The Issue At issue herein is whether or not the Petitioner is entitled to continue receiving vocational rehabilitation benefits.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of the parties and the entire record compiled herein, the following relevant facts are found. Ms. Virginia Ryan, Petitioner, has been a client in the Vocational Rehabilitation program since September of 1978. Pursuant to an administrative review by her counselor and specialist assigned to the Vocational Rehabilitation program, Petitioner was advised on February 1, 1980, that she was being terminated from the Vocational Rehabilitation program for the following reasons: Petitioner's case had been active since September, 1978, without accomplishment vocationally. Vocational Rehabilitation services had expended approximately Two Thousand ($2,000.00) Dollars to rehabilitate Petitioner, with no visible results from such expenditures. Work evaluation reports completed for Petitioner at Jackson Memorial Hospital Rehabilitation Center indicate that Petitioner was not trainable or employable. Petitioner's participation in two vocational training sessions were without success. Counselors for vocational rehabilitative services who had serviced and counseled Petitioner concluded, based on the foregoing, that further expenditure of Federal funds would not result in any gainful employment for Petitioner. Petitioner charges that her counselor, Mrs. Harriet B. Weaver, was unprofessional and had sabotaged her training program at Charron Williams Vocational Center; had practiced reverse discrimination with respect to her counseling and efforts to rehabilitate her vocationally; was incompetent to carry out any program to rehabilitate her and had sabotaged her efforts to obtain services through a dental program. Harriet Weaver, a Vocational Rehabilitation counselor since approximately January of 1976, was assigned to service Petitioner during approximately April of 1979. Mrs. Weaver examined Petitioner's medical history file and accepted her as an orthopedic disability client. (Respondent's Composite Exhibit 1.) During the period April, 1979, through February, 1980, Mrs. Weaver assigned Petitioner to approximately four dentists and enrolled her in the rehabilitation program at Charron Williams Vocational School. During this period, Mrs. Weaver also obligated the Vocational Rehabilitation program to defray lodging expenses for Petitioner at the Cadillac Hotel in the amount of approximately Two Hundred ($200.00) Dollars. The evidence also reveals that the program expended approximately Eight Hundred Seventy-seven ($877.00) Dollars to Petitioner in taxi fares, of which approximately 70 percent represented unauthorized fares for taxicab services. Evidence also reveals that Petitioner has repeatedly appeared late for scheduled appointments with dentists, doctors, therapists, and for that matter, she arrived at the subject hearing approximately thirty (30) minutes late, with no explanation for her lateness. Doctors Wainger and Rudman determined that Petitioner was not employable and would not benefit from vocational rehabilitative training so long as her present attitude continued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's termination of Petitioner from the Vocational Rehabilitation program be UPHELD. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st Day of July, 1980. COPIES FURNISHED: Ms. Virginia Ryan 685 Northeast 64th Street Miami, Florida 33138 Morton Lightner, Esquire District 11 Legal Counsel Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Room 1040 Miami, Florida 33128 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that: A physical or mental disability is present; A substantial handicap to employment exists; and Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment. Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment. Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination. Coyle's records do not reflect that Coyle had applied for SSI and food stamps. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983.
The Issue The issue in this case is whether the allegations of the Administrative Complaints are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this matter, Respondent Robert S. Colen was a licensed mental health counselor, holding Florida license MH 0001546. The Respondent’s business address is 800 Belcher Road, North, Suite 1, Clearwater, Florida 34625. The Respondent was trained in a form of mental health counseling identified as “Gestalt” or “humanistic” therapy. Such therapy includes physical, non-sexual, touching, such as hugs. There is no credible evidence that therapeutic touching within a counseling relationship is inappropriate. A number of the Respondent’s clients testified that he almost always hugged them at the end of the counseling session. The only witness who testified that the Respondent did not hug was a male patient who indicated that he was not inclined to permit the Respondent to hug him. Other than the three patients identified herein, none of the witnesses regarded the hugging as sexual, and none seemed at all offended by the physical contact. Patient M. C. Patient M. C. was referred to the Respondent by Dr. Michael Gemino, the patient’s psychiatrist. At the time of the referral, M. C. was diagnosed with bipolar disorder, alcohol abuse, and passive aggressive disorder. She was referred to the Respondent for counseling related to alcohol addiction and co-dependency issues. During the course of therapy, the Respondent began to hug M. C. as he did many of his other patients. At some point during the therapy, a discussion of different types of “love” occurred. Based on that discussion, M. C. apparently became convinced that the Respondent was in love with her and she with him. At some point during the counseling, the Respondent and M. C. began to experience some type of emotional involvement which exceeded the typical counselor-client situation. There were extended periods when the Respondent held M. C. in his arms as she recounted painful experiences she had suffered. M. C. asserts that the Respondent told her that he loved her and that beginning in February 1994, she engaged in sexual activity with the Respondent. She asserts that the two would lie on pillows on the floor of his office, that the Respondent would touch her unclothed genital area with his hands and mouth, and that she would perform fellatio on the Respondent. In about July 1994, M. C. reported the alleged sexual activity to Dr. Gemino, who referred her to Kerry Kushmick, an unlicensed individual apparently working with Dr. Gemino. Mr. Kushmick met with the Respondent and M. C. to discuss the matter. Although M. C. repeated her allegations, the Respondent denied any sexual contact, but acknowledged that the two were in a "psychological cocoon,” that he was "in over his head," that he should have terminated therapy earlier, and that there were some “boundary” issues which needed resolution. The evidence fails to establish that the Respondent engaged in sexual activity with M. C. The recollection of M. C. as to times and circumstances under which the sexual activity occurred lacks credibility. The Respondent’s office was located immediately adjacent to a public waiting area which served a number of professional offices. The receptionist’s desk in the waiting area was located next to the Respondent’s office. The walls in the office suite were poorly insulated and sound traveled from the offices into the waiting area; however the receptionist testified that she heard nothing indicating any sexual activity ever took place in the Respondent’s office. She also testified that the door to the Respondent’s office closed improperly and would not lock. The evidence establishes that the Respondent did not maintain an appropriate therapeutic relationship with M. C. The Respondent did not recognize that transference and counter- transference were occurring, and did not timely seek assistance to resolve the situation. The Respondent's failure to recognize the developing situation with M. C. was detrimental to her mental condition and constitutes a failure to meet minimum standards of performance as his professional activity. At some point after M. C. spoke to Dr. Gemino, he provided to her the names of other patients whom he had referred to the Respondent for counseling. M. C. met separately with J. M. and R. P. They discussed the interactions with the Respondent. The former patients continued to maintain contact for a period of time after the initial meeting. At the hearing, J. M. and R. P. expressed concern regarding the emotional condition of M. C. Patient J. M. In about October 1993, J. M. was referred to the Respondent by Dr. Gemino, the patient’s psychiatrist. At the time of the referral, J. M. was diagnosed with bipolar disorder. She was referred to the Respondent for marital therapy, after having been involved in sexual relations outside her marriage. J. M. attended initial counseling session with her husband. She attended subsequent sessions without her husband. She also participated in group therapy at the Respondent’s office. J. M. dressed in a “seductive” manner for counseling sessions, frequently wearing very short shorts. At one time, after a group therapy session, the Respondent received a complaint from another patient regarding J. M.’s attire during counseling, stating that she was sitting on a pillow on the floor, was not wearing underwear, and was exposing herself. J. M. testified that she did not wear underwear during the group therapy and further acknowledged that she was not wearing underwear at the time of her testimony. J. M. asserts that during the initial counseling session, while her husband was out of the room, the Respondent told her she was attractive. J. M. asserts that during subsequent session, which she attended alone, the Respondent would lie on the pillows with her, touch her, tell her she was beautiful and call her his “soul mate.” She asserts that the Respondent was always touching her and kissing her. The evidence fails to support the assertions J. M. asserts that the Respondent purchased gifts for her. The Respondent acknowledged that he may have purchased some type of tape for her, but there were not multiple gifts. J. M. asserts that he did not charge for all sessions. The Respondent acknowledged that he did not charge for all her sessions and said that is frequently the case when a patient is undergoing financial difficulty. J. M. testified that the Respondent told her she should take a test for the AIDS virus. She believed that the Respondent made the suggestion for the purpose of determining her health status prior to engaging in sexual relations with her. The Respondent testified that he made the suggestion based on her sexual activity outside her marriage and the fact that she was referred to him for marital counseling. Despite having been interviewed by an investigator for the Department, J. M. testified for the first time at the hearing that the Respondent told her he was going to “lick her pussy like you’ve never had it before.” There is no credible evidence that the Respondent made the statement. J. M. terminated her therapy with the Respondent because he indicated she needed to pay him some of the money she owed from the counseling. The evidence fails to establish that the Respondent acted inappropriately in his interaction with J. M. Patient R. P. The Respondent provided therapeutic counseling to R. P. from January to March of 1988. At the time of the 1988 counseling, R. P. was being treated for an inability to accept affection. From August to October 1991, the Respondent engaged in a second round of therapy with R. P. She was depressed, lacked a social support system, and was dependent on prescription pain medication. She was also involved in a difficult relationship with her mother. There were only four sessions during the 1991 round of therapy. During the second round of therapy, the Respondent encouraged her to bring her mother to counseling (her mother declined.) The Respondent hugged and touched R. P during the sessions, told her she was special and a valuable person. R. P. had expressed concern about being able to be physically affectionate with a man. Part of the Respondent’s plan of therapy was physically hugging or holding R. P. in a manner intended to permit her to become comfortable with such attention in a non-threatening environment. Some of the hugs lasted for up to 15 minutes. Depending on the mental status of the patient, a 15 minute hug, while unusual, is not necessarily inappropriate. R. P. asserts that the Respondent told her she was his “soul mate” and discussed sexual relations with her. She asserts that he told her he had feelings about her which he had not experienced with other patients. The evidence fails to support the assertion. After R. P. stopped attending the sessions, she received two letters from the Respondent, the second of which made her feel “threatened.” He also called R. P. several times. R. P. believed he was trying to make her feel guilty. The Respondent asserts that he was concerned about her discontinuation of therapy and the fact that she owed him money. The evidence fails to establish that the Respondent acted inappropriately in his interaction with R. P.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a Final Order imposing a fine of $1,000 on, and issuing a public reprimand to, Robert S. Colen. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998. COPIES FURNISHED: William C. Childers, Esquire Thomas Wright, Esquire Anne Cox, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32317-4229 Louis Kwall, Esquire Kwall & Showers, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 Lucy C. Gee, Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner, Jeffrey Goldpaint, is a disabled individual as determined by the Social Security Administration and has received funds through the Social Security system for his disability, administered by the Respondent's vocational rehabilitation program. His disability is of a psychiatric nature. During and before 1976, he was enrolled in a journalism curriculum, funding for which was provided by the Respondent. In 1976, the Petitioner elected to withdraw from the program, the reason for which withdrawal is not clear, although the Petitioner remonstrated that it was unavoidable, due to illness. In any event, after negotiation with the Respondent, the Petitioner obtained additional funding from the Respondent, as administrator of the federal program for vocational rehabilitation contained in Title 34, Code of Federal Regulations, Section 361, for additional rehabilitation training. Pursuant to this second rehabilitation effort, the Petitioner successfully completed training to be a real estate salesman, passed his examination and was licensed. As a part of that rehabilitation effort, the Respondent made available to the Petitioner employment placement assistance in order to help ensure that the petitioner would obtain employment in the real estate sales field. The Petitioner refused to respond and participate in the Respondent's job placement efforts for him and ultimately sought additional funding for a third course of study from the Respondent in the area of computer science, the denial of which instigated this proceeding. The Petitioner's motivation in seeking entitlement to the subject course of study in computer science lies in his belief that, because be is disabled and because of the moribund state of the real estate market in his geographical area, that he has a right to additional vocational training. The Respondent established, however, that the Petitioner is now employable as a real estate salesman. There is a substantial likelihood of his placement in an employment position in -that field of endeavor. It was not established that his disability is a hindrance or handicap to his employability in view of his past successfully completed vocational rehabilitation training and education. The Petitioner's voluntary decision to ignore the employment placement assistance afforded him by the Respondent was the direct and proximate cause of his lack of employment in his previously chosen career field at the time of the hearing. His request to be paid for enrollment in a course of study in computer science was motivated by a subjective and personal change in his career goals and not because his disability posed any handicap to his employability as a real estate salesman. It was established by the Respondent that the Petitioner could be successfully employed in a real estate career, especially had he availed himself of the employment placement assistance offered by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the petition of Jeffrey Goldpaint be DENIED. DONE and ENTERED this 8th day of April, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1983. COPIES FURNISHED: Jeffrey Goldpaint 1152 18th Ave., North Apartment #7 Lake Worth, Florida 33460 K. C Collette, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue The ultimate issue in this case is whether Janna Preissig is eligible for vocational rehabilitation benefits for which she has applied on three separate occasions. 1/ Ms. Preissig contends that she is eligible. The Department of Health and Rehabilitative Services (hereinafter "the Department" or "DHRS") contends that Ms. Preissig is ineligible on the grounds that vocational rehabilitation services may not reasonably be expected to render Ms. Preissig fit to engage in a gainful occupation.
Findings Of Fact Based on the stipulations of the parties, the exhibits admitted into evidence, and the testimony of the witnesses at hearing, I make the following finds of fact: The Petitioner, Ms. Janna Preissig, most recently applied for vocational rehabilitation services on January 17, 1984. Ms. Preissig applied for such benefits twice before, once in 1982 and once in 1983. Both of her prior applications were denied. Ms. Preissig is a 32-year-old, single, white, female with a long history of unsuccessful efforts at employment corresponding to a long history of mental problems. Her only period of regular employment was a three and one-half year period during which she was in the U.S. Army working as a supply clerk. She has obtained numerous other jobs from time to time, but is always fired after a short period of time due to her mental condition. Since childhood Ms. Preissig has suffered from severe mental problems. As early as age thirteen she was hospitalized for psychiatric problems for approximately one year. During the hospitalization she was subjected to at least 20 electrical shock treatments. She believes that some of her current problems are the result of the electrical shock treatments. Ms. Preissig has a long history of both inpatient and outpatient treatment for psychiatric disorders since her initial hospitalization at age thirteen. In addition to her difficulties in retaining employment, Ms. Preissig also has difficulties with social adjustment. She has a long history of vagrancy. Ms. Preissig has a long history of being uncooperative with treatment plans. She has been discharged from inpatient treatment because of disruptive conduct which interfered with the treatment of other patients. She has been suspended from outpatient treatment programs for breaking rules. She has a poor attendance record at outpatient treatment programs. She also has a negative attitude towards the treatment programs she has been exposed to and does not believe she is likely to receive any benefit from the treatment programs which have been recommended for her. Due to the nature of Ms. Preissig's mental condition and her uncooperative attitude towards the treatment which has been recommended for her and made available to her, the prognosis for significant improvement in her present condition is poor. Her present condition was summarized as follows by Dr. Michael C. Berg: She is at present, and previously, quite unable to hold gainful employment because of the presence of severe mental impairment, paranoia, which is long-standing and with a poor prognosis. Not only is she unemployable, but she lacks the basic living and social skills necessary for an independent life without some supervision, structure, and assistance with accommodation. This condition will not, in my opinion, significantly improve over the next 12 months. As a result of Ms. Preissig's current mental condition, which is not expected to improve over the next twelve months (and which may last much longer if she fails to cooperate with the treatment program), she is not fit to engage in a gainful occupation. Further, because of Ms. Preissig's current mental condition, vocational rehabilitation services would not render her fit to engage in a gainful occupation. The sine qua non to her ability to engage in a gainful occupation is some significant improvement in her current mental condition.
Recommendation On the basis of all of the foregoing, it is recommended that the Department of Health and Rehabilitative Services issue a Final Order denying Ms. Janna Preissig's application for vocational rehabilitation services. DONE and ORDERED this 18th day of October, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1984.
The Issue Whether the Agency's denial of Petitioner's request for exemption for employment as a Certified Nursing Assistant in an Assisted Living Facility pursuant to Section 435.07, Florida Statutes, was proper.
Findings Of Fact The Agency for Health Care Administration is responsible for conducting background screenings for employees of health care facilities licensed under Chapter 400, Florida Statutes. At all times material to this case, Petitioner, Nikita Johnson, a licensed certified nursing assistant, was employed by an assisted living facility in Pinellas County, Florida, providing personal services to the residents therein. On or before October 23, 2000, and after a level I background screening by the Assisted Living Facility (AFL) licensing unit, Petitioner requested a hearing on her exemption for employment application. On October 23, 2000, the ALF licensing unit conducted a telephonic hearing on Petitioner's request for an exemption for employment. ALF licensing unit denied Petitioner's request for exemption. The Agency proved that on December 23, 1998, Petitioner was arrested on the felony charge of sexual assault: a sexual offense against a child, and lewd lascivious acts in the presence of a child under the age of 16 years. The felony charges were reduced to misdemeanor charges. Petitioner entered a plea of guilty to each of the two counts of battery, was convicted, and sentenced to one-year probation, plus payment of a fine and court cost. Petitioner completed the terms and conditions of her probation on or about April 4, 2001. The Agency proved that on February 19, 2000, Petitioner was arrested on the misdemeanor charge of disorderly conduct, and on April 4, 2000, entered a plea of nolo contendere to which adjudication was withheld and a fine imposed. Petitioner has committed disqualifying offenses as defined by Chapter 435, Florida Statutes. Additionally, Petitioner is ineligible for exemption based on a failure to demonstrate any rehabilitative efforts and an appreciation of the seriousness of the criminal charges. Petitioner has not met her burden of clear and convincing evidence that she should not be disqualified from employment as required by Section 435.07(3), Florida Statutes. By mail at the last known address, Petitioner was notified of the time, date, and place of the final hearing and chose not to appear.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a Final Order denying Petitioner's request for exemption for employment, pursuant to Section 435, Florida Statutes. DONE AND ENTERED this 1st day of May 2001, in Tallahassee, Leon, County, Florida. FRED L. BUCKINE 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 1st day of May, 2001. COPIES FURNISHED: Nikita Johnson 121 North Mercury Avenue Clearwater, Florida 33765 Christine T. Messana, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue May Petitioner terminate vocational rehabilitation services to Respondent, specifically, vocational rehabilitation benefits under Chapter 10, F.A.C., for a two year program to become a newspaper writer? HEARING AND PROCEDURE At hearing, Petitioner presented the oral testimony of Kay Nelson and had admitted two exhibits. Respondent testified on her own behalf and presented the oral testimony of Tom Hawkins. Respondent had no exhibits admitted in evidence. Petitioner filed transcript of the formal hearing but has filed no proposed findings of fact and conclusions of law. Respondent timely filed, within the extended time limits stipulated by the parties, a five page letter with various exhibits attached. Leave was not sought by motion for the submission of these after-filed exhibits and they have not been considered. A ruling in compliance with Section 120.59(2), Florida Statutes is contained within the CONCLUSIONS OF LAW portion of this recommended order.
Findings Of Fact Respondent, Marilyn McFadden, is an adult Caucasian female with a history of marital, familial, and emotional problems. Her past work history is unskilled and non-specific except for assisting a former husband who was a pentecostal preacher and evangelist and for working in her own creative jewelry business. In 1983, Respondent was referred by the federal Social Security Administration to Petitioner State of Florida, Department of Health and Rehabilitative Services vocational rehabilitation unit (DHRS), in Sarasota, Florida. On March 14, 1983, Respondent made application for vocational rehabilitation services and funds.1 An extensive "work-up" was prepared by Kay Nelson, a DHRS employee who was a vocational rehabilitation counselor at the time. In the course of this "work-up," medical advisors to Petitioner verified to the satisfaction of Ms. Nelson that Respondent had sufficient physical disability or physical vocational handicap in her neck, shoulders, and upper back2 to qualify for DHRS vocational rehabilitation client services on the basis of a physical handicap and that Respondent would require preparation or re-training for semi-sedentary work on the basis of her past limited work history and present physical disability/handicap. At that time, Respondent did not confide in Ms. Nelson or the psychological evaluator that she had undergone prior psychiatric treatment with regard to her first divorce. Therefore, Ms. Nelson's initial assessment of Respondent's eligibility for vocational rehabilitation services did not take into account that Respondent might qualify for benefits due to a mental or emotional disability. Likewise, it did not take into consideration that her psychological makeup might present a barrier to successful vocational rehabilitation or future employability. Indeed, Ms. Nelson's assessment concluded that Respondent was then psychologically fit to embark on a two year college course so as to enter the occupational grouping of "Newswriter 131.267-214." In order to achieve the goal of rendering Respondent employable, Respondent on her own behalf and Kay Nelson on behalf of DHRS entered into a written individualized written client services program set out in a three page document-dated July 12, 1983. (P-1) Before entering into the written program, Respondent and Nelson orally agreed that the services set forth in the written program had a reasonable expectation of getting Respondent back to work. In addition to counseling, guidance, assistance with placement, and other services to help Respondent achieve employability, the written program specifically provided for Respondent to pursue a Mass Communications "Journalism) AA [Associate of Arts] degree at Manatee Junior College by completing 60 semester hours at 517.00 per hour for a total of $1,020.00. In the "Counseling and Guidance Goals" portion of the written program it states as goals, "1. To encourage Marilyn's participation in New Option Program. To assist her to see her strong point-- positives. To assist her to view things as a whole and not dwell on detail." Elsewhere in the program the parties agreed, in pertinent part, to "Counselling & Guidance provided by V. R. Counselor, Double Your Opportunity Program at MJC,3 & Displaced Homemaker Programs. N/C to V.R."4 and "Placement Services provided by V.R. 9 Counselor, V.R. Placement Specialist, F.S.E.S.; and M.J.C. n/c to V.R." These services had the extensive objective of emotional support, teaching assertiveness, guiding course selection and vocational choices, and preparing Respondent for return to employment including resume preparation, job interview techniques, and proper vocational attitudes. In the "Statement of Client Agreement and Participation" portion of the written program it is spelled out that: "I, Marilyn J. McFadden; will cooperate in all phases of my Vocational Rehabilitation. I will attend all classes regularly and give my best effort in all classwork. I understand that in order for V.R. to continue at MJC, I must maintain a 2.0 GPA, keeping my counselor advised monthly of my progress at MJC in training and any expected changes in my V.R. plan. Prior to the end of each term, I will provide my counselor a written list of my expected course grades, initialed by the respective professors, as well as a listing of classes and books for the next term. I also understand that I am expected each term to contact the financial aid office and apply for any financial aid that it is determined I may be eligible to receive. Any scholarships or grant moneys I receive in addition to my PELL Grant are to be reimbursed to V.R. unless my counselor deems otherwise. I will be expected to assume financial responsibility for all my medical, therapy, and maintenance expenses. If personal or financial needs arise that would create undue hardship on my completing this training program I-am to advise my counselor prior to initiating any program changes. Any plans to continue on with a Baccalaureate degree in my ma]or field will not be considered until I have completed my two year degree and then will be dependent upon my successful completion of this training, my final G.P.A., and if my counselor and I agree that this prescribed course of action is in my best vocational interest. I understand that at the present time there is no financial obligation on the part of V.R. to fund me in a 4 year training program nor is my counselor or V.R. recommending such a program. Any major changes to my program such as change in vocational goal or additional training will require a supplemental plan. At the completion of my training program, I understand that I will be expected to work closely with those placement resources listed in my plan, keep scheduled job interviews, seek employment myself, and when appropriate employment is offered to me, return to work. "Emphasis supplied) Respondent signed and dated this program agreement. (P-1) From August 1983 until January 1984, DHRS provided Respondent with money for some tuition costs until she received a Pell education grant, provided her with funds for books, transportation, and child care for her daughter, and provided her with on-going guidance and counselling. During this period, Respondent fully complied with the signed, written program. Respondent took some remedial courses in math and English. It is not clear whether these courses were strictly remedial or are basic to an AA degree which may be used as the basis of a 4 year Baccalaureate degree, but these courses were apparently necessary to allow Respondent to remain in other courses required to qualify for an "AA" toward achieving "newswriter" employment. There is therefore insufficient evidence to support a finding that Respondent deliberately took unauthorized courses at Manatee Junior College during this period or during subsequent grading periods. On January 18, 1984, Ms. Nelson counselled with Respondent and concluded Respondent had severe emotional problems. Except for her formal job title, little information was provided concerning Ms. Nelson. No evidence of education, training or experience of Ms. Nelson was offered as a predicate for her reaching this conclusion, and indeed, Ms. Nelson personally testified that she was "not a doctor". However, upon Ms. Nelson's testimony concerning her direct, personal observations of Respondent on that date and shortly thereafter that Respondent was behaving erratically and talking incoherently and upon Respondent's reference to this period as "the breakdown," it is found that for an unspecified period of time in early 1984 Respondent was unable to comply with the written vocational rehabilitation program due to severe emotional problems. Ms. Nelson and a person named Jeanne Hinton transported Respondent to a psychiatric hospital and attempted to have her commit herself voluntarily. When Ms. McFadden refused to commit herself voluntarily, Ms. Nelson and others appeared in some type of legal proceeding in an attempt to involuntarily commit Respondent for psychiatric care. Inevitably, these incidents resulted in considerable animosity and distrust on Ms. McFadden's part toward Ms. Nelson and toward DHRS. There is no evidence that Ms. McFadden is currently under any court or Division of Administrative Hearing Order of incompetency or involuntary commitment.5 Nonetheless, based on hearsay and her own observations, Ms. Nelson, as counsellor in charge of Ms. McFadden's vocational rehabilitation benefits, determined that Ms. McFadden was ineligible for vocational rehabilitation benefits under the existing program. In large part, Ms. Nelson's decision was based upon Ms. McFadden's expressed belief that God would heal her without counselling by DHRS or a psychologist and Ms. McFadden's refusal of counselling by Ms. Nelson or any other human being. Ms Nelson appears to have concluded that such reliance on God is evidence of emotional instability. Ms. Nelson closed Respondent McFadden's file and terminated her vocational rehabilitation benefits upon grounds Respondent was "ineligible." Ms. Nelson is emphatic that the determination of ineligibility is that of the vocational counsellor and as that counsellor, she does consider Respondent ineligible because of what Ms. Nelson perceives as Respondent's emotional problems interfering with Respondent's ability to complete the agreed program and interfering with Respondent's employability. Ms. Nelson elected not to close the file upon grounds-the Respondent was "uncooperative." Respondent denies any type of mental handicap requiring remediation as of the date of formal hearing. She maintains that although she first signed the contract program which DHRS has now terminated, she thereafter decided unilaterally that her acceptance of the benefits provided thereunder was dishonest within her personal moral code because she had no intention of becoming a newswriter; that she did not intend to ever accept employment in such a field but intended to "piggyback" a four year Baccalaureate degree in journalism and possibly a Master's degree on top of the "AA" degree if she successfully completed the "AA" degree. At hearing, Respondent initially refused to comply with the terms of the program and then offered to comply with the requirements of the program as far as achieving the "AA" degree but refused to progress toward employability as a newswriter and indicated she would still reject counselling. The mutual hostility, mutual mistrust, and lack of respect for each other's point of view of Ms. Nelson and Respondent McFadden was an observable situation clearly evident throughout the entire hearing.
Recommendation That the Department of Health and Rehabilitative Services enter a final order affirming the administrative termination of the vocational rehabilitation benefits entered into by the July 12, 1983 written client services program. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.
The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 15th day of June, 2004.
