Findings Of Fact Based on the Prebearing Stipulation executed by the parties, and the evidence submitted at hearing, the following facts are determined: Mental Health Board No. 9 ("Board") coordinates mental health programs within the Department's Service District 9-a geographic area encompassing Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties. Three community mental health centers provide services to meet the mental health needs within District 9. (Testimony of Robert Quam) The Board, by contract with the Department's Administrator of District 9, coordinates and disburses State funds specifically appropriated for the purpose of supporting community treatment programs for persons suffering from mental illness, alcoholism and drug abuse. The current contract between the District Administrator and the Board was executed during June, 1979, and contains no allocation to the Board for the provision of residential treatment services for emotionally disturbed children. (Testimony of K. Bray) In 1979, the Florida Legislature appropriated to the Department's central Office of the Assistant Secretary for Operations, Office of Assistant Secretary, a lump sum of $1,295,000.00 for the purchase of residential treatment services for emotionally disturbed children during fiscal year 1979-80. In addition, $705,000.00 was provided, in lump sum, to the Florida Department of Education for education of emotionally disturbed children. (Testimony of K. Bray, Petitioner's Exhibit Nos. 2 and 9) On July 19, 1979, the Department distributed to over 50 providers of social services, a Request for Proposals for the purchase of residential services for emotionally disturbed children. The Request indicated the Department was "seeking to expand its services for emotionally disturbed children and adolescents through the development of residential. treatment- orientation programs," 1/ outlined the features of the program, including statewide standards and other criteria, and invited recipients to submit to the Department's Assistant Secretary for Operations, proposals to provide such services by contractual purchase. (Testimony of K. Bray, Petitioner's Exhibit Nos. 1 and 2) The Department required proposed residential services for emotionally disturbed children to emphasize short term treatment designed to meet the social, emotional, and educational (including vocational) needs of children. Since the Department concluded that there was "no concrete evidence that one specific therapeutic modality works best at reducing or eliminating a child's emotional disturbance," 2/ applicants were invited to propose a wide range of treatment modalities. While successful treatment for emotionally disturbed children includes a therapeutic mental health element, it also must include educational, vocational, recreational, and social components. (Testimony of E. Bray, Dr. Clifford J. Bodarky, Petitioner's Exhibit No. 2) Upon receiving the Department's Request for Proposals for the purchase of residential services for emotionally disturbed children, the Executive Director of the Board met with representatives of the three mental health centers within District 9. They concluded that there was an urgent need for such services within their area, and agreed to submit, through the Board, a coordinated proposal to the Department. The Board's Executive Director drafted the initial proposal, and, after approval by the mental health centers and Board, submitted it to the Department's Assistant Secretary for Operations. The Board's proposal, which would be supported and administered by the three mental health centers, provided for the establishment of 45 therapeutic foster care homes, with close supervision by professional case workers. (Testimony of R. Quam, Petitioner's Exhibit Nos. 3 and 4) The Department received in response to its July 19th request, 20 proposals from providers of social services throughout the State, including one mental health board (Mental Health Board No. 9, Inc.), several mental health centers, a hospital, university, Little River Boys Ranch and Boystown of South Florida. By letter of August 31, 1979, the Department's Assistant Secretary for Operations notified the Board that its proposal had been selected for further review. During September, the Board's Executive Director discussed its proposal with Department representatives in Tallahassee, including Ms. Phyllis Roe, Assistant Secretary for Operations. They specifically discussed one attribute of the proposal-- that it would be a coordinated effort under the Board, with the Board serving as the applicant. Although Board representatives left that meeting with a belief that the Department was amenable to such a role for the Board, Department representatives did not expressly approve, or commit to approval of this feature of the proposal. (Testimony of Terry H. Allen, and Robert K. Quam) By letter dated October 8, 1979, Assistant Secretary Roe informed the Executive Director of the Board that its proposal had been approved, and concluded: "Because your plan involves therapeutic foster homes in three separate Mental Health Center catchment areas and each Center may focus its program a little differently, we will need to execute three separate contract.. I believe the process will be expedited if we deal directly with the Center staff responsible, with your par- ticipation in the process and, with space provided on the contract for your con- currence." (Petitioner's Exhibit No. 7) By letter of October 25, 1979, the Board objected to the Department's decision to bypass it and implement the proposal by contracting directly with each mental health center involved. The Department subsequently executed separate contracts with the three mental health centers included in the Board's proposal. No evidence was introduced to indicate that the program is not being effectively administered pursuant to the provisions of those contracts. (Petitioner's Exhibit No. 8)
Conclusions Funds appropriated to the Department's central Office of the Assistant Secretary for purchase of residential services for emotionally disturbed children are not State mental health funds which must be distributed to and administered by the various district mental health boards under Part IV, Chapter 394, Florida Statutes (1979). Contract principles do not compel the Department to contract with Petitioner Mental Health Board No. 9 to provide residential services to emotionally disturbed children located in District 9.
Recommendation That Petitioner Mental Health Board No. 9's request for relief be DENIED and the Department's actions under challenge be UPHELD.
The Issue Whether Petitioner's application for licensure by examination as a mental health counselor was wrongfully denied.
Findings Of Fact Petitioner attended the University of Tampa and graduated with a degree in social work and psychology in 1978. He subsequently attended Heed University in Fort Lauderdale from 1979 through 1981, graduating in 1981 with a master's degree in counseling psychology. Heed University is not accredited by an accrediting agency approved by the United States Department of Education and was not so accredited while Petitioner was there enrolled. Respondent has worked as a mental health counselor at Tampa Heights Hospital (Exhibit 3), at the Hillsborough Regional Juvenile Detention Center, Charter Hospital, as well as at other facilities, and has served on panels and given lectures at mental health related programs not only in Florida but throughout the United States. Suffice it to say, he has considerable experience as a mental health counselor (Exhibits 4 and 6). At the hearing, Petitioner submitted an original of his transcript at Heed University with impressed seal of the University. This satisfies the objection that Petitioner had not presented an original transcript of his grades at Heed University.
Recommendation It is recommended that Alan Leonard Getreu's application to sit for the mental health counselor licensing examination be denied and this appeal dismissed. ENTERED this 27th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino, Esquire One Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, FL 33609 Linda Biedermann Executive Director Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Based on the evidence offered at the formal hearing in this case, the following facts are found: The Petitioner, Elizabeth R. Hillegas, took the Mental Health Counselor licensure examination administered on April 21, 1989. The Petitioner's examination was given a failing grade. The Petitioner needs to receive credit for correct answers on at least two more questions in order to be entitled to a passing grade. The Petitioner's answers to questions 8, 17, and 33 on the subject examination were incorrect. 2/ All three of the challenged questions, namely questions 8, 17, and 33, inquire as to matters which are part of the basic training in the field of Mental Health Counseling or matters which are crucial to competent practice in the field of Mental Health Counseling. The challenged questions ask about matters which should be known by a competent Mental Health Counselor. Therefore, the challenged questions are within the appropriate subject matter domain for a licensure examination for the profession of Mental Health Counselor. 3/
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Mental Health Counselors issue a final order in this case dismissing the Petition and assigning to the Petitioner a failing grade on the April 21, 1989, Mental Health Counselor licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of May 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May 1990.
The Issue In this case, the Petitioners challenge the determination by the Respondent that Anastasia Rush, Ph.D. is an employee of the Baker County School Board based upon the Division of Retirement's determination that Dr. Rush is not an independent contractor. The issue is whether Dr. Rush should be a member of the Florida retirement system. This determination which turns upon whether she is an employee of the school district. Which turns upon whether or not she is, and was, an independent contractor providing professional services to the school board pursuant to contract.
Findings Of Fact The Board, in compliance with the statutory mandate requiring special education programs for emotionally-handicapped students, contracted with the Child Guidance Center, Inc., (CGC) to provide assessment and counseling of qualified students. See, Ex. A-B and Tr. 215-217. The Board obtained additional funding from grants to provide its students with these mandated special educational programs relating to mental health. See, Ex. E, F, G, H, and M. The Board contracts with neighboring school boards which are unable to afford their own programs and pay the Baker County Board to provide services to severely emotionally disturbed children in their counties as required by the statute. The Board's contracts with mental health specialists are dependent upon funding for special students from state monies allocated based upon the total number of students and upon grant money. See, Tr. 38 and 215-216. The Board has not established a permanent position for a health care professional to render clinical mental health services. See, Tr. 72 and 217. The Board has contracted for these professional services to severely emotionally handicapped students, as well as for the professional services of occupational therapists and physical therapists. See, Tr. 79. CGC, the first provider of services to emotionally-handicapped students, is a corporation whose business is providing mental health care. See, Tr. 29. The Board contracted annually with CGC beginning in 1982 to provide a specified number of hours of counseling for its qualifying students. See, Tr. 31-33. The number of hours stated in the contract with CGC varied according to the availability of funding and established a financial liability limit on the contract. Each contract between the Board and CGC was for the term of the school year and could be terminated by either party upon 30 days notice. See, Ex. B. The contracts between the Board and CGC provided that the services would be rendered in the Baker County public schools. See, Ex. B. CGC billed the Board for each hour of counseling provided by its employees. See, Ex. B. CGC did its billing and accounting on a quarterly basis and arranged with the Board to be paid on a quarterly basis for its convenience. See, Ex. B; Tr. 145-146. Dr. Rush was an employee of CGC and first began providing mental health services to the students of Baker County in the early 1980's. See, Tr. 142. Dr. Rush is a licensed psychologist specializing in child psychology. Dr. Rush received a graduate degree in psychiatric social work from the University of Athens, Greece, and received a Ph.D. in clinical psychology from the University of Florida. See, Tr. 140-141. Dr. Rush has worked in the field of mental health for approximately 20 years. Dr. Rush began her own practice while still working for CGC through Dr. Freeman under the name of Salisbury Counseling Clinic. See, Tr. 168-169 and 183. In 1990, Dr. Rush no longer wanted to be an employee of CGC and became an independent contractor with CGC. See, Tr. 146-147. Dr. Rush's private practice grew gradually and prior to 1991, she had resigned her employment with CGC, concentrating on her private practice. See, Tr. 146. In 1991, the Board cancelled its contract with CGC. See, Tr. 37-38. Wanda Walker, administrator of the special education programs, approached Dr. Rush and asked her if she would provide the mental health care as an independent contractor, as previously provided by CGC. See, Tr. 37-38. On August 16, 1991, the Board entered into two contracts with Dr. Rush to provide different types of mental health counseling to its students. See, Ex. A One contract between Dr. Rush and the Board provided that Dr. Rush would provide mental health services to the Board for at least nine hours per week, from which two hours would be committed to the special needs of the students in the Opportunity Program at Baker County High School. The contract services were for 37 weeks of the 1991-1992 school year. The cost of the service was $40.00 per hour, and Baker County agreed to pay Dr. Rush an amount not to exceed $14,460.00 for the service. The agreement required Dr. Rush to perform the services at Baker County public school sites, and provided that the mental health services should include psychological evaluations, classroom observations, participation as a member of the crisis intervention team, and consultations with teachers, guidance counselors and other appropriate school personnel. Dr. Rush submitted a statement of hours worked every two weeks, and was paid the contractual rate for each hour of professional services rendered. The contract provided that either party could terminate upon 30 days written notice. The other contract between the Board and Dr. Rush provided that Dr. Rush would provide mental health services to severely emotionally disturbed students in the Day Treatment Program at Southside Educational Center. This contract provided that Dr. Rush would provide case management, assessments and evaluations, consultation to school personnel, mental health services appropriate to the program, and direct the counseling services provided to Day Treatment Program students. The contract provided that Dr. Rush would provide for 10 hours of professional services per week for 37 weeks at a cost of $40.00 per hour not to exceed $14,550.00. The contract provided that Dr. Rush would submit a statement of hours worked every two weeks, and that the agreement could be terminated by either party upon 30 days written notice. On June 4, 1992, Dr. Rush entered into an agreement to provide professional services to the Board for the 1992-1993 school year. This contract duplicated the previous contract for nine hours per week of mental health services for 37 weeks in the 1992-1993 school year at a cost of $40.00 per hour not to exceed $14,460.00. The only significant change in this contract was that the contract covered the provision of services by Dr. Rush or her associate, Nancy Davie. On June 4, 1992, Dr. Rush entered into a contract with the Board to provide mental health services to severely emotionally disturbed students similar to the previous contract for the 1991-1992 school year. The contract for mental health services to severely emotionally disturbed students did not provide for the provision of these services by Nancy Davie. When the June 1992 contracts were executed, Dr. Rush had incorporated her professional practice; however, she entered into the contracts with the Board in her individual name. The Board was unaware of Dr. Rush's incorporation. Dr. Rush did not believe that there was a difference between contracting in her name or the name of her corporation; however, this contract was subsequently amended to indicate that her corporation was the contracting entity. See, Tr. 152-153, 189 and 190. Dr. Rush contracted with the Board in the name of her corporation, Protepon Counseling Center, in 1993. Dr. Rush maintained two offices, one in Jacksonville and one in Macclenny, where she held herself out to the public as a individual providing psychological counseling and where she conducted her professional business. Generally, Dr. Rush and her associates provided their services at the schools within the district; however, Dr. Rush maintained a professional office in Macclenny, Florida, and met with students and their parents at her professional office as necessary. See, Tr. 71. Both Dr. Rush and CGC provided services at the various schools within the district to alleviate the need to transport children and disrupt their schedules. Dr. Rush and her associates used the offices of guidance counsellors when at the various schools. See, Tr. 14 and 85. During the time that Dr. Rush has provided mental health services to the Board, Dr. Rush has provided her own tools for counseling and assessing students. She provides all of her own supplies. See, Tr. 88 and 297-298. Dr. Rush is not reimbursed for the use of her supplies or standardized tests. See, Tr. 211 Dr. Rush provides mental health counseling to private individuals and agencies, to include St. Johns River Hospital, the Center for Life Enrichment, Capp Care, Flamedco, Inc., and the Florida Medical Association Alternative Insurance Program. See, Tr. 160-165. Dr. Rush provides a profit sharing plan to her associates and maintains workers compensation insurance for her employees. See, Tr. 174 and 208. The contracts with the Board make up only a fraction of Dr. Rush's gross income from her professional practice. See, Ex. J(2); Tr. 169-170. Dr. Rush maintains her own retirement fund and has done so since she left CGC in 1991. See, Ex. J(3); Tr. 172-173. Neither the Board or Dr. Rush consider their relationship to be an employment relationship. See, Tr. 149 and 217. It was never the intent of Dr. Rush to be an employee of the Board or the Board's intent for Dr. Rush to be its employee. See, Tr. 149 and 181. Both Dr. Rush and the Board anticipated the continuation of the independent contractor relationship. The Board paid Dr. Rush for the services rendered by her and her associates from the special fund and not from a salary or payroll account. See, Ex. I. Every two weeks, Dr. Rush submitted statements of professional services rendered by her or her associates and charged the Board per hour for these services. See, Tr. 180-182. Dr. Rush was paid for each hour of service which she or her associates provided, and was not paid a salary or reimbursed or compensated for travel costs or supplies. See, Ex. I; Tr. 297 The statements do not indicate whether Dr. Rush or one of her associates provided the service to the Board. The Board never paid any of Dr. Rush's associates. See, Tr. 43-44, 106 and 107. Dr. Rush's associates have always been paid by Dr. Rush. See, Tr. 151-152. The Board never deducted withholding taxes from its payments to Dr. Rush. See, Ex. I. Dr. Rush paid her own social security tax. See, Tr. 207. Dr. Rush was paid by the Board as she is paid by all of her clients at the agreed-upon hourly rate for her professional counseling services. See, Ex. I; Tr. 182. In making its determination, the Division of Retirement relied upon the answers provided by Dr. Rush and Wanda Walker to a questionnaire sent out by the Division of Retirement. See, Ex. O. Both Dr. Rush and Ms. Walker answered the questionnaire without help from legal counsel and without understanding its purpose or legal implications. See, Tr. 77-79, 82, and 176. Dr. Rush provided an annual orientation to new personnel and students; however, she did not take any training program required by the Board during the period of these contracts. The answers provided by Dr. Rush and Ms. Walker were ambiguous regarding the fact that the annual orientation in which Dr. Rush participated was provided by Dr. Rush to Board employees. See, Ex. O; Tr. 70, 88-89, and 178-179. Using the school calendar, Dr. Rush prepared a schedule calendar indicating the dates, times, and school locations at which she or her associates would provide professional services under the contract with the Board. See, Tr. 178. See, Tr. 45-48, and Ex. D. Pursuant to their contract, Dr. Rush provided professional services for the Board at the times and dates when students were attending school. See, Ex. C. Dr. Rush set her own schedule within the confines of the school day and the school year. The purpose of the calendar schedule was to alert teachers as to Dr. Rush's availability at particular schools. See, Tr. 85. Dr. Rush and her associates did not check in with a supervisor at the various schools. Dr. Rush called Ms. Walker, who notified the appropriate school when a new counsellor would be going to that school. See, Tr. 121-122. This practice was designed for security reasons to let the school know for security reasons that a new individual would be providing services. Dr. Rush was available if there was an emergency. When paged, Dr. Rush called the school and determined from the facts if it was necessary for her or one of her associates to respond. See, Tr. 131 and 297. Dr. Rush was not subject to being summoned by Board employees, but exercised her professional judgment about the by of response which was necessary. See, Tr. 131 and 297. Dr. Rush and her associates evaluated students and recorded the results of their testing and observations. They participated as part of the multidisciplinary team required by law to assess special education students and prepare their educational programs. In this regard, the reports of Dr. Rush and her associates were expressions of their professional expert opinion. See, Tr. 66. It was the experience and expertise of Dr. Rush and her associates which the Board sought in contracting with Dr. Rush. The Board did not direct Dr. Rush's counseling of students. See, Tr. 81-87. Dr. Rush and her associates conducted their counseling without any control from the Board. See, Tr. 83-84 and 227.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Rush be treated as an independent contractor and denied participation in the Florida Retirement System. DONE AND ENTERED this 12th day of January, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3378 Both parties submitted proposed findings which were read and considered. Contrary to the Division's rules, Baker County did not number its findings and did not limit them to short statements of fact. Therefore, although most of its findings were adopted in the order originally presented, it is virtually impossible to identify which of the findings were adopted. In order to assist those attempting to determine which facts were adopted, and which were rejected and why, the numbers listed under the Recommended Order column below reference the paragraphs in the Recommended Order which contain the findings suggested by the Division, or the alternative findings suggested by Baker County which the Hearing Officer determined were based upon the more credible evidence. It is readily apparent when the reason is stated for rejecting the proposed findings. Retirement's Findings Recommended Order Paragraphs 1-3 1,2,3,6,7,13 Paragraph 4 14 Paragraph 5,6 19 Paragraph 7 Rejected as contrary to more detailed descriptions of the contracts at issue. Paragraph 8,9 20,21,22 Paragraph 10 Irrelevant. Paragraph 11 As indicated in the Conclusions, there is no issue concerning the fact that employees of school boards are qualified for membership in the retirement system. The issue is whether Dr. Rush was an employee. Paragraph 12,13,14 23,24,25,49,50 Paragraph 15 26,32,34 Paragraph 16 The differences in the terms of the board's contracts with CGC and Dr. Rush are not relevant. Paragraph 17 1,53,54 Paragraph 18 48,49 Paragraph 19 37-44 Paragraph 20-23 2-4,37-44. The manner in which some non-instructional staff are paid is irrelevant. Paragraph 24 26,28-31 Paragraph 25 45-47 Paragraph 26 51,52 Paragraph 27-28 53 paragraph 29 26,28 Paragraph 30,31 25 Paragraph 32,33 Irrelevant argument. COPIES FURNISHED: A.J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 Sylvan Strickland, General Counsel Department of Management Services Knight Building, Suite 309 2737 Centerview Drive Tallahassee, FL 32399-0950 John W. Caven, Jr., Esquire Claire M. Merrigan, Esquire CAVEN, CLARK, RAY & TUCKER, P.A. 3306 Independent Square Jacksonville, FL 32202 Jodi B. Jennings, Esquire Assistant General Counsel Florida Division of Retirement Cedars Executive Center, Bldg. C 2639 North Monroe Street Tallahassee, FL 32399-1560 William H. Linder, Secretary Department of Management Services 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue for consideration in Case No 00-2973, is whether the licensee, Holly Hill Care Center, Inc., should be subject to administrative fines for failure to timely correct four (4) Class III deficiencies; two (2) Class IV deficiencies, and one (1) unclassified deficiency at Holly Hill Care Center, an assisted living facility (hereinafter Respondent) and, if so, the amount.
Findings Of Fact The Agency is responsible for the licensing and regulation of assisted living facilities (ALF) in Florida. The Respondent is licensed to operate Holly Hill Care Center as an ALF in Holly Hill, Florida. Mr. Robert A. Cunningham, a health facility Evaluator II, was called as a witness for the Agency. Mr. Cunningham identified Item One of Composite Exhibit 1 as a copy of a survey for the ALF bi-annual licensure survey conducted on February 23, 2000. Mr. Cunningham participated in conducting that survey. The Respondent was cited with Tag A-006 for providing services beyond the scope of its license, specifically, caring for eight mental health residents. The evidence presented that the residents in question were mental health residents was that they were being treated by ACT and had made application for Optional State Supplement. The Respondent was cited for Tag A-520 for failing to ensure that all staff persons who had been employed for more than 30 days had documentation for a health care provider stating they were free of the signs and symptoms of communicable disease. The evidence showed a physician at the local health department had examined the employees. The doctor had noted that the employees were in “good health” instead of certifying that the employees were free of signs and symptoms of communicable disease. The Respondent was cited with Tag A-608 for failing to ensure that medication records were accurate and up to date for each resident. This related to residents for whom medications had been ordered, but not administered. The facts revealed that ACT was providing their medication, but that ACT had failed to provide the medication. Although it was not documented in the records that the Respondent made an effort to obtain the medications, evidence to that effect was presented at the hearing. The Department acknowledged that ACT had suffered some cut backs that had prevented it from providing medications to some of ACT’s clients. An ALF’s duties regarding medication administration are defined by its contract with the resident. The Department did not introduce a contract; however, it was evident from the testimony of the witnesses that provision of medications was not included in the contract for care. The Respondent was cited with Tag A-615 for failing to engage a consulting pharmacist within the required time frame. This arose from the violation alleged above. The Respondent had difficulty engaging a pharmacist. When one was engaged, he was going on vacation and the contract could not be signed until his return. The Respondent was cited with Tag A-804 for failing to provide each resident with a therapeutic diet, as ordered by the resident’s health care provider and with Tag A-806 for failing to have standardized recipes available for food service staff to ensure that the nutritional needs of the residents were being met. The Respondent conceded it had violated these provisions. The Department levied fines of $500 and $150, respectively for these violations. The Respondent was cited with Tag A-814 for failing to engage a consulting dietician or nutritionist within the prescribed time in response to the Tags A-804 and A-806, above. The Respondent admitted that it had been late in engaging a nutritionist/dietician; nevertheless, it appeared that it had made a good faith effort in a difficult situation in which few qualified individuals were available.
Recommendation Based upon the violations proven and admitted above, the Respondent violated Tags A-804, A-806 and A-814 for which the Department levied respectively fines of $500, $150, and $300. The Department should enter its final order assessing those fines for those tags. The other violations alleged were not proven or the predicate for the requirement alleged to have been violated was not established. No action should be taken on the Tags A-006, A-520, A-608 and A-615. DONE AND ENTERED this 11th day of June, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of June, 2001. COPIES FURNISHED: Harry S. Hartman, Owner Holly Hill Care Center 1562 Garden Avenue Holly Hill, Florida 32117-2145 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue The issue presented herein is whether or not a CON to construct a 60-bed short-term psychiatric hospital in District XI should be issued to Florida Medical Center (FMC).
Findings Of Fact FMC seeks a CON for a 60-bed free-standing psychiatric facility to be located in the Key Largo area of Monroe County in HRS District XI. FMC intends to provide 6.25 percent of its patient days at no charge to indigent patients. It further intends to provide another 6.25 percent of its patient days to HRS' clients and Baker Act patients at 50 percent of its projected charge, or $200 per day. (FMC Exhibit 2, Table 7). FMC proposes to build this facility at a cost of $6,060,000. Dr. Richard Matthews, Ph.D., has been executive director of the Guidance Clinic of the Upper Keys since 1973 and is a clinical psychologist. He is responsible for the overall administration and supervision of mental health, alcohol, drug abuse and out-patient services provided under contract with HRS. Dr. Matthews was qualified as an expert in clinical psychology and the mental health delivery health system in Monroe County. (FMC Exhibit 13). There are three guidance clinics in Monroe County, one each for the upper, lower and middle Keys. HRS contracts through each of these clinics to provide mental health care for its clients. There are no community mental health centers in Monroe County and the clinics are the sole means of delivering mental health care on behalf of HRS' clients within the county. Currently, the guidance clinic of the upper Keys places its in- patients in Harbor View Hospital in Dade County at a cost of $236 per day. Neither Harbor View nor any other hospital provides free days to any of the guidance clinics for in-patient psychiatric care. (FMC Exhibit 13, P. 9) Jackson Memorial Hospital does not accept indigent or charity psychiatric patients from Monroe County. There have been occasions where patients without resources have been unable to be hospitalized although hospitalization was indicated. The middle Keys has a crisis hospitalization unit with a limited number of beds. Patients needing hospitalization longer than three days must be transferred to Harbor View or some other facility in the District. The 15 beds at Depoo Hospital in Key West are not readily accessible to residents of the upper Keys. Residents needing psychiatric services usually go to hospitals in Dade County. Coral Reef Hospital, the nearest psychiatric facility to Petitioner's proposed facility, has in the past refused to negotiate a discounted rate with the guidance clinic. Dr. Matthews, on one occasion, sent a patient to Coral Reef who was refused treatment. Currently, no psychiatrist practices in Key Largo because there are no psychiatric beds to which a psychiatrist could admit patients. The discounted rate of $200 per day quoted by FMC is some $36 per day less than the guidance clinic currently pays to providers for referrals of its patients for psychiatric care. Additionally, the 6.25 percent of free care that Petitioner proposes is greater than the free care which the guidance clinic currently receives from any facility since no facility presently gives any free care to the clinic. The guidance clinic supports Petitioner's CON application and will contract with Petitioner who provides services for in-patients. Grant Center is a long-term 140-bed psychiatric hospital specializing in the treatment of children and adolescents. It is the nearest facility to Petitioner's proposed facility. Grant Center has agreed to refer adult patients to Petitioner. Grant Center treats 2-3 adults a month who need psychiatric care. (FMC Exhibit 14). There is one hospital providing psychiatric care in Dade County which was surveyed by the Health Care Finance Administration (HCFA) in March, 1988. Currently, a third party insurance carrier no longer utilizes Grant Center because of price. If a facility has prices which carriers consider too expensive, utilization will go down. (FMC Exhibit 14, P. 7). Grant Center currently contracts with HRS to provide its clients care at a rate of approximately $350 per day, a rate one half of Grant Center's normal rate. Jackson Memorial is the only Dade County hospital which will treat an indigent psychiatric patient. Grant Center intends to assist Petitioner with staffing or programmatic needs. It has 80-100 professional staff, most of whom live in close proximity to Key Largo. Robert L. Newman, C.P.A., is the chief financial officer at FMC. He testified, by deposition, as an expert in hospital accounting and finance. Newman analyzed the Hospital Cost Containment Board (HCCB) reports for each hospital in District XI which provides psychiatric care. There is no free standing psychiatric hospital in the District which reports any indigent or uncompensated care. Among area acute care hospitals which have psychiatric units, Miami Jackson rendered 38.89 percent indigent care, Miami Children's rendered 6.5 percent indigent care, and no other facility reported that it rendered more than 1.75 percent indigent care. (FMC see Exhibit 11, disposition exhibit 1). Jackson provides no free care to Monroe County residents and Miami Children's care is limited to treating children while Petitioner is seeking adult beds. Jayne Coraggio testified (by deposition) as an expert in psychiatric staffing and hiring. She is currently Petitioner's director of behavioral sciences. The ideal patient to staff ratio is 4 to 5 patients per day per professional staff member. During the evening shift, the ideal patient ratio per professional staff member is 7 to 8 patients. (FMC Exhibit 12, PP. 6-7). Petitioner's facility is adequately staffed based on the above ratios. FMC is considered overstaffed in the psychiatric unit by some of the other area hospitals since they do not staff as heavily as does Petitioner. Lower staffing ratios can affect quality of care since patients and their families would not receive as much therapy. Family therapy is important because the family needs to know about changes in the patient in order to make corrective adjustments. The family that is required to travel in excess of 45 minutes or more one way is less likely to be involved in family therapy. Islara Souto was the HRS primary reviewer who prepared the state agency action report (SAAR) for Petitioner's CON application. (FMC Exhibit 15). District 11 has subdivided into five subdistricts for psychiatric beds. Florida is deinstitutionalizing patients from its mental hospitals. To the extent that private psychiatric hospitals do not accept nonpaying patients, their existence will not solve the problem of caring for such patients. Souto acknowledged that the local health councils conversion policy discriminates against subdistrict 5 because there are so few acute care beds in the subdistrict. In fact, the conversion policy actually exacerbates the maldistribution of beds in the district. (FMC 15, page 26). The psychiatric facility nearest the proposed site (Coral Reef), had an occupancy of 90.3 percent. Souto utilized a document entitled Florida Primary Health Care Need Indicators, February 1, 1986, and determined that Monroe County has not been designated as a health manpower shortage area, nor a medically underserved area. This information is relied upon by health planners to determine the availability of health manpower in an area. This report refers both to physicians and R.N.'s. The average adult per diem for free-standing hospitals in District 11 range from $430 at Charter to just over $500 at Harbor View. Although districts have established subdistricts for psychiatric beds, no psychiatric bed subdistrict in any district has been promulgated by HRS as a rule. The access standard that is relevant to this proceeding is a 45-minute travel standard contained in Rule 10-5.011(1)(o)5.G. That standard states: G. Access Standard. Short-term inpatient hospital psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of this service area's population. Here, the standard refers to the service area which is determined to be an area different than a service district. Applying the travel time standard on a service area basis makes the most sense since the subdistrict is established by the local health council and not the applicant. Analyzing this access standard on a sub-district level, 90% of the sub-districts population is not within 45 minutes of any facility anywhere in sub-district V since the sub-district is more than two hours long by ordinary travel and the population is split two-thirds in lower Dade County and one-third in Monroe County, the bulk of which is in Key West. (FMC Exhibit 17). Therefore, a facility located on either end of this sub-district is not readily accessible by the applicable travel standards to citizens at the other end of the sub-district. This access standard must however be measured and considered with the needs for psychiatric services of the kind Petitioner is proposing to provide. Petitioner has not presented any access surveys or assessments of the caliber relied upon by the Department in the past. Petitioner's facility which would be located in the Key Largo area will no doubt provide better geographic accessibility to residents of District XI who live in the Key Largo area. HRS has in the past used a sub-district analysis to determine geographic accessibility for psychiatric beds even though it has not promulgated a rule for sub-districts for psychiatric beds. See, for example, Psychiatric Hospital of Florida vs. Department of Health and Rehabilitative Services and Pasco Psychiatric Center, DOAH Case No. 85-0780. Likewise, the Department has approved the conversion of acute-care beds to psychiatric beds even though it found that there was a surplus of psychiatric beds in the district. (Petitioner's Exhibit 7). The Department has in the past used a geographic access analysis to approve psychiatric beds in District XI and has used the sub- district analysis or a time travel analysis in its review of Cedars, Coral Reef, Depoo (for psychiatric beds) and the Glenbiegh case (for long term substance abuse). The bed need calculations for the January, 1992 planning horizon shows a surplus of 180 short-term in-patient psychiatric beds. (HRS Exhibit 2). The occupancy level for short-term psychiatric beds in the district is below 70%. (HRS Exhibit 2, pages 11-12). Additionally, the occupancy standards of the local and state health plan, of which the department is required to review CON applications, have not been met in this instance. (HRS Exhibit 2, Pages 6-7). Petitioner has not submitted any documentation to HRS regarding special circumstances need. Petitioner's proposal at final hearing for a staff referral agreement with another local hospital was not contained in the CON application filed with HRS. (FMC Exhibit 14, pages 11-12). Although Petitioner has alluded to some unspecified access problem for residents in the Florida Keys, Petitioner has not documented a real access problem and certainly not a demonstration of inaccessibility under the rule access standard. (Florida Administrative Code Rule 10-5.011(1)(o)5.g.)(HRS Exhibit 2, pages 14-15). Although the proposed project would increase availability and access for underserved groups in the district, the percentage of total patient days for "indigents" is not substantial and certainly not to the point to warrant deviation from the usual access criteria. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, IT IS RECOMMENDED THAT: Petitioner's application for a Certificate of Need to build a 60-bed free- standing psychiatric hospital in District XI be DENIED. DONE and ENTERED this 28th day of February, 1989 in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1989.
The Issue The issue to be resolved in this proceeding is whether Petitioner was constructively terminated from her employment with Respondent because of her national origin.
Findings Of Fact Petitioner is a female of German and Turkish descent and has a somewhat heavy German accent. In 1995, Petitioner was employed with Bay Medical Center, a hospital in Panama City, Florida. Petitioner was employed as a unit secretary for one of the hospital units. She voluntarily resigned that position in 1997. In March of 1998, Petitioner was again employed by Bay Medical Center as a unit secretary. She was a member of a secretarial float pool and floated from one unit of the hospital to another as needed. Later, due to a hospital reorganization, the unit secretarial position was reclassified to a Clerical Support Associate (CSA) position. The CSA position included more duties than the unit secretary position and had a higher wage. As a CSA, Petitioner was responsible for providing essential clerical support as required by patient’s and clinical staff. Her duties included entering physician orders into the hospital’s computer system, scheduling tests and procedures for patients, charging and crediting patient bills, greeting patients and visitors, chart maintenance, and otherwise assisting as needed. Petitioner eventually, was assigned as a full-time CSA in the Critical Care Unit (CCU). The CCU was a very small unit with only eight open beds and was the least active unit in the hospital at that time relative to the duties of a CSA. The lower activity resulted in less work and less stress for the CSAs assigned to the CCU. Because of the light workload and low- stress environment for CSA’s, P.J. Dotson, Petitioner's supervisor in the CCU, used the CCU to train new CSAs. Because Petitioner had experience with the work, she occasionally helped train new CSAs. At some point, Ms. Dotson determined that the CSAs in the CCU were only performing two and a half to three hours of clerical work during an eight-hour period. The small amount of productivity by the CSAs was unacceptable. In order to increase the CSAs’ productivity, Respondent changed the job role of the CSAs in the CCU, including Petitioner's, and added basic patient care tasks. Some of the new tasks included feeding patients and helping patients on and off bedpans. Additionally, the CSAs' hours changed to require them to come in earlier. On December 12, 2000, Petitioner was disciplined by Ms. Dotson for complaining to a physician about Respondent's decision to change the job requirements of the CSAs in the CCU. The physician was Respondent's "customer," not Petitioner's supervisor and Ms. Dotson felt that it was inappropriate for Petitioner to discuss her employment situation with a "customer." Ms. Dotson’s position was a reasonable position by an employer. After the disciplinary action, Petitioner declined the upgraded CSA position because she did not want to change her working hours and did not want to do hands-on patient care. Rather than terminating Petitioner's employment, Respondent allowed Petitioner to transfer to the EKG department to work as an EKG technician which position also included some clerical tasks. Petitioner served as an EKG technician for two months. During those two months, Petitioner experienced numerous performance problems and was disciplined several times by Ms. Dotson. Petitioner admits she simply was not very good at direct patient care and performed poorly as an EKG technician. On February 20, 2001, Ms Dotson issued Petitioner a Notice of Corrective Action based on a number of issues that had arisen beginning around January 15, 2001. The Notice states, "During week two, we started experiencing several problems with the paper work [Petitioner] was doing. Files were not in correct order (alphabetical), Cardiology Associates were complaining about paperwork, [and] the unsigned copies of Echo reports were not getting to M.D.s for their signature.” These problems were detrimental to efficient and timely patient care in an area of health care, cardiology, where efficiency and timeliness of care are very important. Due to these concerns, Ms. Dotson changed Petitioner's orientation schedule and established specific times to achieve performance goals. However, the changed schedule did not help resolve Petitioner's performance problems. After Petitioner was fully trained to perform an EKG procedure, Petitioner "developed the inability to perform this task" within a few weeks. Petitioner also improperly double-billed a large number of Respondent's patients. The double billing was a major oversight on Petitioner's part that could have been seriously detrimental to Respondent's ability to serve Medicare and Medicaid patients if the problem had not been discovered and resolved by Ms. Dotson. On March 8, 2001, Petitioner received a final written warning because her work-related problems persisted. At that time, Ms. Dotson informed Petitioner that she needed to find a different position within Bay Medical Center, resign, or be terminated. Ms. Dotson also took this opportunity to coach Petitioner on how to sell herself to other managers, so Petitioner could acquire another position. One of the areas Ms. Dotson discussed with Petitioner was her communication skills. Ms. Dotson explained that she needed to communicate better because she has an accent, does not articulate well and often speaks with her hands in front of her mouth thereby making it difficult for others to understand her. In addition, Ms. Dotson explained to Petitioner that she demonstrated a somewhat negative attitude and failed to take responsibility for her mistakes. These traits were concerns for managers in the various departments throughout the hospital. These traits were also demonstrated at the hearing. There was no evidence that any action taken by Ms. Dotson was done for discriminatory purposes or that the reasons given for such action were pretextual. Indeed, Petitioner admitted that Ms. Dotson did not discriminate against her. However, because of these traits, Petitioner had a difficult time finding another position within Bay Medical Center, even though there was a high turnover rate among CSAs throughout the hospital. Eventually, Petitioner was accepted by Ms. Pat Owens to serve as a CSA on Three South, a medical/surgery unit at Bay Medical Center. Indeed, Petitioner’s transfer to Three South was against hospital policy since Petitioner was slated for termination from her earlier position and had received her final warning. However, in order to help Petitioner, the transfer was allowed. Although Petitioner had served as a CSA in CCU previously, the working atmosphere of Three South was very different. Three South was, as Petitioner described it, a "very, very busy floor." Three South had 39 beds and over 200 physicians on staff. However, during Ms. Owen’s time as manager of Three South, Ms. Owens did not formally discipline Petitioner regarding her job performance. Ms. Owens did not testify at the hearing. Petitioner admits that she made mistakes while Ms. Owens was her supervisor. She testified that there were "minor things" that Ms. Owens would make her redo. However, under these facts, the fact that Ms. Owens chose not to discipline Petitioner formally is not evidence of discrimination. The hospital was not satisfied with the way Three South was being managed by Ms. Owens. The unit staff were not following various hospital protocols impacting patient care. Numerous complaints were made by both patients and doctors regarding the quality of care being delivered by the unit staff. Therefore, in April, 2002, Ms. Andi Bush was hired as the manager of Three South. She was hired in order “to get Three South into shape.” Ms. Bush also became Petitioner's supervisor and demanded considerably more performance and compliance with protocols of all the employees on Three South. After Ms. Bush became manager, Petitioner claims that Ms. Bush commented on Petitioner's accent and that "[Ms. Bush's] hearing would be perfect if anybody else would talk to her. But whenever I said something to her or tried to quote her [sic] about something, all of a sudden she had this major problem." This alleged evidence is not convincing. Ms. Bush wears a hearing aid and relies on "lip-reading" because she has a significant amount of hearing loss due to nerve damage. She often has difficulty hearing others' words and asks others to repeat themselves. This difficulty was demonstrated at the hearing. In addition, Petitioner did not provide any details about the times Ms. Bush allegedly commented on her accent. There is no evidence in the record about how often or in what context any such comment allegedly happened. Given the facts that Ms. Bush is hearing impaired and reads lips and that Petitioner often speaks with her hands in front of her mouth, has an accent and does not enunciate her words, comments by Ms. Bush regarding Petitioner’s accent do not support a finding of discrimination. Ms. Bush, unlike her predecessor, enforced the hospital protocol’s and demanded that her staff comply with those protocols. It was clear that Ms. Bush's job, as the new manager of Three South, was to impose accountability and discipline on that unit. Indeed, Petitioner testified that, during Ms. Bush's initial meeting with the employees on Three South, Ms. Bush made it clear that she believed Three South was a "mess" and that "she was going to straighten it out." Petitioner failed to provide any evidence that Ms. Bush applied the rules or issued discipline inconsistently among the employees or that employees of other nationalities were treated better than her. There is no comparator evidence in the record to demonstrate that Ms. Bush's discipline of Petitioner was for discriminatory purposes. Under Ms. Bush's administration, Petitioner was disciplined on several occasions for various performance issues. On May 23, 2002, Petitioner was issued a written warning for failing to enter a physician's order. The order requested a consultation with a cardiologist to determine what treatment the patient needed. Because Petitioner did not enter the order, the consultation was delayed for over 24 hours. When the consultation was eventually performed, the cardiologist determined that the patient needed a pacemaker. Petitioner's mistake could have had dire consequences for the patient involved. Petitioner does not deny that she failed to enter the order but claims that she was told by her co-workers that she did not need to enter the order because the patient was going to be transferred to a different floor. However, Petitioner knew that other co-workers could not instruct her not to follow the hospital’s protocol for entering a physician’s order in a timely manner. The discipline she received was clearly not pretextual and was appropriate for her failure to enter the physician’s order. On June 5, 2002, Petitioner received a written warning for excessive absenteeism. Again, Petitioner does not deny that she was excessively absent. Instead, Petitioner alleges that her absences "weren't really more extensive than anybody else's." Petitioner later admits, however, that these other employees were also punished for their tardiness and absenteeism. Petitioner provided no other evidence that Respondent applied its attendance policy inconsistently among the employees. Given these facts, the evidence is insufficient to demonstrate that Petitioner’s disciplinary action was discriminatory or pretextual. On July 3, 2002, Petitioner was suspended following two different incidents. First, Petitioner placed several documents in the wrong patient's chart. Second, Petitioner failed to properly consult a physician regarding a patient care issue. Both of these incidents could have had detrimental impact on the health and safety of Respondent's patients. Petitioner offered no evidence to dispute the accuracy of the report of these incidents. On August 7, 2002, Ms. Bush held a corrective action meeting with Petitioner to discuss the following incidents: (1) Petitioner's repeated failure to enter consultations into the computer; (2) Petitioner's repeated failure to consult physicians in a timely manner; (3) a patient complaint that her call light was not being answered during Petitioner's shift; and (4) Petitioner’s failure to file a stack of documents as she was assigned to do, but instead twice sent them to medical records to file. Petitioner denies making these mistakes, but her denial is based on her lack of memory for the events. Indeed, Ms. Bush based the disciplinary action on complaints and witness statements she received form a variety of sources. Again there was no evidence that the Ms. Bush’s actions were discriminatory or pretextual. Finally, on August 14, 2002, Petitioner was given her annual performance appraisal. Petitioner was rated as "unsatisfactory" based on her record of discipline and the real potential of her performance failures to adversely impact patient care. Based on her previous performance problems and the performance appraisal, Petitioner was told that she could no longer work as a CSA at Bay Medical Center. Indeed, Ms. Dotson who was consulted regarding Ms. Bush’s decision, concurred that Petitioner should not be transferred to any CSA position or position involving patient care due to past mistakes which were potentially detrimental to a patient’s health. Respondent gave her two weeks to find a different position within the hospital, resign, or be terminated. Respondent, through its personnel department, tried to assist Petitioner to find a position within the facility. After reviewing the printout of available positions with Petitioner the only positions that were open, and for which Petitioner was qualified, were in Dietary, Housekeeping, and Laundry. Petitioner did not offer any evidence of any other positions outside those areas that were available and for which she was qualified. Petitioner refused to apply to any of these positions and, instead, resigned on August 28, 2002. The evidence did not demonstrate that her resignation was forced or caused by any discriminatory actions by Respondent. Again, Petitioner failed to provide any evidence that Respondent discriminated against her and the Petition For Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 25th day of October, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Margie Beach-Gutierrez 5807 Butler Drive, Apartment 4 Callaway, Florida 32404 L. Taywick Duffie, Esquire Price H. Carroll, Esquire Hunton & Williams, LLP 600 Peachtree Street, Suite 4100 Atlanta, Georgia 30308 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
