The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times material each of the petitioners was licensed by the Department of Health and Rehabilitative Services in accordance with Chapter 397, Florida Statutes. Each was enrolled as a mental health provider in the Florida Medicaid program under section 409.906(8), Florida Statutes, administered by the Agency for Health Care Administration (Agency). The Agency's handbook describing community mental health Medicaid provider requirements states that to be enrolled in Medicaid a provider must have a current contract for the provision of community mental health services or hold a regular license from the Department of Health and Rehabilitative Services (HRS) as an alcohol or drug abuse treatment and prevention program. The petitioners were licensed but did not have and still do not have contracts with HRS' Alcohol, Drug Abuse and Mental Health program office. In or about April 1995, staff in the agency's Medicaid program office revisited a prior interpretation of the Medicaid statute and determined that an HRS contract was required. After consulting with HRS as to which providers were under contract, the agency sent notices to those, including petitioners, which it deemed were out of compliance. The notification letter provides, in pertinent part: According to s. 409.906(8), Florida Statutes, Medicaid can pay for community mental health services that are provided in a mental health, drug abuse or alcohol abuse center that is licensed, if applicable, and under contract to the Department of Health and Rehabilitative Services (HRS), Alcohol, Drug Abuse and Mental Health (ADM) program office. Since your center does not have a contract with the ADM office, your Medicaid provider number must be cancelled. (Petitioners' exhibit no. 24) The letter was amended later in October to establish a 30-day delay in the termination effective date. As stipulated, the lack of contract is the only basis for termination of the petitioners' provider numbers. The agency does not consider this basis as a "violation" subject to sanction or discipline. Effective December 1995, the agency changed its Medicaid handbook to reflect the requirement of a current HRS contract for the provision of community mental health services.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter its final order revoking the Petitioners' Medicaid provider numbers. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. MARY CLARK, 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 20th day of June, 1996. COPIES FURNISHED: Gordon Scott, Senior Attorney Agency for Health Care Administration Fort Knox 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 John M. Knight, Esquire 2804 Remington Green Circle, Suite 4 Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Ft. Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Conclusions Having reviewed the Amended Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Notice of Intent to Deny and Election of Rights form to the Petitioner. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement, which set forth requirements of continued licensure imposed upon the Petitioner. The failure to comply with these requirements may result in licensure revocation or application denial as set forth in the Settlement Agreement. ORDERED at Tallahassee, Florida, on this 24 day of _Dece bey~ , 2012. Filed December 26, 2012 3:20 PM Division of Administrative Hearings
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct pry of this Final Order was served on the below-named persons by the method designated on this 7/ lay of [ech , 2012. Richard Shoop, Agency Ch Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Assisted Living Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Suzanne S. Hurley Rafael Gaitan, Esq. Office of the General Counsel Gus Suarez, Esq. Agency for Health Care Administration Counsel for Southern Parks, Inc. (Electronic Mail) 1110 Brickell Avenue, Suite 407. Miami, Florida 33131-3135 (U.S. Mail) | Pat Caufman, Field Office Manager R. Bruce McKibben Area 5/6 Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Electronic Mail) (Electronic Mail) Paul Brown, Health Facility Evaluator Supervisor Area 5/6 Agency for Health Care Administration (Electronic Mail) RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, ELIZABETH DUDEK GOVERNOR Better Health Care for all Floridians INTERIM SECRETARY August 8, 2012 Sanny P. Panningbatan, Administrator Southern Parks, Inc. d/b/a/ Southern Oaks ALF P.O. Box 789 Wauchula, FL 33873 re: Case No.: 2012005197 AMENDED NOTICE OF INTENT TO DENY Dear Ms. Panningbatan: The Agency for Health Care Administration hereby DENIES the application by Southern Parks, Inc. d/b/a Southern Oaks ALF for renewal of its Assisted Living Facility license. The Specific Basis for this determination is a failure by the facility to pay outstanding fines and assessed fees from 2008 in the amount of $154; a failure by the facility to pay an outstanding Medicaid fine in the amount of $6000 in Case #121947000; a failure by the facility to obtain a satisfactory Level 2 background screen for its Chief Financial Officer; and the facility has shown a pattern of deficient practice as indicated in detail below. The applicant failed to meet minimum licensure standards pursuant to Sections 408.809, 408.815(1)(d), 408.831, 429.14(1)(e), 429.14(3), and 429.174, Florida Statutes.’ On June 22, 2010, a complaint investigation was conducted. A widespread Class I deficiency was cited because the facility was found out of compliance with local authorities that oversee building construction codes and water and fire safety standards. The county fire jurisdiction had to issue a cease and desist order to suspend the use of the facility as related to multiple electrical violations; a “boil water” alert had also been put in place and all of the facility’s 49 residents had to be relocated on an emergency basis. A widespread Class II deficiency was also cited for the facility’s failure to maintain a safe and decent living environment and physical plant. The place was filthy throughout, including mattresses in the rooms, dirty floors & walls, bathrooms had mold, toilets were filled with feces and cigarette butts, blinds were broken, cockroaches were everywhere. The facility agreed to an immediate moratorium on admissions until corrections were made and approved by the Agency. On May 18, 2011, a complaint investigation was conducted. Four Class Il deficiencies were cited because the facility had failed to assure that its staff had received training in basic CPR and ' For each citation subsequently noted, the relevant section(s) of the Florida Statutes or Administrative Rule(s) violated, as was provided contemporaneously to the facility in writing, is incorporated herein by reference. SIN Headquarters 2727 Mahan Drive Tallahassee, FL 32308 http:/fahca.myflorida.com Area Office 525 Mirror Lake Drive, N. Sebring Building, #330H St. Peter wr 33701 EXHIBIT 4 First Aid, failed to assure proper training for its staff who worked with mental health residents, failed to assure sufficient staff to provide the necessary supervision, safety and care to the residents, and failed to obtain and keep the required medical examination reports for the residents. A patterned Class II deficiency was also cited for the facility’s failure to assure the required criminal background clearance for employees who were providing personal services. On June 28, 2011, a revisit to the complaint investigation was conducted and the facility had failed to correct the cited deficiencies. The Agency cited four uncorrected Class III deficiencies as it still lacked sufficient staff to provide proper care and supervision; it lacked sufficient qualified staff to care for the mental health residents; it failed to provide minimum staffing hours and it had still not required proper training in CPR and First Aid for the staff providing services. On July 22, 2011, a follow up survey was conducted in regard to the above and three Class III deficiencies were cited. The deficiencies included that the facility was failing to provide care and services appropriate to the needs of the residents, medications were being mishandled, and the physical plant was still filthy with evidence of pest and/or insect droppings. On September 15, 2011, a second revisit to the June 28 complaint investigation was conducted and two uncorrected Class III deficiencies were cited. The facility had still not required the proper training in CPR and First Aid for staff providing personal services and had failed to assure that one staff member trained in CPR and First Aid were available on all shifts. Corrections were not completed until October 27, 2010. On August 4, 2011, a monitoring visit was conducted with “operation spot check.” Twelve Class III deficiencies were cited, including: a) residents’ health assessments indicated that they were inappropriate for assisted living; b) some residents lacked the required health assessments; c) documentation was lacking to show that the residents were receiving proper activities; d) the facility had no elopement policy and had failed to conduct elopement drills as required; e) the facility was assisting a resident with medication when there was no signed physician order for same; f) the facility had failed to put in place the required Do Not Resuscitate (“DNR”) policy; g) staff members were lacking the required training in abuse, neglect, resident rights, emergency procedures and reporting adverse incidents; h) the facility administrator lacked the required nutrition and food service training; i) the facility staff lacked the required training for DNR; j) the facility had failed to obtain the required surety bond before acting as representative payee for residents; j) the facility had failed to maintain a safe living environment with regard to sanitation; and k) the facility had failed to assure that it had contracts with all of its residents. On November 17, 2011, another complaint survey was conducted along with a revisit. Two Class III deficiencies were cited. The medication observation record was found not to match the medication orders for residents on healthcare forms signed by their physicians. The residents had been receiving medications which were not ordered and had been missing medications that their physicians had ordered for them. The deficiencies appeared to be corrected on January 31, 2012, when the Agency conducted three complaint surveys. On March 5, 2012, a complaint survey was conducted in conjunction with a revisit survey and two Class III deficiencies were cited. The facility was failing to fill out the medication observation record appropriately and it was using an outdated form for the heaithcare assessments for the residents. Corrections had been made when the Agency returned on April 26, 2012. The Class I and Class II deficiencies along with an extraordinarily-large number of Class III deficiencies supports the Agency’s denial. EXPLANATION OF RIGHTS Pursuant to Section 120.569 Florida Statutes, you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes, your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code and must state the material facts you dispute. SEE ATTACHED ELECTION OF RIGHTS FORM Sincerely, Shh Z— Shaddrick A. Haston, Manager Assisted Living Unit Bureau of Long Term Care Services Copy to: Jan Mills, Office of the General Counsel STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION RE: SOUTHERN PARKS, INC. d/b/a CASE NO.: 2012005197 SOUTHERN OAKS ALF ELECTION OF RIGHTS’ This Election of Rights form is attached to a proposed action by the Agency for Health Care Administration (AHCA). The title may be Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. Your Election of Rights must be returned by mail or by fax within 21 days of the day you receive the attached Notice of Intent to Deny, Notice of Intent to Impose a Late Fee, Notice of Intent to Impose a Late Fine or Administrative Complaint. If your Election of Rights with your selected option is not received by AHCA within twenty- one (21) days from the date you received this notice of proposed action by AHCA, you will have given up your right to contest the Agency’s proposed action and a final order will be issued. (Please use this form unless you, your attorney or your representative prefer to reply according to Chapter120, Florida Statutes (2012) and Rule 28, Florida Administrative Code.) PLEASE RETURN YOUR ELECTION OF RIGHTS TO THIS ADDRESS: Agency for Health Care Administration Attention: Agency Clerk 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308. Phone: 850-412-3630 Fax: 850-921-0158. PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS: OPTION ONE (1) I admit to the allegations of facts and law contained in the Notice of Intent to Impose a Late Fine or Fee, or Administrative Complaint and I waive my right to object and to have a hearing. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the penalty, fine or action. OPTION TWO (2) I admit to the allegations of facts contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, but I wish to be heard at an informal proceeding (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine should be reduced. ' Here filed in response to the Agency’s Amended Notice of Intent to Deny OPTION THREE (3)___—s-.s dispute the allegations of fact contained in the Notice of Intent to Impose a Late Fee, the Notice of Intent to Impose a Late Fine, or Administrative Complaint, and I request a formal hearing (pursuant to Subsection 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed administrative action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Your name, address, and telephone number, and the name, address, and telephone number of your representative or lawyer, if any. 2. The file number of the proposed action. 3. A statement of when you received notice of the Agency’s proposed action. 4. A statement of all disputed issues of material fact. If there are none, you must state that there are none. Mediation under Section 120.573, Florida Statutes, may be available in this matter if the Agency agrees. License type: (ALF? nursing home? medical equipment? Other type?) Licensee Name: License number: Contact person: Name Title Address: Street and number City Zip Code Telephone No. Fax No. Email(optional) [hereby certify that I am duly authorized to submit this Notice of Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title: Deny/Late fee/fine/AC STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION SOUTHERN PARKS, INC. d/b/a SOUTHERN OAKS ALF, Petitioner, vs. DOAH Case No. 12-2274 AHCA Case No. 2012005197 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Respondent, the State of Florida, Agency for Health Care Administration (the “Agency”), through its undersigned representatives, and Petitioner, Southern Parks, Inc. d/b/a Southem Oaks ALF (“Petitioner”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, Petitioner is an assisted living facility licensed pursuant to Chapters 429, Part I and 408, Part II, Florida Statutes, and Chapter 58A-5, Florida Administrative Code; and WHEREAS, the Agency has jurisdiction by virtue of being the regulatory and licensing authority over Petitioner, pursuant to Chapters 429, Part I and 408, Part II, Florida Statutes; and WHEREAS, the Agency served Petitioner with a Notice of Intent to Deny dated May 10, 2012, and an Amended Notice of Intent to Deny dated August 8, 2012, notifying the Petitioner of the Agency’s intent to deny Petitioner’s renewal application for licensure to operate an assisted living facility in the State of Florida; and WHEREAS, Petitioner requested a formal administrative proceeding by selecting Option “3” on the Election of Rights form or by the filing of a Petition; and EXHIBIT 2 WHEREAS, the parties have negotiated and agreed that the best interest of all the parties will be served by a settlement of this proceeding; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals herein are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Upon full execution of this Agreement, Petitioner agrees to waive any and all appeals and proceedings to which it may be entitled including, but not limited to, an informal proceeding under § 120.57(2), Florida Statutes, a formal proceeding under § 120.57(1), Florida Statutes, appeals under § 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court of competent jurisdiction; and agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled provided that the form of the Final Order remains consistent with the recitals, “whereas” clauses, and terms of this Settlement Agreement; and, further that no agreement herein shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 4. Upon full execution of this Agreement, the parties stipulate and agree as follows: a. Petitioner shall contract with and maintain as a consultant Ms. Marlene Hunter, MS CHCRM, commencing September 1, 2012, and extending for two (2) years thereafter. Petitioner shall cause its consultant to review and complete a written quarterly report on a monthly basis regarding the facility’s operations and regulatory compliance. Said quarterly report shall include, but not be limited to: assessments of and actions taken related to medication administration and records, quality of care, risk management activities, staff training activities, and the adoption or amendment of facility policy and procedures. The quarterly report shall be maintained by Petitioner and provided to the Agency upon request. b. The provisions of subparagraph (a) above and the affirmative duties therein, shall continue in full force and effect throughout any renewal of the Petitioner’s license as necessary during the two (2) year period referenced herein. c. Petitioner places itself under a Voluntary Limitation on Admissions effective (retroactive to) August 17, 2012. The Voluntary Limitation on Admissions prohibits Petitioner from admitting any resident which would result in the Facility’s census exceeding forty (40) residents. d. A violation of the Voluntary Limitation on Admissions shall result in administrative sanctions by the Agency just as if for violation of a duly-entered Emergency Immediate Moratorium on Admissions. e. On or after February 17, 2013, the Petitioner may request the Agency’s authorization to discontinue its Voluntary Limitation on Admissions. Any such request shall be supported by documentation, including but not limited to, reports or records of Petitioner’s consultant referenced in subparagraph (a) above, which demonstrate actions undertaken by Petitioner to assure current and future compliance with the regulatory mandates. Upon receipt of any such request, the Agency may take such action as is appropriate and prudent, including but not limited to: a survey of the Facility, a request for further information or direct communication with Petitioner’s consultant. The Agency agrees to review any request in good faith, in a timely manner and not to unreasonably withhold consent. Said review shall be conducted as soon as possible and/or practical for the Agency. Should consent be denied, the Agency shall state in writing the reasons for 5. denial and will provide, if applicable, corrective measures to be taken by Petitioner to receive consent. Petitioner may seek further consent at any time. f. Upon adoption of this Agreement as a Final Order of the Agency, the Agency for Health Care Administration shall issue to Petitioner a renewal license for a facility capacity of sixty (60) residents, valid for a period of two calendar years commencing on May 5, 2012. g. On or after September 1, 2013, the Petitioner may apply to increase its licensed capacity at the Facility as provided by law. Any application to increase the licensed capacity of the Petitioner’s facility filed prior to September 1, 2013, shall be summarily denied based upon the terms of this Agreement and that the Petitioner waives any right to challenge said summarily denied application in any judicial or quasi-judicial forum. The Agency further agrees to review any application, received on or after September 1, 2013, to increase Petitioner’s licensed capacity in good faith and not to unreasonably deny the same other than as provided by law. Should Petitioner’s application be denied, the reasons for the denial shall be set forth in writing or as provided by law. h. Should Petitioner be cited for one Class I, one Class II, or three or more uncorrected Class III deficient practices at any survey over a two-year period from the date of the issuance of the renewal license (i.e., May 5, 2012), Petitioner stipulates that the deficient practice(s) will, if proven, constitute grounds for revocation of the Petitioner’s license (if provided for by law) in addition to additional Agency action pursuant to applicable provisions of law. Venue for any action brought to enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie in Circuit Court in Leon County, Florida. 6. By executing this Agreement, Petitioner denies the allegations set forth in the Notice of Intent to Deny and the Amended Notice of Intent to Deny, and the Agency asserts the validity of the allegations raised in these Notices of Intent to Deny. No agreement made herein shall preclude the Agency from imposing a penalty against Petitioner for any deficiency/ violation of statute or rule identified in a future survey of Petitioner, which constitutes a “repeat” or “uncorrected” deficiency from surveys identified in the administrative complaint. 7. No agreement made herein shall preclude the Agency ftom using the deficiencies from the surveys identified in the Notice of Intent to Deny in any decision regarding licensure of Petitioner, including, but not limited to, licensure for limited mental health, limited nursing services, extended congregate care, or a demonstrated pattern of deficient performance, as provided for by then existing law. The Agency is not precluded from using the subject events for any purpose within the jurisdiction of the Agency as provided for by law. Further, Petitioner acknowledges that this Agreement shall not preclude or estop any other federal, state, or local agency or office from pursuing any cause of action or taking any action, even if based on or arising from, in whole or in part, the facts raised in the administrative complaint. This agreement does not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, conditions, requirements or contract. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating the terms of this Agreement and closing the above-styled case. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement, by or on behalf of Petitioner or related facilities; provided and limited, however, that Petitioner’s rights to any costs, expenses or attorneys fees arising from or relating to enforcement of this Settlement Agreement shall survive. 12. This Agreement is binding upon all parties herein and those identified in paragraph eleven (11) of this Agreement. 13. In the event that Petitioner was a Medicaid provider at the subject time of the occurrences alleged in the complaint herein, this settlement does not prevent the Agency from secking Medicaid overpayments related to the subject issues or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. 14, Petitioner agrees that if any funds to be paid under this agreement to the Agency are not paid within thirty-one (31) days of entry of the Final Order in this matter, the Agency may deduct the amounts assessed against Petitioner in the Final Order, or any portion thereof, owed by Petitioner to the Agency from any present or future funds owed to Petitioner by the Agency, and that the Agency shall hold a lien against present and future funds owed to Petitioner by the Agency for said amounts until paid. 15. The undersigned have read and understand this Agreement and have the authority to bind their respective principals to it. Petitioner has the capacity to execute this Agreement. 16. This Agreement contains and incorporates the entire understandings and agreements of the parties. 17. This Agreement supersedes any prior oral or written agreements between the parties. 18. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 19. All parties agree that a facsimile signature suffices for an original signature. The following representatives hereby acknowledge that they are duly authorized to enter into this Agreement. epi Agency for Health Care Administration _2727 Mahan Drive Tallahassee, Florida 32308 DATED: _\ vi Stuart F. Williams General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5407 : ie urley, Seni ’ Florida Bar No. 0985775 r Lake Drive, Suite 330H St. Petersburg, Florida 33701 Of G (20) 32. DATED: Florida Bar No. 17987 Gus Suarez, Esq. Florida Bar No. 616613 Counsel for Southern Parks, Inc. ~ 1110 Brickell Avenue? Suite 407 ~~ Miami, Florida 33131-3135 paTep: /°/ 9 /20/2_ Name (printed): Sherry Qanleo Position: i Southern Parks, Inc. DATED: 9-/4-ja@
Findings Of Fact Charter is a wholly owned subsidiary of Charter Medical Corporation, (CMC), a hospital corporation established in 1969. CMC presently owns and operates health care facilities and health related organizations throughout the United States and abroad. Within its inventory are 27 psychiatric and addictive disease hospitals and 12 medical/surgical hospitals in addition to several other health related entities. Charter, by application filed on November 15, 1983 and subsequently amended, proposed to develop Charter Haven Hospital, (Charter Haven), a freestanding hospital containing 52 short term psychiatric and addictive disease beds, in Bradenton, Manatee County, Florida. The bed makeup will consist of 25 beds for adult and geriatric psychiatric patients, 16 beds for adolescent psychiatric and addictive disease patients, and 11 beds for adults with alcohol and drug-related problems. The geriatric patients will have the benefit of a specialized program designed specifically for the special problems of geriatric patients. Treatment will be open to all on a nondiscriminatory basis. Charter's application was denied in March, 1983, and denial was reaffirmed in June, 1983, on the basis that Petitioner failed to show need for the proposed facility in HRS District VI as defined by Rule 10-5.11(25), Florida Administrative Code. Intervenor, MMHC's application for a similar facility, filed in a later batching cycle, was also denied on the same basis. Petitioner's proposed facility would be located on a 9.34 acre site on Cortez Road in Bradenton, approximately 1 - 2 miles from the currently existing Blake Memorial Hospital and 4 - 5 miles from MMH. MMHC is located about 2 - 3 miles from the site which is readily available to staff, prospective patients, and physicians. Its reasonable proximity to the cited hospitals facilitates the providing of medical treatment to patients on a routine or emergency basis. The facility in question was designed for CMC within standardized design parameters developed specifically to create a facility in which psychiatric care could be provided in a non-institutional atmosphere. The building, proposed as a one-story, self-contained structure incorporating within it all treatment services and program elements, is to be constructed so as to be compatible with the Florida climate and environment and the complex will include facilities, both indoor and outdoor, to take advantage of the Florida life- style. All patient rooms will have outside windows. Considerable attention has been given in design to cost efficiency and professionally appropriate design criteria as well. The patient units, (adult, geriatric, and adolescent), can be utilized as either open or closed units by the use of doors adjacent to the main nursing station which, itself, is located in a centralized spot which affords nurses and staff members visual control of the major corridors in each unit. The facility is equipped to handle violent, disruptive, or involuntarily committed patients whose special needs can be handled by the use of seclusion rooms on the units. Areas to be utilized for such activities as classrooms, occupational therapy, and recreation are generally outside the nursing units and are designed to serve patients from more than one unit, on a scheduled basis. Some facilities, such as the gym, serve a multipurpose function. Design organization incorporates numerous cost and energy saving concepts. For example, each room will be individually temperature controlled; all corridors have rooms on both sides; and specialty areas with special design requirements are grouped together where possible. This facility, which CMC considers to be the state of the art in psychiatric hospital design, was designed with the intent to have it economically expandable to meet proposed prospective future needs. It is anticipated that its design will comply with the requirements of all standardizing and licensing agencies as they pertain to psychiatric hospital construction. MMH, a community based, not for profit general acute care hospital in Bradenton, operates an inpatient psychiatric care unit identified as the Mental Health Unit, (MHU). Approximately 22 percent of the MHU patients are Baker Act eligible under a contract with the MMHC which requires the MHU and MMH to accept Baker Act patients regardless of the fact that reimbursement funds may be insufficient or depleted. In fact, as of the hearing, insufficient funds were available to pay for the total care provided to Baker Act and indigent patients treated in the MHU. MMHC, also a nonprofit, community based organization, is a part of the community's public-funded mental health care system. It provides an extensive range of mental health care in the Bradenton community for the prevention and rehabilitation of mental, emotional, and substance abuse disorders. MMHC operates 13 separate programs including crisis intervention and counselling to approximately 5,500 outpatient and residential psychiatric and substance abuse patients per year regardless of the individual's ability to pay. The MMHC provides inpatient and substance abuse care at its Glenridge center which is licensed to operate crisis stabilization, short term residential care, and substance abuse units. The substance abuse unit operates both detoxification and 28-day treatment programs with the former having 9 beds and the latter 20. The short term residential and crisis stabilization unit has 8 inpatient beds. Staffing includes nursing personnel, counselors, psychiatric technicians, physicians, and support staff. The facility is housed in an inadequate 60 year old frame building which is to be replaced by a new facility funded by the Florida Legislature. It will contain 54 beds (12 substance abuse and 42 psychiatric) and is scheduled for opening in 1985. MMHC has applied for a CON to operate the new facility as a psychiatric hospital rather than as Glenridge is presently operated. MMHC is the Baker Act receiving facility for Manatee County and nearly 100 percent of its patients are either Baker Act eligible or indigent. While currently unable to handle disruptive patients and required to transfer them to MMH's MHU, the opening of the new facility, it hopes, will enable it to care for all Baker Act eligible, indigent, and disruptive patients in-house without referral to MMH. Charter's project is estimated to have a total cost of approximately $5,102,000. The individual factors which go into the total cost makeup are reasonable and supportable and include such items as development costs and feasibility studies, financing (interest) fees and loan origination fees; professional services (legal, accounting, architectural, and engineering); site survey and preparation; land acquisition; construction; and equipment. Because of its widespread and high-volume purchases, CMC is able to get reduced prices on much of its equipment and supplies. Further, its support services to the individual hospitals in the areas of consultations, planning and development, and personnel recruitment are designed to and generally do reduce costs. MMHC, on the other hand, contends that CMC's demonstrated willingness to pay higher salaries could tend to drive local personnel costs up. There is no demonstrable evidence, outside the professed intentions on the one hand and the speculation about results on the other to show what in fact, would happen. On the question of financial feasibility, during its first year of operation (projected August 1, 1985 - July 31, 1986) the 52 bed facility is expected to experience a 61 percent occupancy rate which would translate into 11,578 patient days. Bad debt in the first year, based on CMC's experience in opening other hospitals, is anticipated at 6 percent in the first year of operation and 5 percent in the second. This is in addition to "Charter Care," a policy within CMC which in the instant case, would provide 2 free beds (a $250,000.00 value) for indigent patients within the first year of the facility's operation. Indigent care and bad debts (including contractual adjustments) are expected to constitute 11 percent of the first year's total patient days. Since projected total revenue is based on a rate of $350.00 per patient day 1/ for a total of $4,052,00.00 (11,578 x $350.00), deductions for Charter Care, bad debts, and Baker Act patients result in a net revenue during the first year of $3,384,000.00. Medicaid is not available as a reimbursement mechanism for this facility. Further deductions for salary and benefits, figured at $19,500.00 per person, on CMC's historical and reasonable average, and supplies and expenses of $85.00 per patient day are reasonable in both categories. Projections for both income and expense are considered reasonable as is the profit margin projected for the first two years of operation. In determining where to locate its proposed facility in this area, Charter utilized two criteria: (1) the site must have accessibility to users, practitioners, and other facilities; and, (2) the site must be capable of being built on. The site selected appears to meet both criteria. In addition, however, Charter personnel also considered alternates to new construction (the conversion of an existing building, for example) but were unable to find anything suitable that was available. They talked, in advance, with representatives of MMH and MMHC with a view towards some sort of cooperative endeavor, but while the response was originally not negative, it became so after the proposal was brought to Intervenors' Boards. Notwithstanding that initial rejection, Charter indicates its desire to open and keep open lines of communication with these facilities and to, in fact, engage in some cooperative efforts where possible. In fact, it is, Charter contends, its policy and intent, consistent with its practice in all its facilities, to maintain an interface with the local community on community issues. It will enter into memoranda of understanding here, such as it has done in the past in other areas into which it has come, such as Ocala, Florida; Macon, Georgia; and Ft. Wayne, Indiana. Regarding Charter's policy on the provision of care to indigents, CMC has a two-part program. Part I deals with emergency care and states that anyone will be treated on an emergency basis and further disposition of that patient is made when it is medically safe to do so. In Part II, Charter Care, as mentioned above, provides for free care to some percentage of patients on a longer term basis. Here it is anticipated that two beds from the facility inventory of 52 beds will be available to indigent patients within the first year. Admittedly, some of the older Charter hospitals do not have a clearly defined pre-need Charter Care policy. In those cases, a decision is made regarding indigent patients on a case by case basis. Here, Charter Care will be provided to low income patients based on criteria still to be set. In these cases, the local hospital administrator will have the authority to make the determination as to whether a particular applicant meets that criteria. It was acknowledged, however, that this Charter Care policy could be terminated at any time. CMC indicates this hospital would be available for and would like to receive Baker Act patients. However, the Charter management realizes that MMHC is the area's primary Baker Act receiving facility. Nonetheless, if possible, they could be desirous of striking an agreement with MMHC to take those patients who cannot be served there. In this regard, Petitioner's representation of its proposed occupancy rate includes 5 percent Baker Act patients. Charter's representative believes, however, that there are sufficient other non-Baker Act patients available to ensure that a reduction in patient census would not occur as a result of the absence of this type of patient. In any case, Charter's admission policy is for this facility to take patients without discriminating against any group on any basis. Charter predicts occupancy rates which, if achieved, would meet the requirements of Respondent's rules. These are: 70 percent for adult and 60 percent for child psychiatric in the second year; 80 percent for adult and 70 percent for child psychiatric in the third year; and 70 percent and 80 percent for substance abuse in the second and third years respectively. In that regard, the 11,578 overall patient days in 1985 referred to above in the discussion of financial feasibility constitutes only a 64 percent occupancy rate, but it is expected that there will be 15,184 overall patient days in 1986 which would constitute an 80 percent rate and these projections appear reasonable when the data from the Office of Graduate Medical Education, (OGME), showing 20,000 patient days available to this facility, as testified to by Charter's health planning expert, is considered. In fact, the number of anticipated 1989 admissions projected by the Petitioner's and Intervenor's experts, of 1,105 and 1,114, respectively, are quite close. If, in fact, as represented by Intervenor's expert, freestanding psychiatric units have longer average patient stays than psychiatric units in general hospitals, Petitioner's expert's expectations of patient stays of 15 days at MMH's MHU and 30 days at Charter's proposed facility are not unreasonable. The majority of experts from both sides agreed that average stay lengths at the freestanding hospital could be expected to be: adults, 25-30 days; adolescents, 45 days; and substance abuse, 28-30 days. When these figures are correlated with the demonstrated occupancy rates at MMH's MHU, an overall community length of stay is shown to be 25 days. Applying those figures to the existing bed inventory plus CMC's proposed beds, it is not at all unreasonable to assume that both facilities would stay fully occupied. Another factor to be considered here is the size of the projected Baker Act patient load in the service area of Manatee County. Intervenors' expert contends that 42 percent of the entire county population would be Baker Act eligible based on family income. However, Petitioner introduced evidence to indicate the income figure was met in that county by only 11.6 percent of the population. Assuming, arguendo, that the real figure falls somewhere in between the two, this is still moderated by the fact that some Baker Act eligible patients who are employed, have health insurance which would enable that patient to receive treatment outside the Baker Act. CMC's proposed facility would be located in HRS Health District VI which encompasses Hillsborough and Manatee Counties as well as Hardee, Highlands, and Polk Counties. It defines its primary service area for the facility as Manatee County and the secondary service would take in the additional southern portion of Hillsborough County, an area more closely related in identity with the more relaxed Bradenton life style rather than the more urban Tampa life style. In addition, demographic makeup aligns the area more with Bradenton than with Tampa because of the large percentage of over 65 individuals there currently and predicted for the future. Population statistics developed by the University of Florida's Bureau of Economics and Business Research (BEBR) indicated a 1980 Manatee County population of 142,442 and a projected 1990 of 197,000 (medium) or 212,800 (high). Whichever figure is accepted, there is a definite substantial increase in population projected which does not take into account a seasonal influx of winter residents which can reasonably be expected. Considering also the potential increase in the percentage of younger people in the projected population, the projections are conservative and not at all unreasonable. Further, any accurate analysis must also consider the population projected for the southern portion of Hillsborough County which was previously identified as forming a part of the projected secondary area. No doubt the majority of these individuals, who by the BEBR projections will number between 48,500 and 52,000, will utilize facilities in the Bradenton area rather than going the greater distance through much heavier traffic to Tampa. At the present time, District VI has 562 licensed psychiatric beds with 94 additional CON approved. Of this total of 656 beds, only the 25 located at MMH's MHU are within the immediate or secondary service areas as defined by Petitioner. The majority of the remainder are in Tampa with a lesser number in the other counties. The District also currently has 72 licensed substance abuse beds with 22 additional CON approved. None of these beds are currently located in Manatee or lower Hillsborough Counties. Under the currently utilized HRS bed need methodology as set out in Rule 10-5.11(25) and (27), Florida Administrative Code, the fixed ratio for psychiatric inpatient bed need is .35 per 1,000 population, and for substance abuse, .06 per 1,000. Additional beds may not be approved unless existing inpatient adult psychiatric beds show an occupancy rate of 75 percent or greater (70 percent for adolescent beds), and substance abuse beds a rate of 80 percent or greater for the preceding 12 months district wide. The rule for proposed facilities requires new adult psychiatric and substance abuse facilities to meet a 70 percent and 80 percent occupancy rate for the second and third years of operation respectively, and 60 percent and 70 percent for adolescent beds for the same time frame. Review of occupancy rates for 1983 reflects a rate of approximately 65 percent combined psychiatric and substance abuse in District VI. The proposed rule which would have made Manatee County a sub-district of District VI was never adopted by HRS and has been withdrawn. Consequently, there is currently a substantial surplus of licensed and approved psychiatric and substance abuse beds over those computed as needed using the above rule. This surplus, to some degree or other, is acknowledged by all parties. Considering what other facilities are or will be available in the 5 year out time frame, as required, it can be seen that the MMH's MHU will still be in operation and providing inpatient facilities to some degree. Whether approved as a psychiatric hospital or not, MMHC will have inpatient treatment capability which will, to a substantial degree at least, satisfy the Baker Act population need. Another major factor is that provision of Rule 10-5.11(25) which dictates that short term inpatient psychiatric care should be available within a maximum travel time of 45 minutes, under average travel conditions, for 90 percent of the area population. There can be little doubt that those individuals in Manatee County, and, for the most part, the southernmost part of Hillsborough County contiguous to Manatee County, are not within 45 minutes normal driving time of the facilities in Tampa, or, for that matter, those in the other, less urban, portions of the District such as Polk, Highlands, and Hardee counties. Consequently, if patients from the immediate service area in question here can be considered to relate only to District VI facilities, there is little doubt that from the access standpoint, there is a definite need. Respondent contends there is an alternative, however, that there are three hospitals in Sarasota, well within the access criteria, which have 99 licensed and 37 approved psychiatric beds currently utilized at less than 80 percent occupancy. These Sarasota based beds, admittedly in a different District, are nonetheless at least partially available to patients from Bradenton, Manatee County, and southern Hillsborough County within 45 minutes normal driving time. However, the beds in Sarasota (District VIII) were predicated upon the population in that District which does not include the Manatee and southern Hillsborough County patients. Consequently, a tangible impact on these District VIII facilities can be expected from an influx of District VI patients and it is not reasonable to expect the current surplus to be available in the 1989 time frame since the District VIII population, is itself in a state of rapid growth. There are many valid reasons why health care professionals feel that hospitalization within the community, especially in the area of psychiatric and substance abuse treatment, is imperative. As to adolescents, this discipline requires the involvement of the whole family. Repeated lengthy drives on an every-two-day basis, even to Sarasota, especially during the high traffic volume winter months, is disruptive to the course of treatment. The inconvenience of the long trip quite often lessens an already minimal desire for involvement on the part of the family and without family involvement, the potential for recurrence of the illness is higher. In the case of geriatric patients, the problem is similar. Family involvement is of great importance and here, with older spouses, the difficulty of long distance travel in relatively unfamiliar areas heightens the risk and increases the stress on both the patient and the family. Family involvement plays an integral part in the treatment of addictive diseases as well. In fact, in the opinion of one expert in the field, the recovery rate for alcoholic patients is 20 percent higher when the family is involved. In light of the above, there can be little question that the availability of easy access to local treatment is of major importance. What then is currently available to satisfy the area's need for short term inpatient psychiatric care? The only locally available short-term psychiatric beds are in the Mental Health Unit at MMH. However, because of the shortage of beds, that facility treats, as a rule, only acute psychiatric patients. The average length of stay there, in the experience of one physician who has used it, is from 10 to 11 1/2 days. Many of this practitioner's patients who could have benefited from longer term treatment once the acute phase was over, were not able to get it there because of the shortage of beds. As of the date of the hearing, the 25 bed unit had 37 patients with the addition of beds to already occupied patient rooms and to the hallways. This overcrowding, to one extent or another, has existed for several years. Further, this unit, located within MMH, does not have space for and therefore does not offer such beneficial items as recreational programs or occupational and physical treatment programs that might be expected at a free standing psychiatric hospital. In addition, it cannot reasonably, and does not, separate patients by age. In the experience of at least the testifying physician, it is difficult to get patients admitted to this facility. The other local facility is the MMHC. This facility does not permit admissions by private physicians in the area who desire to continue to assist in the care of their patients. The current facility has only 8 beds in operation and does not have the capability to handle disruptive patients who, as stated above, must be transferred to the MHU at MMH. From all the above, it becomes very clear and it is so found that: Less costly, more efficient, or more appropriate alternatives to the proposed inpatient service, are not reasonably available except outside the health district involved or within, but far beyond a 45-minute driving time for the potential patient, in the immediate geographic area described here. Existing inpatient facilities within the area to be served, providing services similar to those proposed are overcrowded and currently overtaxed and unable to accommodate more patients. Alternatives to new construction have been considered and found to be unsatisfactory or as nonexistent. Patients are now and will continue to experience serious problems in obtaining inpatient care of the type proposed within a reasonable distance within the District. Use of facilities outside the District would be only an interim, stopgap measure.
Recommendation Based on the above Findings of Fact and Conclusions of Law, it is: RECOMMENDED THAT Petitioner, Charter Medical-Southeast, Inc., d/b/a Charter Haven Hospital, be DENIED a Certificate of Need to construct and operate a 52 bed short term psychiatric and substance abuse hospital in Manatee County, Florida. RECOMMENDED this 27th day of September, 1984, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1984.
Findings Of Fact Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of June, 1996.
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Alvin V. Walker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in the psychiatric wing of a local hospital with persons suffering from mental illness. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on August 8, 1990. On that date, petitioner was arrested for the offense of "prostitution," a misdemeanor under Chapter 796, Florida Statutes. The circumstances surrounding the incident were not discussed at final hearing. However, the Florida Department of Law Enforcement report stipulated into evidence indicates that on April 30, 1991, adjudication of guilt was withheld by the Duval County Court, and the arrest was sealed. Although the denial of petitioner's request was based solely on his 1990 arrest, at hearing petitioner candidly acknowledged that in 1992 he was invited into the automobile of an undercover police officer in Duval County and was asked what type of sexual things he liked to do. After answering the question, he was given a citation for an undisclosed offense and later pled nolo contendere to the charge. For this, he received one month's probation. Since that time, his record is unblemished. Shortly after the 1992 incident, petitioner began counseling sessions with a mental health counselor. He has continued his therapy since that time. The counselor described petitioner as a "very decent" person with "high morals," and someone who has shown improvement in terms of stability since he began his counseling sessions. From June 1993 until May 1995, petitioner was employed as a rehabilitation counselor with Renaissance Center, Inc. (Renaissance), a residential treatment facility for adults eighteen years of age and older with chronic mental illnesses. In June 1995, Renaissance was acquired by Mental Health Resources and petitioner continued doing the same type of work for the successor firm. He left there in January 1996 for employment with the St. Johns River Hospital as a mental health assistant in the facility's psychiatric unit. In April 1996, however, a background screening disclosed his 1990 arrest, and he was forced to resign pending the outcome of this proceeding. If petitioner's request is approved, the facility will rehire him. Petitioner's former employer at Renaissance established that petitioner was a very conscientious, responsible, and reliable employee who poses no threat to his clients. The employer considered petitioner to be of "good moral character." For the last four or five years, petitioner has been actively involved in the "Outreach" ministry of his church. That program involves providing spiritual support, services and counseling to prisoners in the Duval County Jail each Sunday with follow-up sessions during the week. Members of his church attested to his good moral character. Based on the testimony of witnesses Britt, Toto, Cross and DeWees, as corroborated by petitioner's own testimony, it is found that petitioner has presented sufficient evidence of rehabilitation since his 1990 arrest, he is of "good character," and he poses no threat to the safety or well-being of his clients. The request for an exemption should accordingly be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 10th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 200-X Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Pauline M. Ingraham-Drayton, Esquire 200 West Forsyth Street, Suite 80 Jacksonville, Florida 32202 Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083
The Issue The issue for determination is whether Petitioner, OPI, is entitled to CON #5544, for a 60-bed adult short-term psychiatric hospital in Orange County, Florida, HRS District VII.
Findings Of Fact The Parties OPI is a wholly-owned subsidiary of PIA Psychiatric Hospitals, Inc. (PIA), which is a subsidiary of National Medical Enterprises, Inc. (NME). PIA is one of the country's largest providers of psychiatric hospital services, with over 50 facilities throughout the United States. One of its existing facilities is Laurel Oaks Hospital in Orange County Florida. This is an 80-bed specialty hospital, licensed to provide short-term psychiatric and substance abuse services to children and adolescents. HRS is the state agency designated by law to implement and enforce the CON program in Florida pursuant to Sections 381.701-381.715, F.S. (1987). Intervenor, West Lake, is an 80-bed licensed psychiatric hospital in Longwood, Seminole County, Florida, in HRS District VII. West Lake's license is for 40 short-term beds, 30 long-term beds, and 10 substance abuse beds. West Lake treats children, adolescents and adults. Intervenor, Florida Hospital, is a licensed full-service acute care facility with over 1,000 beds in three locations: Orlando, Altamonte Springs and Apopka, Florida. It has 105 licensed short-term psychiatric beds serving adolescents and adults at its Orlando and Altamonte Springs campuses, in HRS District VII. The OPI Proposal OPI proposes to develop a 60-bed free standing short-term psychiatric hospital to treat adults (over 18 years of age). Although the hospital will be located in Orange County, no specific site has been selected. The total gross square footage for the facility is 45,000 square feet, with a total project cost of $7,324,000.00, to be funded by NME. The facility will have three wings with provisions for both locked and unlocked units; and will include, like other PIA hospitals, the usual contingent of bedrooms, classrooms, dining rooms, group and activity rooms, therapy rooms, seclusion rooms, a kitchen, gymnasium, pool, nurses station, laboratory, pharmacy, and general maintenance and housekeeping areas. OPI will treat a standard range of psychiatric disorders, but has not yet identified any specific programs. The anticipated average length of stay is 18 to 21 days. OPI has identified Orange County as its primary service area but, based on its experience with Laurel Oaks, it expects a significant number of patients will be drawn from Seminole County and from Osceola County. It will not attempt to draw patients from Brevard, the fourth county in District VII. Referrals will come from a variety of sources, including mental health professionals in the area and other mental health service-providers, as well as from direct patient inquiries. The patient will be admitted by a psychiatrist on the staff of the hospital and, after an initial evaluation and development of a treatment plan, will have the advantage of a wide range of treatment modalities delivered by a multi- discipline treatment team. OPI projects a gross charge of $433.00 per day in the unlocked unit and $478.00 per day in the locked unit, with a payor mix of 10% Medicare, 3% indigent, 5% private pay, 79% insurance, 2% CHAMPUS, and 1% PPO/HMO. OPI's pro forma statement relies on a 50% occupancy for year one and 75% for year two, with a projected loss of $1,173,000.00 and gain of $65,000.00 respectively. (OPI Exhibit 3, p. 40) Need for the project as addressed in the "fixed need pool" and "need methodology" rules. Rule 10-5.008(2)(a), F.A.C., requires HRS to publish a fixed need pool for each applicable planning horizon at least 15 days in advance of the letter of intent deadline in each batching cycle. In this case the fixed need pool was published in the February 12, 1988 issue of the Florida Administrative Weekly. In arriving at a net need of zero short term psychiatric beds in District VII, HRS, with one variation, applied the need methodology for short- term psychiatric beds described in Rule 10-5.011(1)(0)4., F.A.C. This is a two-step process involving the development of net numeric need based on a formula utilizing projected population data and approved and licensed beds, and the scrutiny of occupancy rates for existing beds. The parties in this case agree that under the first step of the process there is a net need for at least 60 short-term psychiatric beds in District VII for the January 1993 planning horizon. Those beds could be allocated, under the formula in Rule 10-5.011(1)(o)4.a. and b., F.A.C., to either a general or speciality hospital. The second step of the process requires a determination of whether minimum occupancy standards have been met pursuant to subparagraph e. of the rule. For adult short term psychiatric beds, the standard is at least 75% occupancy; for child and adolescent beds, the standard is 70%. Both are to be determined based on an average annual occupancy rate "... for the preceding 12 month period." This step presents a major issue in this case, as the occupancy rates arrived at by OPI substantially exceed those found by HRS and the Intervenors' planning experts. The phrase "preceding 12-month period" is not defined in the methodology rule; that is, the rule does not provide a specific event for the close of the 12-month period. For the purposes of arriving at the fixed need pool, HRS cannot consider that period to be the 12 months immediately preceding the application date, as the fixed need pool must be published in advance of that date. Because of various deadlines associated with the publication of the fixed need pool, in this case HRS had to complete its calculations for fixed need by February 4, 1988. At that time, data for the full calendar year 1987 was not available. HRS felt it necessary to use a standard baseline of data, uniform across all eleven districts, in order to ensure fair treatment of potential applicants state-wide who would be relying on the fixed need pool. For that reason, and because HRS also needed time to verify the data it obtained, HRS utilized the 12-month period of October 1986 through September 1987, for the February 1988 publication of the fixed need pool. The fixed need pool is not divided into age categories, so HRS' Office of Comprehensive Health Planning uses the lower of the two standards for short- term psychiatric beds, 70% occupancy. This resulted in a zero need in $he fixed need pool, because the occupancy rate for all existing short-term psychiatric beds in District VII from October 1986 through September 1987 was 67.7%. HRS' review of PIA's application and omissions response for purposes of the SAAR entitled a slightly different approach, utilizing data from calendar year 1987 to calculate the occupancy rate. This data reflected a district-wide rate of 72.71% and an Orange County rate of 68.66%, both below the 75% threshold for adult beds. When data from Laurel Oaks Hospital is excluded from the Orange County calculations, the rate is 56.2%. Even OPI's health planning expert, Carol Moore, concedes that it is appropriate to exclude all data and all statistics relating to child and adolescent beds. In District VII, however, the data is not reported in that manner. In District VII, two short-term psychiatric hospitals are dedicated solely to the treatment of children and adolescents: Laurel Oaks in Orange County, and CPC Palm Bay in Brevard County. In other facilities such as West Lake and Florida Hospital, which treat both adults and youths under the age of 18, HRS considers all beds as "available" to adults if they are not otherwise specifically identified. This is a nonrule policy, but one clearly articulated and justified by HRS' expert health planner, Reid Jaffe. OPI insists that the appropriate "12-month period" for calculation of occupancy rates is March, 1987 through February, 1988, the period immediately preceding the application deadline. This is a reasonable reading of the rule. Yet when data relating to facilities which treat only child and adolescent patients are excluded from the calculation, the resulting occupancy rates for the March 1987 through February 1988 period are 73.3% in District VII, and 57.4% in Orange County. When all existing short-term psychiatric beds are included for that same period, the 75% threshold is still not met; the occupancy rate in District VII is 74%, and in Orange County is 71.2%. The District I local health council, under contract with HRS, provides data for short-term psychiatric bed utilization in the district. Another available source of data is the Hospital Cost Containment Board (HCCB). Acute care general hospitals report psychiatric patient days to the HCCB by diagnostically related groups (DRGs), further subdivided into major diagnostic categories (MDCs). MDC 19 relates to mental diseases and disorders. Utilizing the data reported under MDC 19, OPI was able to satisfy the 75% occupancy threshold. Those calculations are found in OPI's exhibits #17 and 19. For the first nine months of 1987, the occupancy rate in District VII is found to be 78.2%, based on the MDC 19 data combined with the local health council data. When the HCCB data is annualized with a straight line projection the occupancy rate for calendar year 1987 is 80%. This use of HCCB data is inappropriate for several reasons. The data reflects patient days for psychiatric patients treated in non- psychiatric beds in licensed acute care hospitals. Those same beds are available for non-psychiatric patients and are not the beds referenced in Rule 10-5.011(1)(o)4.e, FAC as "existing adult short term inpatient psychiatric beds." Carol Moore for OPI counted only patient days, not the beds available to treat the patients. Her approach inflated occupancy, as counting only beds used by a patient results in a 100% occupancy. Consistency in utilizing MDC 19 data would require the consideration of all acute care beds available for psychiatric patients. The occupancy rate for acute care beds in District VII is 50%. This translates into approximately 2000 empty beds in District VII. Finally, the MDC 19 data is based on the primary discharge diagnosis, which may be skewed. The hospitals are given discretion in selecting which diagnosis is primary in patients with multiple diagnoses, and hospitals may be motivated to classify a patient to maximize third-party payment. Applying the fixed need pool and the methodology in Rule 10- 5.011(1)(a)4., Florida Administrative Code, the OPI project is not needed. Neither the fact that West Lake has a short term occupancy rate of over 100%, because it utilizes some licensed long term psychiatric beds for short-term patients, nor the fact that some beds in Orange County were "off-line" or in a start up phase during 1986-87, affects this finding. Had there been patient demand for the off-line beds, the two facilities, Florida Hospital and Orlando Regional Medical Center, could have placed the patient in another bed in the hospital and provided the same psychiatric services. The facilities in the start up phase are meant to be protected by the occupancy threshold, as it helps insure their beds are properly utilized before additional beds are approved. Consistency With the State and Local Health Plans The State Health Plan in effect when the project was reviewed is the 1985-1987 plan. It includes three goals. Goals 1. and 2., by their own terms, apply only through 1987. Goal 1. substantially reiterates the need methodology, including the 75% occupancy threshold. The threshold in the plan, however, requires consideration of both existing and approved beds, resulting in a lower occupancy level in District VII than if only existing beds were considered. Goal 2. urges the development of a continuum of high quality, cost effective private sector mental health substance abuse services. The objectives under this goal relate directly to policies regarding appropriate treatment settings and third party reimbursement practices, and are not relevant to this project. Goal 3. relates primarily to public mental health services and is not applicable to this project. The local health plan applicable to review of OPI's project is the 1985 local health plan for District VII. Part 3 of the plan addresses policies and priorities for psychiatric and substance abuse services. OPI's project is partially consistent with the relevant policies in that plan. Policies 3 and 4 adopt the need methodology of Rule 10-5.011(1)(o), Florida Administrative Code. As discussed above, those policies are not satisfied by the project. Policy 6 addresses certain priorities to be given for approval of applicants who are especially committed to serving underserved groups, who reallocate existing underutilized beds, who propose geriatric service, and who propose long-term services for children and adolescents. With its projected 3% indigent and 10% medicare classification, OPI's commitment to the underserved is minimal. It has stated an intent to provide services to geriatric patients, but has not defined any program for those services. OPI has stated its intent to comply with policies 7, 8, 9 and 10, relating to availability of emergency services, accreditation by the Joint Commission on Accreditation of Hospitals (JCAH), consistency with the state and local mental health plans, and coordination of services with other mental health services providers. Like and Existing Services Sections 381.705(1)(b), and (2)(b) and (d), F.S. require consideration of the availability, quality of care, efficiency, appropriateness, accessibility, extent of utilization and adequacy of like and existing health care services in the service district. In Orange County there are no other facilities providing short term psychiatric services to adults only. There are, however, three facilities providing those services to adults, as well as children and adolescents. In 1987, and in the twelve months preceding the date of application, none of those facilities had an occupancy rate over 61%. District-wide, there were eight such facilities, only two of which had an occupancy rate of over 75%, both in Seminole County. One of those, Florida Hospital, in Altamonte Springs, dropped to 73.5% in the more recent 12-month period prior to the application date. The existing facilities are plainly underutilized. No credible evidence was presented to show that these existing facilities are inappropriate, inefficient or inaccessible, or that they do not provide good quality care. Financial Feasibility OPI's pro forma is based in part on its projected occupancy rates of 50% the first year, and 75% the second year. While the Laurel Oaks facility has enjoyed a favorable occupancy rate (over 90%), that facility serves only children and adolescents. OPI's proposed adult facility has no unique attributes which would suggest a substantially greater success in filing beds than the other like facilities in Orange County already discussed above. OPI's pro forma was presented by its health care finance expert, Gene Newell, who reviewed, but did not prepare the document. His opinion that the project will be financially feasible is based on extensive experience with PIA facilities, including four of PIA's psychiatric facilities in Florida. The expenses and patient days (including average length of stay) are based on PIA's experience in its other facilities. That experience has been a financial success, and nothing in the OPI project, save perhaps its location in an area where similar facilities are underutilized, would distinguish it from its corporate sisters. The Costs and Methods of Construction The intervenors call it a "generic" design; OPI calls it a prototype. In either case, the design for this project is essentially the same as other PIA facilities, including Medfield, in Clearwater, a facility whose design and construction was previously approved by HRS. Although specific programs have not been developed, the design is flexible enough to accommodate a variety of programs which may be selected later when the administrator is hired. There were two errors in the application's listing of furniture and equipment according to Thomas Ebejer, Senior Vice-President of design and construction for PIA. Those errors, the inclusion of medical office building furniture and a computational error in figuring the cost of day treatment furniture, result in an overstatement of costs of approximately $57,000.00. On the other hand, some computer equipment and a biofeedback machine were not included in the costs. The net result of those errors does not materially affect the reasonableness of the total construction and equipment cost. Availability of Health Manpower As planned, the OPI project will be appropriately staffed, and it is likely that with aggressive recruitment techniques, including competitive salaries, and retention bonuses, the necessary staff will be hired. However, as conceded by OPI witnesses, there is a shortage of nurses in District VII. PIA Administrator Richard Warden blames the shortage on the proliferation of nursing agencies, and argues that if the agencies were controlled, the nursing shortage could be alleviated. No evidence was presented that any controls are likely. Qualified social workers and counselors are also difficult to recruit in District VII. When Laurel Oaks was licensed, other facilities lost staff. West Lake presently provides funding to Seminole Community College to expand the size of their nursing classes, as one step to alleviate the staff shortage. Impact on the Cost of Services and the Effect of Competition Competition for limited manpower resources and its resulting increase in the cost of services and degradation of quality is but one aspect of the impact of a new project's arrival in an area already adequately served. Nothing in OPI's application reflects an intent to provide some unique or innovative service. The programs it is considering are being offered already in facilities such as West Lake and Florida Hospital. Existing providers are having problems filling their beds. OPI's expert planner claims that its patient days will be derived primarily from growth in the marketplace but admits that there will still be an impact on existing providers. OPI will tap into other facilities' referral sources and will compete for patient referrals. Population statistics do not support the opinion that growth will fill the beds. Growth in the geographical area is slowing, particularly in Orange County. Adult psychiatric services average lengths of stay are decreasing in all of District VII, except in Osceola County, where there is a high Medicare utilization of beds. Between 1984 and 1987, in Orange County, the adult use rate, defined by the local health council as days per thousand population over the age of 15, dropped from 62.55 to 49.89. The trend is toward shorter lengths of stay and more use of outpatient services. This is influenced in part by third-party payment practices. This leaves existing providers as the primary readily available source of patients. OPI candidly admits that it intends to continue its practice of marketing sources of referrals that will provide "better patients". Its limited commitment to indigent care means that the more lucrative patients will be drawn from the existing providers. Existing providers will be pressured to increase their charges or decrease the quality of care. Competition from OPI in this case will degrade, rather than enhance, quality assurance and cost-effectiveness. Other Criteria and Summary of Findings OPI's ability to provide quality of care and its record of such in other facilities was never seriously questioned in this proceeding. The parties have stipulated that a portion of the statutory criteria in Section 381.705(1)(h), F.S., related to the availability of capital and operating funds, and section 381.705(2)(e), F.S. are met or are inapplicable, but other statutory criteria are also either irrelevant or deemed immaterial. These include criteria related to economies from the operation of joint or shared resources, the need for research or educational services, special needs of health maintenance organizations, and others. Despite a showing of numeric need by application of the rule methodology, OPI's project does not meet the occupancy standard in the rule. It is close, if one accepts OPI's contention that data for the 12 month period immediately prior to application must be considered, even though that data is not available at the time the fixed need pool is published. "Close" is not enough in a health planning process that provides for changing needs with frequent periodic batching cycles. If the occupancy rate is close this cycle, it may increase enough to reflect need in the next cycle, or it may decrease enough to unquestionably rule out need. Existing facilities have the ability and capacity to meet the demand for adult short term psychiatric services in the horizon year. An infusion of 60 additional beds in that market will negatively affect the cost of health care either by causing existing facilities to raise their rates or the new facility to raise its rates in order to maintain financial feasibility. OPI's proposed project is not needed.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Petitioner's application for CON 5544, be denied. DONE and RECOMMENDED this 22nd day of May, 1989, in Tallahassee, Florida. MARY CLARK 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 22nd day of May, 1989. APPENDIX The following constitute specific rulings on the parties' proposed findings of fact. Proposed Findings by OPI Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. 5-6. Included in background statement. 7. Adopted in paragraph 5 and 6. 8-9. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in substance in paragraph 7. 14-17. Adopted in summary in paragraph 9. 18-19. Adopted in paragraph 10. Adopted in paragraph 11. Rejected as unnecessary. Rejected as inconsistent with the weight of evidence. 23-24. Rejected as unnecessary 25-26. Adopted in substance in paragraph 13. 27-29. Rejected as unnecessary. Adopted in paragraph 18 and paragraph 19. Adopted in paragraph 17, except that the conclusion that the time-period is inappropriate is rejected. Rejected as inconsistent with reason. If the occupancy over 100% should be considered, then all of West Lakes' long term beds should be included in the calculation as those are available for use under West Lake's practice. Rejected as inconsistent with the methodology rule and with reason. Again, the available beds need to be part of the calculation if the patient days are included. Adopted in part in paragraph 22. 35-67. Rejected as unnecessary, argumentative, the testimony of Mark Richardson was not credited as dispositive of the issue of need. 68. Rejected as unnecessary, though immaterial and cumulative. 77. 78. Adopted in summary in paragraph 45. 80. 81-83. Rejected as unnecessary. 84. Rejected as contrary to the weight of evidence. 85-89. Rejected as unnecessary or cumulative. 90. Rejected as contrary to the weight of evidence. The testimony regarding difficulties in making referrals to West Lake and Florida Hospital was not materially credited. 91-96. Rejected as unnecessary. Quality of care was not at issue. 97-102. Rejected as cumulative and unnecessary. 103-104. Adopted in summary in paragraph 46. Rejected as unnecessary. Adopted in paragraph 38. 107-110. Rejected as unnecessary. 111. Adopted. 111-120. Adopted in summary in paragraph 34, except that OPI failed to demonstrate how it will achieve the occupancy rates it projects when other existing facilities in the area are substantially below those rates. 121-122. Addressed in paragraph 46. 123. Rejected a unnecessary. 124-125. The conclusion that competition will be a positive factor is rejected as contrary to the evidence. 126-136. Adopted in summary in paragraphs 25 and 37. 137-142. Addressed in paragraph 28. OPI's commitment to the underserved is minimal. 143-154. Rejected as unnecessary or argument on the evidence rather than findings of fact. Proposed Findings by HRS Addressed in Background statement. Adopted in paragraph 1. Adopted in paragraph 5. Adopted in paragraph 27. Adopted in summary in paragraph 28. Rejected as immaterial. 7-9. Adopted in summary in paragraph 27 and paragraph 28. Adopted in paragraph 26. Adopted in paragraph 13 and paragraph 14. Adopted in paragraph 17. Rejected as unnecessary. Adopted in paragraph 17. 15-16. Rejected as argument, although the methodology is substantially adopted. 17. Adopted in paragraph 19 and paragraph 43. 18-20. Rejected as unnecessary. Rejected as argument. Adopted with qualification in paragraph 32. Rejected as argument. Rejected as immaterial. Adopted in paragraph 28. Rejected as unnecessary. Proposed Findings By West Lake Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 8. Adopted in paragraph 7. Adopted in paragraph 6. Adopted in paragraph 12 and paragraph 13. Adopted in paragraph 13. 11-13. Rejected as unnecessary. Adopted in paragraph 14. Adopted in paragraph 18. Adopted in paragraph 22. 17-18. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in paragraph 22. Adopted in paragraph 23. Adopted in paragraph 20. Adopted in paragraph 21. Adopted in paragraph 22. Rejected as unnecessary. 27-28. Adopted in paragraph 23. 29-33. Adopted in paragraph 24. 34. Rejected as unnecessary. 35-37. Adopted in paragraph 25. 38. Rejected as unnecessary. 39-40. Adopted in substance in paragraph 26. 41. Adopted in part in paragraph 27. 42-48. Adopted in part in paragraph 28. Adopted in paragraph 29. Adopted in paragraph 30 and paragraph 31. 51-56. Rejected as unnecessary. 57. Adopted in paragraph 45. 58-68. Rejected as unnecessary. 69-70. Rejected as irrelevant. 71. Rejected as unnecessary. 72-73. Adopted in substance in paragraph 39. Adopted in substance in paragraph 41. Addressed before, in rulings on Florida Hospital's proposed findings. 76-77. Rejected as immaterial. Rejected as unnecessary. Rejected as a statement of testimony. Rejected as unnecessary. Adopted in substance in paragraph 42. 82-83. Rejected as a statement of testimony. Adopted in part in paragraph 38. -Adopted in part in paragraph 40. 86-97. Rejected as unnecessary. Adopted in paragraph 43. Adopted in paragraph 44. Rejected as unnecessary. 101-104. Rejected as unnecessary or contrary to the evidence. 105-111. Rejected as cumulative. 112-126. Rejected as unnecessary. Proposed Findings By Florida Hospital 1-11. Rejected as unnecessary. The parties agree there is numeric need. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 19. 15-21. Rejected as unnecessary. 22. Adopted in paragraph 43. 23-24. Adopted in paragraph 42. 25-28. Adopted in paragraph 43. 29-30. Rejected as unnecessary. 31. Adopted in paragraph 23. 32-33. Adopted in substance in paragraph 24. 34. Rejected as cumulative. 35-38. Rejected as unnecessary. 39-42. Rejected as contrary to the evidence, except for the reservations regarding meeting occupancy goals and that effect on feasibility. 43. Adopted in paragraph 35. 44-45. Rejected as argument. Adopted in paragraph 39. Adopted in part in paragraph 40. Adopted in paragraph 26 and paragraph 27. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 28. Adopted in summary in paragraph 4. Adopted in summary in paragraph 3. 54-55. Adopted in paragraph 42. Adopted In paragraph 43. Adopted in paragraph 44. 59-67. Rejected as cumulative and unnecessary. 68-69. Adopted in paragraph 47. 70-71. Adopted in substance in paragraph 48. 72-79. Rejected as cumulative. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Michael J. Glazer, Esquire Ausley, McMullen, McGehee, Carothers & Proctor 227 South Gadsden Street Tallahassee, FL 32301 John T. Brennan, Jr., Esquire Bonner & O'Connell 900 Seventeenth Street, Northwest Washington, D.C. 20006 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, FL 32308 Chris Haughee, Esquire Catherine Peek McEwen, Esquire Moffitt, Hart & Herron, P.A. 216 south Monroe Street, Suite 300 Tallahassee, FL 32301 Steve Boone, Esquire Boone, Boone, Klingbeil, Boone & Roberts 1001 Avenida Del Circo Venice, FL 335955
