, but that the petition in [that case] fail[ed] to allege facts which would establish grounds for modification under the authority cited in the order." Id. at 1060. Here, however, the Florida Board considered the petition and its merits. Unlike the board in Mann, the Florida Board did not make findings that it was totally devoid of jurisdiction to modify the order. A review of the record indicates that, contrary to Levy's contention, the Florida Board specifically inquired about the unique change of circumstances and considered all of the evidence presented. During the October 8, 2021, hearing, a Florida Board member stated: "I don't think it is a material change of circumstances, right? He's working today. He's employed today. Hasn't shown a material change in circumstances which I think is necessary and, therefore, would move to deny the petition." The motion was seconded, and the Florida Board denied the renewed petition. Levy also argues that the Florida Board abused its discretion in denying the petition because the record demonstrates that there were two substantial changes in circumstances: (1) the modification of the 6 Texas order and (2) the increasing refusal by insurers to credential healthcare providers with any form of restriction on their license. We disagree. With regard to the modification of the Texas Order, Levy maintains that the Florida Administrative Code provides that suspension of a Florida license must only remain in place until the license is unencumbered in the jurisdiction where the disciplinary action was originally taken and that because his Texas license became unencumbered, so too must his Florida license. The Department of Health filed an administrative complaint against Levy for violating section 456.072(1)(f), which subjects a physician assistant to discipline, including license restriction, for having his or her license acted against by another state for a violation that would also be a violation under Florida law. Rule 64B8-30.015(2)(b) of the Florida Administrative Code sets forth the range of appropriate penalties for violating section 456.072(1)(f). Recommended penalties for a first offense range "[f]rom imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken." However, the plain language of the rule indicates that cases resolved by settlement agreements are not bound by the disciplinary guidelines set forth in rule 64B8-30.015(2). The rule specifically states that "[i]n imposing discipline upon physician assistant applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below." Fla. Admin. Code R. 64B8-30.015(2) 7 (emphasis added). Subsections (1) and (2) of section 120.57 pertain to administrative hearings. And the administrative complaint against Levy did not go through an administrative hearing pursuant to either subsection. Rather, it was settled pursuant to subsection (4) of the statute. Accordingly, the Florida Board was not bound by the guidelines in determining whether to modify or terminate the restriction. We further conclude that there are valid reasons in the record to support the Florida Board's denial of the petition. See Grimberg, 542 So. 2d at 457-58. The settlement agreement was entered into between Levy and the Department of Health. When the parties came before the Florida Board for its approval and incorporation of the settlement agreement into the Florida Order, Levy received the benefit of the bargain by the Florida Board removing some of the other discipline from the settlement agreement. Nonetheless, he voluntarily agreed to the permanent restriction prohibiting him from owning, operating, or working at a pain management clinic. And neither the settlement agreement nor the Florida Order makes any reference to lifting the agreed upon permanent restriction based upon the status of the Texas Order. The Florida Board considered the details of Levy's situation, asked about a change of circumstances, and ultimately decided to deny the petition for the protection of the public. Levy next argues that the increasing refusal of health insurers to credential healthcare providers with any form of restriction on their license is a substantial change in circumstances because it converts what was intended to be a limited restriction on Levy's license to an effective suspension or revocation of the license. Specifically, he points to Tricare's termination of Levy as an authorized provider based on the restrictions on his license. However, Levy's claim that such employment 8 practices are new is doubtful because he was barred by Tricare in 2014 within a month of issuance of the Florida Order approving the settlement agreement. Accordingly, Tricare's insurance practices eight years later do not amount to a change in circumstances. This court cannot second guess the decision of qualified, competent professional healthcare providers regarding factual issues as to whether another healthcare provider who is subject to an agreed-upon restriction that allowed him to continue practicing in his field should be allowed to practice without restrictions when the record contains competent substantial evidence to support the findings. See Grimberg, 542 So. 2d at 458 ("Reviewing courts cannot substitute their judgment for that of medical boards which have great expertise and broad statutory discretion." (citing Dep't of Pro. Regul. v. Bernal, 531 So. 2d 967, 968 (Fla. 1988))). As such, the Florida Board did not abuse its discretion in denying Levy's petitions for modification of the Florida Order. Affirmed. VILLANTI and BLACK, JJ., Concur. Opinion subject to revision prior to official publication. 9