STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF CLINICAL SOCIAL WORK, MARRIAGE AND FAMILY THERAPY, AND MENTAL HEALTH COUNSELING, | ) ) ) ) | |
Petitioner, vs. | ) ) ) ) Case | Nos. 00-1115 |
DEBORAH A. HULBERT, Respondent. | ) ) ) ) | 01-3777PL 01-3778PL 01-3780PL |
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on January 9, 2002, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Deborah B. Loucks, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Post Office Box 14229 Tallahassee, Florida 32317-4229
For Respondent: No appearance.
STATEMENT OF THE ISSUE
Whether Respondent violated Sections 491 and 455, Part II, Florida Statutes (1999) (currently Section 456, Florida
Statutes), and the rules promulgated pursuant thereto; and if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On September 23, 1999, the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (hereinafter referred to as "the Board"), filed an Administrative Complaint against Respondent, Deborah A. Hulbert, alleging that she violated Section 491.009(2)(q), Florida Statutes, through a violation of Section 455.624(1)(o), Florida Statutes (1999) (currently Section 456.072(1)(o), Florida Statutes), by practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform; and that she violated Section 491.009(2)(s), Florida Statutes, by failing to meet minimum standards of performance in professional activities.
The case was forwarded to the Division of Administrative Hearings ("DOAH") on March 10, 2000, assigned DOAH Case No. 00- 1115, and set for hearing on August 8, 2000. On September 13, 2000, counsel for the Board filed a notice of proposed settlement and request that the case be placed in abeyance. By order dated September 18, 2000, the Administrative Law Judge
closed the file in DOAH Case No. 00-1115, with leave for either party to reopen the case should the settlement not become final.
On September 25, 2001, the Board forwarded to DOAH four additional cases against Respondent, with a request that the file in DOAH Case No. 00-1115 be reopened and that all five cases be consolidated for a single hearing. By order dated October 19, 2001, the file in DOAH Case No. 00-1115 was reopened. By order dated October 25, 2001, the five pending cases against Respondent were consolidated for hearing. The consolidated cases were set for hearing on January 9, 2002.
As to DOAH Case No. 01-3777PL, the Board filed on
October 9, 2000, an Administrative Complaint against Respondent alleging that she violated Section 491.009(2)(q), Florida Statutes, through a violation of Section 455.667(4), Florida Statutes (1999) (currently Section 456.057(4), Florida Statutes), by failing to furnish in a timely manner copies of all reports and records relevant to the treatment of a patient upon written request of the patient or the patient's legal representative; and Section 491.009(2)(q), Florida Statutes, through a violation of Rule 64B4-9.001(3), Florida Administrative Code, by failing to publish notice stating the date of termination or relocation of the licensee's practice and an address at which patient records are available in a newspaper
of greatest circulation in the county in which the licensee practiced.
As to DOAH Case No. 01-3778PL, the Board filed on April 20, 2000, an Administrative Complaint against Respondent alleging that she violated Section 491.009(2)(s), Florida Statutes, by failing to meet minimum standards of performance in professional activities; Section 491.009(2)(q), Florida Statutes, through a violation of Section 455.717(1), Florida Statutes (1999) (currently Section 456.035(1), Florida Statutes), by failing to notify the Board of the licensee's current mailing address; Section 491.009(2)(l), Florida Statutes, by making misleading, deceptive, untrue or fraudulent representations in the practice; and Section 491.009(2)(q), Florida Statutes, through a violation of Section 455.667(4), Florida Statutes (1999) (currently Section 456.057(4), Florida Statutes), by failing to furnish in a timely manner copies of all reports and records relevant to the treatment of a patient upon written request of the patient or the patient's legal representative.
As to DOAH Case No. 01-3779PL, the Board filed on April 20, 2000, an Administrative Complaint against Respondent alleging that she violated Section 491.009(2)(s), Florida Statutes, by failing to meet minimum standards of performance in professional activities; Section 491.009(2)(o), Florida Statutes, by failing to respond within 30 days to a written communication from the
Board concerning any investigation by the Board; Section 491.009(2)(q), Florida Statutes through a violation of Section 455.624(1)(m), Florida Statutes (1999) (currently Section 456.072(1)(m), Florida Statutes), by making misleading, deceptive, untrue or fraudulent representations in the practice; and Section 491.009(2)(q), Florida Statutes, through a violation of Section 455.624(1)(n), Florida Statutes (1999) (currently Section 456.072(1)(n), Florida Statutes), by exercising influence on a patient or client for the purpose of financial gain of the licensee.
As to DOAH Case No. 01-3780PL, the Board filed on June 21, 2001, an Administrative Complaint against Respondent alleging that she violated Section 491.009(2)(c), Florida Statutes, by being convicted or found guilty of a crime in any jurisdiction which directly relates to the practice of her profession.
At the hearing, Petitioner presented the testimony of S.S. and C.L., former patients of Respondent; Susan Johnston, the agency investigator in these cases; and Sherry Mills, an expert in clinical social work. Petitioner also offered the deposition testimony of A.M., which was accepted into evidence.
Petitioner's Exhibits 1-6 and 8-13 were admitted into evidence.
Respondent made no appearance at the hearing. On
January 10, 2002, the undersigned issued an Order to Show Cause, informing Respondent that the hearing had taken place as
scheduled and giving Respondent ten days to show cause why a recommended order should not be entered based on the record established at the hearing. Respondent filed no response to the Order to Show Cause.
A Transcript of the hearing was filed at the Division of Administrative Hearings on February 4, 2002. Petitioner filed a Proposed Recommended Order on February 13, 2002.
FINDINGS OF FACT
Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:
At all times material, Respondent held license number LSW 4434 to practice clinical social work in the State of Florida.
Petitioner is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Section 491.009(2), Florida Statutes.
From November 1996 until late 1997, Respondent had a joint practice with Gerardo Olivera, M.D., at 501 East Olympia Avenue in Port Charlotte, Florida. On January 3, 1998, Respondent relocated her practice, Creative Care Enlightened Path to Healing ("Creative Care"), to 22091 Elmira Boulevard, Port Charlotte, Florida.
Respondent provided therapeutic services to patient C.L., who sought counseling to help deal with her father's death.
C.L. knew Respondent as Dr. Deborah Olivera, and believed Respondent was a physician. Respondent never clarified with C.L. that she held only a clinical social work license.
Respondent prescribed the medications Pamelor, Klonopin and Soma to C.L. Pamelor is a trade name for nortriptyline, an antidepressant. Klonopin is a trade name for clonazepam, an anticonvulsant generally used to prevent epileptic seizures. Soma is a trade name for carisoprodol, a muscle relaxant.
Respondent would telephone the prescriptions in for C.L., who would then pick them up from the pharmacist.
Social workers are not allowed to prescribe medications. Prescribing medication is outside the scope of practice for a clinical social worker. A social worker can discuss medications with a patient but is not permitted to recommend that the patient change medication. Social workers are not allowed to write out prescriptions.
On at least one occasion, Respondent did not show up for an appointment with C.L.
Respondent moved her office location without telling C.L., who felt "abandoned" by her therapist.
Respondent did not take notes during her counseling sessions with C.L., and spent large portions of the sessions talking about herself and her own problems. Respondent would also embark on "odd" conversational tangents during the sessions, such as complaining that the weather system called "El Nino" was misnamed because "El Nino" means "little boy," and a little boy would not do the things that "El Nino" did.
C.L. believed that Respondent did nothing to help her with her emotional problems.
Respondent provided counseling services to S.S. from June 1997 until November 1998.
In January 1998, S.S. began working for Respondent at Creative Care. S.S. worked at Creative Care until
November 1998, when the clinic was closed by Medicaid fraud investigators.
S.S. was employed as the office manager, under Respondent's direct supervision. Her job duties included scheduling patients, billing, running business errands, and running personal errands for Respondent.
S.S.'s children received counseling from Respondent from June 1997 until October 1998.
While working for Respondent, S.S. opened an American Express account. S.S. was the primary cardholder. At Respondent's direction, S.S. charged business expenses for
Creative Care to her American Express card. S.S. obtained a second card under this account in the name of Deborah Vasta, a name used by Respondent. As the primary cardholder, S.S. was responsible for paying charges made on the card issued in the name of Deborah Vasta.
Respondent gave S.S. the authority to enter into contracts on behalf of Creative Care.
S.S. signed as the personal guarantor of a contract between Sanwa Leasing Corporation and Creative Care for the lease of computer equipment. S.S. agreed to sign as guarantor because Respondent was unable to obtain credit in her own name due to past financial difficulties.
In February or March 1998, S.S. became the corporate treasurer of Creative Care and held that position until February 1999, when S.S. asked to be removed.
S.S. did not have access to corporate funds. When Respondent was away on vacation, S.S. bought furniture for the office and for Respondent's home, and paid office expenses, using her own bank account or credit cards. Respondent did not reimburse S.S. for these purchases.
Respondent used S.S.'s car as her own. Respondent was involved in a traffic accident while driving S.S.'s car and did not reimburse S.S. for the cost of repair.
A "dual relationship" occurs when a therapist has a relationship with a patient outside of the therapeutic relationship. Dual relationships are not prohibited, but are viewed with special concern within the social work profession because of the inherent inequality in the therapist-patient relationship. The dual relationship does not absolve the therapist of her duty of care to her patient.
The Board's expert, Sherry Mills, testified that it is always inappropriate for a therapist to hire a patient while the therapist is still treating the patient. Thus, Respondent's employment of S.S. was an inappropriate dual relationship and a violation of the minimum standards of Respondent's profession.
Respondent's borrowing money from S.S. and allowing
S.S. to make purchases on behalf of Respondent's business were absolutely inappropriate.
Respondent prescribed medication for S.S.'s children by writing the prescriptions on blank forms that had been signed by medical doctors. Respondent did not consult with the doctors prior to prescribing the medication for S.S.'s children. Respondent also prescribed medication for S.S. without consulting a physician.
Respondent submitted fraudulent Medicaid billings for services allegedly rendered to S.S.'s children.
Beginning in October 1997, Respondent provided counseling services to K.M.
K.M. was a child whose parents were divorced. K.M. lived in Florida with her mother. K.M.'s father, whose insurance paid for Respondent's treatment, lived in Vermont.
In a letter dated October 22, 1997, K.M.'s father, A.M., wrote Respondent requesting copies of counseling records for his child. Included with this letter was a court order providing A.M. with access to K.M.'s records. A.M. received no response to this request for records.
On January 6, 1998, A.M. sent a memorandum to Respondent requesting copies of the treatment records for K.M. The memorandum also stated that A.M. was "appalled" by a sworn affidavit that Respondent had submitted to the Vermont court on December 9, 1997.
In the affidavit, Respondent stated that K.M. had no desire to visit her father in Vermont because K.M. was in fear that she would not be safe and that A.M. was unwilling and unable to protect K.M. from sexual abuse perpetrated by his step-daughter. A.M. testified that the statements in the affidavit were untrue and slanderous.
Respondent made no effort to contact A.M. despite his willingness for her to do so. A.M. made at least 25 separate
attempts to contact Respondent, but was never able to speak with her or obtain any correspondence with her.
In December 1998, A.M. sent another letter to Respondent requesting copies of K.M.'s records. The letter was sent via certified mail delivery to Respondent and was returned to A.M. as "Refused."
A.M.'s Florida attorney made several attempts to contact Respondent, as did A.M.'s insurance company. Respondent did not reply to the attorney or the insurance company.
By letter dated March 5, 1999, the Agency for Health Care Administration ("AHCA") advised Respondent that there was a pending investigation regarding her license to practice. The letter was sent to Respondent's address on record with the Board and was returned by the post office with a label stating "Moved, Left No Address, Unable to Forward, Return to Sender."
The AHCA investigator obtained a South Carolina address for Respondent from a Medicaid fraud investigator and in June 1999, re-sent the notification letter to Respondent. Respondent never contacted the investigator regarding the investigation.
The Board office records indicate that Respondent has listed three addresses with the Board. The original address on file was 1320 N.W. 3rd Terrace in Cape Coral. On February 6,
2001, Respondent notified the Board that her address of record should be changed to 2234 Stella Street in Fort Myers. On March 28, 2001, Respondent notified the Board office that her address of record is 101-A Fairview Avenue, also in Ft. Myers.
On December 7, 2000, in Charlotte County circuit court, Respondent entered a plea of guilty to one count of racketeering, a first degree felony; one count of conspiracy to racketeer, a first degree felony; one count of Medicaid provider fraud, violation of Section 409.920(2)(a), Florida Statutes, a third degree felony; and one count of grand theft, a second degree felony.
The plea agreement provided that Respondent would be sentenced to seven years in the Department of Corrections with
65 months suspended. Respondent received credit for 19 months served. Respondent was placed on 15 years' probation subject to the following terms: payment of costs of prosecution; payment of circuit court costs; payment of costs of investigation to the Medicaid Fraud Control Unit; and payment of restitution to various individuals and agencies.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.
Petitioner has the burden of proving by clear and convincing evidence that Respondent has violated the above statute. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987). Petitioner has met that burden.
Section 455.624(1), Florida Statutes (1997), stated in relevant part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
Making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession.
Exercising influence on the patient or client for the purpose of financial gain of the licensee or a third party.
Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform.
The same provisions may currently be found at Section 456.072(1), Florida Statutes (2001).
Section 491.009(2), Florida Statutes (1997), stated in relevant part:
(2) The following acts of a licensee, provisional licensee, registered intern, certificateholder, or applicant are grounds
for which the disciplinary actions listed in subsection (1) may be taken:
* * *
(c) Being convicted or found guilty of, regardless of adjudication, or having entered a plea of nolo contendere to, a crime in any jurisdiction which directly relates to the practice of his or her profession or the ability to practice his or her profession. However, in the case of a plea of nolo contendere, the board shall allow the person who is the subject of the disciplinary proceeding to present evidence in mitigation relevant to the underlying charges and circumstances surrounding the plea.
* * *
(l) Making misleading, deceptive, untrue, or fraudulent representations in the practice of any profession licensed, registered, or certified under this chapter.
* * *
(o) Failing to respond within 30 days to a written communication from the department or board concerning any investigation by the department or the board, or failing to make available any relevant records with respect to any investigation about the licensee's, registered intern's, or certificateholder's conduct or background.
* * *
(q) Violating any provisions of this chapter, or of chapter 455, or any rules adopted pursuant thereto.
* * *
(s) Failing to meet the minimum standards of performance in professional activities
when measured against the generally prevailing peer performance, including the undertaking of activities for which the licensee, registered intern, or certificateholder is not qualified by training or experience.
Section 455.667(4), Florida Statutes (1998), stated:
Any health care practitioner licensed by the department or a board within the department who makes a physical or mental examination of, or administers treatment or dispenses legend drugs to, any person shall, upon request of such person or the person's legal representative, furnish, in a timely manner, without delays for legal review, copies of all reports and records relating to such examination or treatment, including X rays and insurance information. However, when a patient's psychiatric, chapter 490 psychological, or chapter 491 psychotherapeutic records are requested by the patient or the patient's legal representative, the health care practitioner may provide a report of examination and treatment in lieu of copies of records.
Upon a patient's written request, complete copies of the patient's psychiatric records shall be provided directly to a subsequent treating psychiatrist. The furnishing of such report or copies shall not be conditioned upon payment of a fee for services rendered.
The same provision may currently be found at Section 456.057(4), Florida Statutes (2001).
Rule 64B4-9.001(5), Florida Administrative Code (1998), stated:
When a clinical social worker, marriage and family therapist, or mental health counselor terminates practice or relocates and is no longer available to clients or
users, the clients or users shall be notified of such termination or relocation and unavailability by the licensee's causing to be published in the newspaper of greatest general circulation in the county in which the licensee practices or practiced, a notice which shall contain the date of termination or relocation and an address at which the licensee's client or user records are available to the client, user, or to a licensed mental health professional designated by the client or user. The records shall be retained for 2 years after the termination or relocation of the practice.
The undisputed testimony and evidence demonstrated that Respondent failed to meet minimum standards of performance in professional activities. The testimony of C.L. and S.S., two former patients, indicated that Respondent did not provide professional services in a manner that conforms to the requisite standard of care. Also, Respondent entered into an inappropriate dual relationship with S.S. by employing her as her office manager and making her a corporate officer of Respondent's business. The undisputed testimony of A.M. indicated that Respondent made clinical assessments and statements about A.M. without ever speaking to him.
The undisputed testimony and evidence demonstrated that Respondent acted outside the scope of her license as a clinical social worker. Both former patients testified that Respondent prescribed prescription medication for them. Licensed clinical social workers are not permitted to prescribe
medication. Only medical doctors are permitted to prescribe medication.
The undisputed testimony and evidence demonstrated that Respondent failed to provide copies of patient records or a report of treatment upon a proper written request. A.M. testified that he sent numerous requests to Respondent seeking a copy of his child's records. With his requests, A.M. included copies of current Vermont court orders addressing his right of access to these records. Respondent failed to provide copies of these documents. In fact, Respondent failed to respond at all.
The undisputed testimony and evidence demonstrated that Respondent relocated her office without advising her clients. C.L., who was a current patient, went to the office for her appointment only to find that Respondent was gone. This type of patient abandonment falls below the standard of care for the profession of clinical social work.
The undisputed testimony and evidence demonstrated that Respondent made misleading, false, untrue or fraudulent representations in her social work practice. In addition to her plea of guilty to Medicaid fraud, Respondent failed to correct C.L.'s mistaken belief that Respondent was a medical doctor. Respondent telephoned in prescription requests and wrote out prescriptions on pre-signed scripts without the consent of or
consulting with the physicians whose names were signed on the scripts.
The undisputed testimony and evidence demonstrated that Respondent exercised influence on a patient for the financial gain of Respondent. S.S. obtained credit and made purchases on behalf of Respondent's business. S.S. was not reimbursed for these expenditures. S.S. used her own credit to purchase furniture for Respondent's residence. Respondent took S.S.'s car for her own personal use. Respondent was involved in an accident and allowed S.S. to pay for the repairs to the car.
The undisputed testimony and evidence demonstrated that between 1996 and 2001, Respondent did not advise the Board of any change of address. Through its own investigation, AHCA discovered that Respondent had moved to South Carolina during this period.
The undisputed testimony and evidence demonstrated that Respondent failed to respond to a communication from AHCA relevant to a pending investigation.
The undisputed evidence demonstrated that Respondent pled of guilty to Medicaid fraud, racketeering, conspiracy to racketeer, and grand theft. The submission of fraudulent claims to Medicaid for the sole purpose of financial gain of Respondent violated the basic and fundamental purpose of a helping and healing profession.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a final order finding that Deborah A. Hulbert is guilty of all counts of all five Administrative Complaints, assessing a fine of $10,000 and revoking her license in accordance with Section 456.072(2)(d), Florida Statutes; Rule 64B4-5.001, Florida Administrative Code; and the Board's penalty guidelines. It is, further, RECOMMENDED that Deborah A. Hulbert be required to pay all costs related to the investigation and prosecution of these cases as required by Section 456.072(4), Florida Statutes.
DONE AND ENTERED this 26th day of February, 2002, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2002.
COPIES FURNISHED:
Deborah Ann Hulbert
101 A Fairview Avenue Fort Myers, Florida 33905
Deborah B. Loucks, Esquire
Agency for Health Care Administration 2727 Mahan Drive
Post Office Box 14229 Tallahassee, Florida 32317-4229
Susan Foster, Executive Director
Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling
Department of Health
4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 13, 2002 | Agency Final Order | |
| Feb. 26, 2002 | Recommended Order | Respondent guilty of numerous violations, including Medicaid fraud and illegally prescribing medications. Recommend license revocation. |
