Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Question 7 Question 7 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor who prepared the examination for the Department determined that No. 4 was the correct answer. Because she did not have No. 4 as her answer, Petitioner was not given any credit for Question 7. While No. 4 is a correct answer to Question 7, so is No. 1, the answer selected by Petitioner. Compared to preadolescents, the moral judgments of adolescents are more susceptible to "prestige suggestion," Petitioner should therefore receive credit for her answer to Question 7. Question 30 Question 30 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 30. Petitioner was properly denied credit for this answer. Of the symptoms/traits listed, the one she selected is not the one most characteristic of chronic drug abuse. Those described in No. 3, as well as in No. 2, are more common. Question 68 Question 68 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 1 was the correct answer. Because she did not have No. 1 as her answer, Petitioner was not given any credit for Question 68. Petitioner was properly denied credit for this answer. Of the choices given, the one selected by Petitioner does not represent the most useful way for a counselor to handle the prejudice referenced in the question stem. A counselor may encounter clients whose morals, customs, and/or behavior arouse prejudice in the counselor, notwithstanding that there are no cultural differences between these clients and the counselor. Accordingly, learning as much as possible about various cultures will not be helpful to the counselor in handling such prejudice. The correct answer to Question 68 is No. 1. Self-awareness on the part of the counselor is essential to effective counseling. It is imperative that a counselor remain objective and not respond to the client on the basis of bias or prejudice. Question 69 Question 69 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 69. While No. 3 is a correct answer to Question 69, so is No. 4, the answer selected by Petitioner in counseling drug abusers, limit setting, or what is commonly known as "tough love," is generally more effective than approaching the client with sympathy and gentleness. Petitioner should therefore receive credit for her answer to Question 69. Question 85 Question 85 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 85. Petitioner was properly denied credit for this answer. A counseling session may be effective even though the client is upset upon leaving. The correct answer to Question 85 is No. 3. The mark of a skillful counselor is the ability to recognize the significance of minor or subtle changes in the client's conduct during the counseling session. Question 94 Question 94 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 2 was, the correct answer. Because she did not have No. 2 as her answer, Petitioner was not given any credit for Question 94. While No. 2 is a correct answer to Question 94, so is No. 4, the answer selected by Petitioner. Indeed, No. 4 is essentially the same answer as No. 2. They are simply worded differently. Petitioner should therefore receive credit for her answer to Question Question 99 Question 99 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as answer, Petitioner was not given any credit for Question 99. Petitioner was properly denied credit for this answer. A couple that has been referred to a counselor for sexual problems should not be referred to a physician for medical work-ups before the counselor has met with the couple to find out more about the nature of the couples's difficulties. Accordingly, the correct answer to Question 99 is not No. 1, but No. 3.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling sustain Petitioner's challenge to the grading of her answers to Questions 7, 69 and 94 on Part II of the April, 1990, Mental Health Counseling Examination, reject her challenge to the grading of the remaining questions at issue, and modify her score on the examination accordingly. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1991. STUART M. LERNER 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 22nd day of November, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0650 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact To the extent that it states that Petitioner's answers to Questions 7, 69 and 94 are correct and that she therefore should receive credit for these answers, this proposed finding has been accepted and incorporated in substance in this Recommended Order. To the extent that it states that her answers to Questions 30, 68, 85 and 99 are correct and that she therefore should receive credit for these answers, this proposed finding has been rejected because it is contrary to the greater weight of the evidence. Rejected because it is not supported by persuasive competent substantial evidence. Respondent's Proposed Findings of Fact 1-17. Accepted and incorporated in substance. 18-19. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it constitutes, not a finding of fact, but a statement of the opposing party's position regarding Question 30. 22-24. Accepted and incorporated in substance. 25-26. Rejected because they are contrary to the greater weight of the evidence. The preponderance of the evidence establishes that the concept of "prestige suggestion" incorporates the notion of peer identity and influence. 27. Rejected because it is irrelevant and immaterial. It matters not why an applicant selected a answer, if that answer is correct. 28-29. Rejected because they are contrary to the greater weight of the evidence. 30-33. Accepted and incorporated in substance. COPIES FURNISHED: Diane M. Kirigin, Esquire 2428 Broadway P.O. Box 9936 Riviera Beach, Florida 33419 Roberta L. Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Based on the Prebearing Stipulation executed by the parties, and the evidence submitted at hearing, the following facts are determined: Mental Health Board No. 9 ("Board") coordinates mental health programs within the Department's Service District 9-a geographic area encompassing Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties. Three community mental health centers provide services to meet the mental health needs within District 9. (Testimony of Robert Quam) The Board, by contract with the Department's Administrator of District 9, coordinates and disburses State funds specifically appropriated for the purpose of supporting community treatment programs for persons suffering from mental illness, alcoholism and drug abuse. The current contract between the District Administrator and the Board was executed during June, 1979, and contains no allocation to the Board for the provision of residential treatment services for emotionally disturbed children. (Testimony of K. Bray) In 1979, the Florida Legislature appropriated to the Department's central Office of the Assistant Secretary for Operations, Office of Assistant Secretary, a lump sum of $1,295,000.00 for the purchase of residential treatment services for emotionally disturbed children during fiscal year 1979-80. In addition, $705,000.00 was provided, in lump sum, to the Florida Department of Education for education of emotionally disturbed children. (Testimony of K. Bray, Petitioner's Exhibit Nos. 2 and 9) On July 19, 1979, the Department distributed to over 50 providers of social services, a Request for Proposals for the purchase of residential services for emotionally disturbed children. The Request indicated the Department was "seeking to expand its services for emotionally disturbed children and adolescents through the development of residential. treatment- orientation programs," 1/ outlined the features of the program, including statewide standards and other criteria, and invited recipients to submit to the Department's Assistant Secretary for Operations, proposals to provide such services by contractual purchase. (Testimony of K. Bray, Petitioner's Exhibit Nos. 1 and 2) The Department required proposed residential services for emotionally disturbed children to emphasize short term treatment designed to meet the social, emotional, and educational (including vocational) needs of children. Since the Department concluded that there was "no concrete evidence that one specific therapeutic modality works best at reducing or eliminating a child's emotional disturbance," 2/ applicants were invited to propose a wide range of treatment modalities. While successful treatment for emotionally disturbed children includes a therapeutic mental health element, it also must include educational, vocational, recreational, and social components. (Testimony of E. Bray, Dr. Clifford J. Bodarky, Petitioner's Exhibit No. 2) Upon receiving the Department's Request for Proposals for the purchase of residential services for emotionally disturbed children, the Executive Director of the Board met with representatives of the three mental health centers within District 9. They concluded that there was an urgent need for such services within their area, and agreed to submit, through the Board, a coordinated proposal to the Department. The Board's Executive Director drafted the initial proposal, and, after approval by the mental health centers and Board, submitted it to the Department's Assistant Secretary for Operations. The Board's proposal, which would be supported and administered by the three mental health centers, provided for the establishment of 45 therapeutic foster care homes, with close supervision by professional case workers. (Testimony of R. Quam, Petitioner's Exhibit Nos. 3 and 4) The Department received in response to its July 19th request, 20 proposals from providers of social services throughout the State, including one mental health board (Mental Health Board No. 9, Inc.), several mental health centers, a hospital, university, Little River Boys Ranch and Boystown of South Florida. By letter of August 31, 1979, the Department's Assistant Secretary for Operations notified the Board that its proposal had been selected for further review. During September, the Board's Executive Director discussed its proposal with Department representatives in Tallahassee, including Ms. Phyllis Roe, Assistant Secretary for Operations. They specifically discussed one attribute of the proposal-- that it would be a coordinated effort under the Board, with the Board serving as the applicant. Although Board representatives left that meeting with a belief that the Department was amenable to such a role for the Board, Department representatives did not expressly approve, or commit to approval of this feature of the proposal. (Testimony of Terry H. Allen, and Robert K. Quam) By letter dated October 8, 1979, Assistant Secretary Roe informed the Executive Director of the Board that its proposal had been approved, and concluded: "Because your plan involves therapeutic foster homes in three separate Mental Health Center catchment areas and each Center may focus its program a little differently, we will need to execute three separate contract.. I believe the process will be expedited if we deal directly with the Center staff responsible, with your par- ticipation in the process and, with space provided on the contract for your con- currence." (Petitioner's Exhibit No. 7) By letter of October 25, 1979, the Board objected to the Department's decision to bypass it and implement the proposal by contracting directly with each mental health center involved. The Department subsequently executed separate contracts with the three mental health centers included in the Board's proposal. No evidence was introduced to indicate that the program is not being effectively administered pursuant to the provisions of those contracts. (Petitioner's Exhibit No. 8)
Conclusions Funds appropriated to the Department's central Office of the Assistant Secretary for purchase of residential services for emotionally disturbed children are not State mental health funds which must be distributed to and administered by the various district mental health boards under Part IV, Chapter 394, Florida Statutes (1979). Contract principles do not compel the Department to contract with Petitioner Mental Health Board No. 9 to provide residential services to emotionally disturbed children located in District 9.
Recommendation That Petitioner Mental Health Board No. 9's request for relief be DENIED and the Department's actions under challenge be UPHELD.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In November of 1983, HMA filed its application for a Certificate of Need to construct and operate a 60-bed adolescent treatment center in Orlando, Florida. An omissions response was filed by HMA in January of 1984. Thereafter, HRS issued its initial intent to grant the application and PIO requested an administrative hearing. HMA is a privately held corporation which owns or manages twelve or thirteen acute care hospitals in the States of Kentucky, West Virginia, Pennsylvania, Missouri, Texas and Florida, several of which are psychiatric hospitals. The proposed long-term psychiatric treatment facility for adolescents is patterned after a 55-bed program currently operated by HMA in Arlington, Texas. The proposed facility will be a freestanding campus-like setting located on ten to fifteen acres of land in the southern portion of Orlando. The precise site has not yet been selected. The single-story facility will have a total size of approximately 45,000 to 50,000 square feet and will be divided into two separate units which connect into a core area containing various support services, such as offices, a gymnasium, a swimming pool, a media center, and an occupational therapy area. While the location finally selected for the facility will have a bearing on the site costs of the project, the estimated construction costs of approximately 3.1 billion do contain a contingency factor and are reasonable at this stage of the project. Each unit will be served by two interdisciplinary treatment teams headed by a physician or a psychiatrist. Key personnel for the facility, such as department heads and program directors, will most likely be recruited from outside the Orlando area in order to obtain persons with experience in long-term care for adolescents. The treatment program is designed to serve adolescents between the ages of 10 and 19, though the bulk of patients will be middle school and high school individuals between the ages of 13 and 17. While the primary service area will be adolescents in District 7, the remainder of the central Florida region is identified as a secondary service area. A full educational program at the facility is proposed. The concept of the hospital will be to treat the whole person, not just his psychiatric problems, and the treatment program will include and involve family members and other factors which may have a bearing on the adolescent's ability to fit into society. The form of treatment is based upon a "levels" approach -- a form of behavior modification wherein privileges are granted for appropriate behavior and the patient is allowed to move up to the next succeeding level of privileges. It is contemplated that the average length of stay for a patient will be approximately six months -- the average time anticipated for a patient to move from the admission level to the level of discharge. HMA intends to seek accreditation of its proposed facility from the Joint Commission on Accreditation of Hospitals. The total estimated project cost for the proposed facility is $6,307,310.00. Financing is to be obtained either through a local bond issue or by a private lending institution. Based upon an evaluation of HMA's audit reports for the past three years, an expert in bond financing of health care facilities was of the opinion that HMA would be eligible either for a private placement or a bond issue to finance the proposed project. HMA intends to charge patients $325.00 per day, and projects an occupancy rate of 80 percent at the end of its second year of operation. This projection is based upon a lack of similar long-term psychiatric facilities for adolescents in the area, the anticipated, experience at the Arlington, Texas adolescent facility and the anticipated serving of clients from CYF (Children Youth and Families -- a state program which; serves adolescents with psychiatric and mental problems). Although no established indigent care policy is now in existence, HMA estimates that its indigency caseload will be between 3 and 5 percent. It is anticipated that the proposed facility will become a contract provider for CYF for the care and treatment of their clients and that this will comprise 20 percent of HMA's patient population. HRS's Rule 10-5.11(26), Florida Administrative Code, relating to long- term psychiatric beds, does not specify a numerical methodology for quantifying bed need. However, the Graduate Medical Education National Advisory Committee (GMFNAC) methodology for determining the need for these beds is generally accepted among health care planners. The GMENAC study was initially performed in order to assess the need for psychiatrists in the year 1990. It is a "needs- based" methodology, as opposed to a "demand-based" methodology, and attempts to predict the number of patients who will theoretically need a particular service, as opposed to the number who will actually utilize or demand such a service. Particularly with child and adolescent individuals who may need psychiatric hospitalization, there are many reasons why they will not seek or obtain such care. Barriers which prevent individuals from seeking psychiatric care include social stigma, the cost of care, concerns about the effectiveness of care, the availability of services and facilities and other problems within the family. Thus, some form of "demand adjustment" is necessary to compensate for the GMENAC formula's overstatement of the need for beds. The GMENAC formula calculates gross bed need by utilizing the following factors: a specific geographic area's population base for a given age group, a prevalency rate in certain diagnostic categories, an appropriate length of stay and an appropriate occupancy factor. In reaching their conclusions regarding the number of long-term adolescent psychiatric beds needed in District 7, the experts presented by HMA and PIO each utilized the GMENAC formula and each utilized the same prevalency rate for that component of the formula. Each appropriately used a five-year planning horizon. However, each expert reached a different result due to a different opinion as to the appropriate age group to be considered, the appropriate length of stay, the appropriate occupancy factor and the factoring in of a "demand adjustment." In calculating the long-term adolescent psychiatric bed need for District 7 in the year 1989, HMA's expert used a population base of ages 0 to 17, lengths of stay of 150 and 180 days, an occupancy level of 80 percent and an admissions factor of 96 percent. Utilizing those figures, the calculation demonstrates a 1989 need for 158 beds if the average length of stay is 150 days, and 189 beds if the average length of stay is 180 days. If the population base is limited to the 10 to 19 age bracket, the need for long-term psychiatric beds is reduced to between 70 and 90, depending upon the length of stay. From these calculations, HMA's expert concludes that there is a significant unmet need for long-term adolescent psychiatric beds in District 7. This expert recognizes that the numbers derived from the GMENAC formula simply depict a statistical representation or indication of need. In order to derive a more exact number of beds which will actually be utilized in an area, one would wish to consider historical utilization in the area and/or perform community surveys and examine other site-specific needs assessment data. Believing that no similar services or facilities exist in the area, HMA's need expert concluded that there is a need for a 60-bed facility in District 7. In applying the GMENAC methodology, PIO's need expert felt it appropriate to utilize a base population of ages 10 through 17, an average length of stay of 90 days and an occupancy rate of 90 percent. Her calculations resulted in a bed need of 37 for the year 1990. Utilizing a length of stay of 120, 150 and 180 days and a 90 percent occupancy rate, a need of 50, 62 and 75 beds is derived. If an occupancy rate of 80 percent is utilized, as well as a population of ages 10 - 17, the need for beds is 42, 56, 70 and 84, respectively, for a 90, 120, 150 and 180 day average length of stay. The need expert for PIO would adjust each of these bed need numbers by 50 percent in order to account for the barriers which affect the actual demand for such beds. Since the HMA proposed facility intends to provide service only to those patients between the ages of 10 and 19, use of the 0 - 17 population would inflate the need for long-term adolescent psychiatric beds. Likewise, PIO's non-inclusion of 18 and 19 year olds understates the need. PIO's use of a 90-day average length of stay would tend to understate the actual need in light of HMA's proposed treatment program which is intended to last approximately six months. While some demand adjustment is required to properly reflect the barriers which exist to the seeking of long-term adolescent psychiatric care, the rationale of reducing by one-half the number derived from the GMENAC methodology was not sufficiently supported or justified. Even if HMA's calculations were reduced by one-half, a figure of between 79 and 94 beds would be derived. The existence of other long-term adolescent psychiatric beds in District 7 was the subject of conflicting evidence. West Lake Hospital in Longwood, Seminole County, holds a Certificate of Need and a license as a special Psychiatric hospital with 80 long-term beds. However, the Certificate of Need was issued prior to the adoption of Rules 10-5.11(25) and (26), Florida Administrative Code, when anything in excess of 28-days was considered long- term. The West Lake application for a Certificate of Need referred to a four- to-six week length of stay -- or a 28 to 42 day period --for adults, and a ten week, or 70 day length of stay for children and adolescents. In preparing inventories for planning purposes, HRS considers the 40 child and adolescent psychiatric beds at West Lake Hospital to be acute or short-term beds. The West Lake facility is not included in HRS's official inventory of licensed and approved long-term care beds as of October 1, 1984. In fact, the only long-term care beds listed for District 7, in addition to HMA's proposed psychiatric facility, are beds devoted to the treatment of substance abuse. PI0 is the holder of a Certificate of Need to construct and operate a 60-bed short-term adolescent psychiatric hospital in Southwest Orange County, and is currently planning the actual development and construction of the facility. If PIO is not able to reach the census projections contained in its Certificate of Need application, its ability to generate earnings could be adversely impacted. Even a five percent decrease in PIO's census projections would require PIO to either raise its rates or make reductions in direct costs. This could include a decrease in staffing, thus affecting a reduction in the available programs, problems in attracting quality staff and ultimately a reduction in the quality of care offered at the PIO facility. In a batch subsequent to the HMA application, PIO requested the addition of 15 long-term adolescent psychiatric beds and 15 substance abuse beds. When an adolescent psychiatric patient is evaluated for placement in a hospital setting, it is generally not possible to determine how long that patient will require hospitalization. The adolescent psychiatric patient is often very guarded, distrusting both parents and other adults, and it is difficult to obtain full and necessary information from both the patient and the parents. Several weeks of both observation and the gathering of data, such as school records, are necessary in order to access the adolescent patient's degree of disturbance. With respect to treatment programs, there is no sharp medical demarcation between a 60-day period and a 90 day period. Patients in short-term facilities often stay longer than 60 days and patients in long term facilities often stay less than 90 days. The length of stay is very often determined by the parents, in spite of the treatment period prescribed by the physician. The treatment programs in both short-term and long-term psychiatric facilities are very similar, and short- and long-term patients are often treated in the same unit. Staffing for the two types of facilities would be basically the same, with the exception, perhaps, of the educational staff.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that HMA grant HMA's application for a Certificate of Need to construct and operate a 60-bed long-term adolescent psychiatric facility in Orlando, Florida. Respectfully submitted and entered this 9th day of July, 1985, in Tallahassee, Florida. DIANE D. TREMOR, 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 9th day of July, 1985. COPIES FURNISHED: C. Gary Williams and Michael J. Glazer P. O. Box 391 Tallahassee, Florida 32302 John M. Carlson Assistant General Counsel 1323 Winewood Blvd. Building One, Suite 407 Tallahassee, Florida 32301 Robert S. Cohen O. Box 669 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
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
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
The Issue Whether Petitioner is entitled to an unconditional license to practice medicine in the State of Florida.
Findings Of Fact Petitioner is a physician who received her medical degree from the University of Monterrey School of Medicine, Monterrey, Mexico. Petitioner subsequently specialized in the practice of psychiatry. In May 1991, Petitioner submitted an application for licensure by endorsement in the State of Florida. Between the time she applied for licensure in the State of Florida and the formal hearing, Petitioner earned board certification in psychiatry. At the time of the formal hearing, Petitioner was licensed to practice medicine in the States of Georgia and Illinois. Question Seven and Question Eight on the application for licensure by endorsement are as follows: Have you ever had to discontinue practice for any reason for a period of one month or longer? Yes No Are you now or have you ever been emotionally/ mentally ill? Yes No Have you ever received psychotherapy? Yes No Petitioner answered each of these questions in the affirmative. In explanation of her affirmative answer to Question 7, Petitioner stated: "While training at Wayne (1982-83) I was notified very late that the University would not offer me a contract for 83-84. I did not have the time to apply elsewhere. After completing a year of Social Service in Mexico I did not match with a program. However, I did do some very, very informal observing at the Miami VA Psychiatry." In explanation of her affirmative answers to Question 8, Petitioner stated: "I have been under psychiatric care from 7/89 - date for Major Depression." On May 27, 1992, Petitioner appeared before the Credentials Committee of the Board of Medicine. A transcript of that proceeding is part of the Petitioner's licensure file. The minutes summarizing the action taken by the Credentials Committee provide, in pertinent part, as follows: Issues: History of psychotherapy; Medical education process; Evaluation of postgraduate training in Medicine in 1982-83 and not being offered a contract for second year. Applicant subsequently completed four years training in psychiatry. After discussion, motion was made to recommend favorably for licensure subject to the following conditions: Applicant must enter into a contract with PRN. Applicant must practice under indirect supervision of a Board approved physician in the same speciality area of practice as that of Dr. Perez. Both Dr. Perez and her proposed supervisor must appear before the Probation Committee for approval of the supervision and practice plan prior to entering practice. The supervising physician shall be required to submit quarterly reports to the Board regarding Dr. Perez' practice activities and her ability to practice with skill and safety with a final report at the end of the year. Dr. Perez stated that she was opposed to the conditions of licensure. The motion was then withdrawn, and a motion was made, seconded to recommend denial of licensure for lack of insight into her problem and failure to accept the recommendation of PRN. The motion failed . . . After further discussion, Dr. Perez stated that she would not object to licensure with the conditions discussed previously. Motion was then made, seconded and carried to recommend for licensure subject to the conditions stated in the first motion. . . . On August 5, 1992, the Board of Medicine entered an order pertaining to Petitioner's application for licensure by endorsement that provided, in pertinent part, as follows: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to approve with certain conditions your application for licensure as a physician by endorsement. The Board of Medicine reviewed and considered your application for licensure by endorsement on June 6, 1992, in Tampa, Florida and has determined that said licensure by endorsement be approved contingent upon your entering an advocacy contract with the Physicians Resource Network (PRN). Furthermore, you are required to practice for a period of one year under the indirect supervision of a Board approved physician who practices in your speciality area. Both you and your supervisor are required to appear before the Board's Probation Committee and obtain approval of your supervisor and practice plan prior to entering practice in Florida. Your supervising physician is required to submit quarterly written reports which address your practice activities and ability. The Board stated as grounds therefore that you have a history of psychotherapy and numerous irregularities in your medical education and training. Bronna Hughes, a Specialist I with the Respondent's Division of Medical Quality Assurance, reviewed Petitioner's application, noted several deficiencies in the application, and requested additional information from Petitioner. In addition, Ms. Hughes wrote several letters to clarify or verify the information contained in the application. By the time the Credentials Committee and the Board of Medicine acted on Petitioner's application, Respondent had received correspondence from Wayne State University, reports from Petitioner's treating psychiatrist, and a recommendation from the director of the PRN. In addition, Petitioner made a personal appearance before the Credential's Committee of the Board of Medicine on May 27, 1992, accompanied by Dr. Roger Goetz, the director of the PRN. WAYNE STATE UNIVERSITY 1982-83 Petitioner was in a residency training program at Wayne State University in the field of internal medicine from July 1, 1982 to June 30, 1983. Dr. Ernest L. Yoder, M.D., Program Director of Wayne State's Residency Training in Internal Medicine, wrote a letter addressed to Ms. Hughes on June 26, 1991, that provided, in pertinent part, as follows: This letter is written to verify that Dr. Ana Maria Perez completed one year of residence training at the PGI level in the Department of Medicine at Wayne State University in Detroit from July 1, 1982 to June 30, 1983. During that period of training Dr. Perez had medical problems requiring psychiatric treatment. She did successfully complete that year and receive support from our program to go on for training in the psychiatric residency. In the spring of 1983, Petitioner learned that she had missed the match whereby residency slots for the 1983-84 academic year are filled. Petitioner received evaluations at Wayne State which criticized her ability to do basic medical procedures. Petitioner admitted she had difficulties with her residency training while attending Wayne State, but attributed that poor performance to her dissatisfaction with internal medicine. Dr. Vaitkevicius, the head of her residency program, talked to Petitioner about her performance and expressed to Petitioner his opinion that she would benefit from treatment by a psychiatrist or a psychologist. Petitioner was informed that her contract with the internal residency program at Wayne State University would be extended if she underwent counseling. Dr. Vaitkevicius referred Petitioner to a Dr. Frankel, a psychologist, for a psychological evaluation while she was in residency training in 1982-1983. Petitioner did see Dr. Frankel, but she never entered psychotherapy with him. Petitioner's uncontradicted testimony was that she never received psychotherapy while at Wayne State. Petitioner could not recall whether she had refused to see Dr. Frankel after Dr. Vaitkevicius' recommendation or whether she had merely lost interest in the internal medicine program at Wayne State. Dr. Vaitkevicius also recommended that Petitioner see a Dr. Luby for a psychological evaluation while she was in the residency program at Wayne State. Petitioner saw Dr. Luby, but there was no evidence that Dr. Luby evaluated Petitioner or provided her psychotherapy. Petitioner told the Board of Medicine they would receive a favorable evaluation from Wayne State regarding her year of residency training there in 1982-83. Petitioner knew or should have known that she would not receive a favorable evaluation from Wayne State. Petitioner testified at formal hearing that she had never been asked to specifically authorize the release of her records at Wayne State University, nor had she ever signed an authorization waiver. Petitioner signed an authorization with her application which permitted Respondent to request and receive Petitioner's records from Wayne State University. Wayne State University only provided to the Board information which indicated Petitioner was in attendance at Wayne State during the 1982-83 school year. On December 13, 1993, Louis Lessem, Associate General Counsel of Wayne State University, informed the Board of Medicine by letter that Petitioner had an agreement with Wayne State University in which access to Petitioner's records by outside entities, such as Respondent, is restricted. Petitioner denied she entered into an agreement with Wayne State which prohibits the University from providing information other than the dates of her attendance there. There was no testimony from Mr. Lessem or any other representative of Wayne State. There was no competent evidence that Petitioner blocked or attempted to block the Respondent from obtaining information from Wayne State since the letter from Mr. Lessem is hearsay. Petitioner's application reflects that she received no credit for her residency training at Wayne State. Petitioner testified that she also informed the licensing boards of Georgia and Illinois that she had received no credit for her residency training at Wayne State. PSYCHOTHERAPY WITH DR. VAL - JUNE 1989 - AUGUST 1992 At the time Petitioner submitted her application in 1991, she was in psychotherapy with Dr. Edwardo Val, a board certified psychiatrist who was a faculty member of the University of Chicago at the time he treated Petitioner. In August 1992, Dr. Val moved to the University of California at San Diego, where he became a member of the faculty of that institution. Petitioner voluntarily sought treatment from Dr. Val following the death of her brother in June 1989. Dr. Val had two weekly sessions with Petitioner beginning in the third week of June 1989 until Petitioner's psychotherapy ended in August 1992. 1/ Dr. Val diagnosed Petitioner's condition as being Major Depression, with single bereavement features. Petitioner was on medication prescribed by Dr. Val at various times between June 1989 and June 1992. These medications were Pamelor, Wellbutrin, Prozac, Buspar, Anafrauil, and Ativan. Petitioner's medication was changed from time to time by Dr. Val, and temporarily halted during one period in 1991, because of the side effects Petitioner was experiencing and because she went into partial remission. After being off medicine for a short period in 1991, Petitioner suffered a recurrence of the symptoms of depression. 2/ Dr. Val wrote a letter to the Respondent on May 7, 1991, that reflected that Petitioner was not on any type of medication. Prior to being taken off all medications in 1991, Petitioner had been on Pamelor for six to eight months. Shortly after that letter, Dr. Val again placed Petitioner on Prozac because there were several symptoms of depression that needed to be treated. Petitioner was on Prozac, augmented by Wellbutrin, until June 1992, when she was taken off all medications. The medicines taken by Petitioner may cause anxiety, nervousness, insomnia, nausea, dry mouth, and other side effects. The drugs taken by Petitioner do not have lasting side effects and are not addictive. According to Dr. Val episodes of depression tend to recur within two years of the treatment in approximately 75 percent of the patients who suffer major depression. Dr. Val was unaware that Petitioner had any previous history of psychiatric treatment. Petitioner did not inform Dr. Val that she had been referred to Dr. Frankel or Dr. Luby while attending Wayne State in 1983, and he was not aware of the letter from Dr. Yoder to the Respondent advising that Petitioner had medical problems that required psychiatric treatment while at Wayne State. Dr. Val testified he would not change Petitioner's diagnosis or treatment if he discovered that Petitioner had a previous episode with depression while at Wayne State. Dr. Val is of the opinion that Petitioner does not need to take medication at the present time or undergo further psychotherapy. He is of the opinion that the conditions Respondent proposes to impose on her license are burdensome and unnecessary. DR. SCHWEMER Because of her history of psychiatric treatment, Petitioner was referred to the PRN for an evaluation. Because Petitioner was residing in the State of Illinois, the PRN arranged for her to be evaluated by Dr. Cullen R. Schwemer, Clinical Director of Suburban Psychiatric Associates in Illinois. Dr. Schwemer submitted a report to the Respondent following his psychiatric diagnostic evaluation of Petitioner on March 4, 1992. The report discussed the history he took from Petitioner and his evaluation of Petitioner's mental status. The report contained the following conclusions: Mental status examination revealed a lady who showed no signs of psychosis and no signs of organic brain dysfuntion. She reported sleep was fair and energy level was fair. Her mood was euthymic and suicidal thoughts were not present. Based on the above evaluation, it is my opinion that Dr. Perez is free of any psychiatric impediment to the active practice of psychiatry and medicine in general. More specifically, I think that she is quite capable of practicing psychiatry and medicine in general with reasonable skill and safety. . . . Petitioner did not undergo the evaluation requested by the Board of Medicine for several months. Petitioner was referred to PRN on June 13, 1991. After several attempts to contact Petitioner by PRN, Petitioner was referred to Dr. Schwemer for evaluation on August 23, 1991. On September 10, 1991, Petitioner notified PRN that she did not feel she could undergo the evaluation at that time. Petitioner explained this delay in seeking the evaluation in that she was busy with a family wedding and reunion and was preparing for board certification in psychiatry and for licensure in Georgia. Petitioner was finally evaluated by Dr. Schwemer on March 4, 1992. Petitioner did not inform Dr. Schwemer that she had been referred to Dr. Frankel or Dr. Luby while in residency training at Wayne State. Petitioner was asked by counsel for Respondent whether she told Dr. Schwemer about the different medications that had been prescribed by Dr. Val. Petitioner's answer to that question was evasive. Petitioner could not recall if she discussed the various medications with which she had been treated during her consultation with Dr. Schwemer. 3/ Petitioner did not discuss with Dr. Schwemer whether she should be in a monitoring program such as PRN. There is no information from Dr. Schwemer regarding the appropriateness of a monitoring contract other than the opinions he expressed in his letter to the Respondent. DR. BENSON Dr. Benson practices psychiatry and is board certified in pediatric and child psychology. He is currently president-elect of the Florida Psychiatric Association. Dr. Benson evaluated Petitioner in June of 1993. This evaluation included an interview of the Petitioner and his review of her educational records, records of Dr. Val's treatment, and records Petitioner had received from the PRN. Petitioner told Dr. Benson that she completed her work in Monterrey, went to Wayne State for a year, took off a year, and then went to another program. Petitioner provided no other information to Dr. Benson regarding Wayne State. Dr. Benson did not receive a separate report from Dr. Val and he did not communicate with Dr. Val. He relied on the letters provided to the Board of Medicine by Dr. Val, the other records provided by Petitioner, and on his interview and evaluation of Petitioner. Dr. Benson testified there is about a 70 percent chance of a future episode or depression after one episode of depression, and a 90 percent chance after the occurrence of two previous episodes or recurrence. Dr. Benson's opinion was that Petitioner's diagnosis was major depression, single episode, in remission. Dr. Benson found nothing that would suggest the need for continued monitoring or supervision. Dr. Benson was of the opinion that monitoring would be an excessive burden on Petitioner's licensure, but he was not aware of the specific recommendations or requirements placed on Petitioner's practice by PRN. DR. MOORE Petitioner sought an evaluation from Dr. David J. Moore in preparation for the hearing in this proceeding. Dr. Moore is a psychiatrist and medical director of the Tallahassee Pain and Stress Management Institute. Dr. Moore diagnosed Petitioner's condition as being major depression, single episode. Dr. Moore was of the opinion that Petitioner had recovered from her episode of depression and that the conditions placed on Petitioner's licensure were prejudicial, inappropriate, and unnecessary. Dr. Moore did not review the transcript of Petitioner's appearance before the Board of Medicine, did not review Petitioner's application file, and did not discuss the conditions on Petitioner's license with PRN. Dr. Moore was uncertain of the course or duration of medications that Petitioner was treated with. Further, he was unaware of that Petitioner was treated with more than two antidepressants. Dr. Moore testified his diagnosis could change if he was aware that a patient had prior depressive episodes or if a patient lied to him about his or her history. Petitioner informed Dr. Moore that she had had no prior occurrences of depression. DR. POMM Dr. Pomm is a psychiatrist licensed in Florida and Virginia. He is employed by the PRN and is Board certified in psychiatry. Dr. Pomm has treated almost one thousand patients diagnosed with depression. He was tendered and accepted as an expert in psychiatry. According to Dr. Pomm, after one episode of major depression there is a 50 percent chance of recurrence; after two major depressions there is a 50-90 percent chance of recurrence. The psychiatrist relies on the information provided by the patient. In Dr. Pomm's opinion, failure to provide relevant information to the evaluating psychiatrist may affect the psychiatrist's diagnosis. 4/ Based on his review of the PRN's file on Petitioner, which included Dr. Val's reports, Dr. Pomm formed an opinion that Petitioner has had two major depressive episodes in her lifetime. The first episode was triggered by the death of Petitioner's brother. The second occurred after Dr. Val initially took Petitioner off all medication in 1991. Dr. Pomm is of the opinion that Petitioner's diagnosis should be major depression, recurrent. Dr. Pomm does not feel the monitoring contract is burdensome, and that it provides a safeguard to the public. It is his expert opinion that Petitioner belongs in the PRN monitoring program. PETITIONER'S CURRENT EMPLOYMENT Petitioner works in Chicago, Illinois for a Dr. Runke who performs services for the Social Security Administration and for Consultative Exams, Inc., a consulting firm that performs services for the Railroad Retirement Board. Dr. Runke refers to Petitioner applicants for Social Security benefits. Petitioner interviews those applicants and prepares a clinical impression of the applicant. Petitioner does not interview applicants for Consultative Exams, Inc., but reviews "paperwork" pertaining to the applicants. It was not established that the review of this paperwork should be considered the practice of psychiatry. Petitioner received permanent licensure in Illinois in 1988. Petitioner received a license to practice medicine in Georgia in 1991, and she earned her board certification in psychiatry in November 1993. PROGNOSIS Petitioner disagreed with all the experts at the hearing whom indicated that an individual who had suffered from a major depressive episode is more likely to have future problems with depression. Petitioner was of the opinion that the witnesses were quoting statistics from studies of patients who were treated by medication, but not by psychotherapy. Based on the testimony of Dr. Pomm and, in part, on the Petitioner's experience at Wayne State University, Respondent argues that Petitioner has experienced more than one episode of major depression. Respondent argues, correctly, that Petitioner's long term prognosis would not be as favorable and that a recurrence of the depression would be more likely if it is concluded that Petitioner has experienced more than one episode of major depression. Petitioner argues, based primarily on the testimony of Dr. Val, that she has suffered one and only one episode of major depression and that the episode was triggered by the death of her brother. This conflict in the evidence is resolved by finding that the greater weight of the evidence establishes that Petitioner has suffered only one episode of major depression, for which she was treated by Dr. Val. The testimony of Dr. Val is given more weight than that of Dr. Pomm because as the treating psychiatrist, Dr. Val worked with Petitioner over a long period of time and was in a position to observe her progress. In contrast, Dr. Pomm was only in a position to review Petitioner's records. The evidence did not establish sufficient facts upon which it can be concluded that Petitioner suffered an episode of major depression while at Wayne State University. Dr. Val expressed Petitioner's diagnosis as being "major depressive episode, single bereavement feature". Dr. Pomm disagreed with this diagnosis since he believed that she had recurrent episodes of major depression. Although there were slight variations in her diagnosis expressed by Dr. Schwemer, Dr. Benson, and Dr. Moore, it is concluded that the Petitioner's diagnosis as expressed by Dr. Val is an appropriate diagnosis. The evidence established that psychiatric symptoms recur in patients with Petitioner's diagnosis in at least 50 percent of the cases. The symptoms of major depression are a lack of concentration, lack of ability to make decisions, weight loss, lack of interest, sadness, hopelessness, and suicidal thoughts. The degree of impairment varies, but symptoms of major depression always cause some interference in social and occupational functioning. Severe symptoms of major depression that are chronic and do not respond to treatment can affect the ability of a physician to practice medicine. There was conflicting testimony of the likelihood of a recurrence of Petitioner's depression and whether her ability to safely practice medicine within the State of Florida would be compromised by a recurrence. The greater weight of the evidence established that while symptoms of major depression recur in over fifty percent of the cases, there is little likelihood that the symptoms would recur to the extent that her ability to practice medicine safely would be compromised. The testimony established that chronic, unresponsive cases of major depression that produce symptoms of depression so severe that a physician's ability to safely practice would be compromised occur in approximately 4 percent of the patients with major depression. Those type symptoms have not occurred in Petitioner, and there was no competent evidence to establish that Petitioner's ability to practice medicine has ever been compromised by her episode of major depression, even when she was taking medication and undergoing psychotherapy. In reaching his conclusion that there is no psychiatric impediment to Petitioner's unconditional licensure, Dr. Val considered that her episode of major depression was triggered by the death of her brother, that Petitioner had no family history of major depression, that Petitioner progressed while on medication and while undergoing psychotherapy, that none of the medications she took are addictive or have lasting side effects, and that she had been off all medication without recurrence of any symptoms since June 1992. Dr. Val's prognosis of Petitioner's condition that there is no psychiatric impediment to Petitioner's unconditional licensure, which is consistent with the opinions of Dr. Schwemer, Dr. Benson, and Dr. Moore, is found to be persuasive. DR. GOETZ - THE PRN Dr. Goetz has been the Director of the PRN since 1985. The program is funded through the Florida Department of Business and Professional Regulation and is designed to assist impaired physicians and other health care providers. Dr. Goetz is a member of the Federation of State Medical Boards and frequently testifies before and consults with the Board of Medicine. Dr. Goetz was tendered and accepted as an expert in the PRN impaired practitioner program. His expertise is in the monitoring of health care workers, whether they have physical, mental or infectious disease processes. Monitoring contracts outline the requirements to protect the public and assure the physician's continued well- being. These contracts provide, in appropriate cases, additional assurance to the Boards than an individual will not endanger himself or the public. In addition, the PRN can be a resource for assistance for physicians who are impaired, whether the impairment is from addiction or illness. Dr. Goetz recommended to the Board of Medicine that Petitioner establish a psychiatric contract with the PRN program if she was granted a license. The reasoning for this recommendation is based on Petitioner's psychiatric history. Dr. Goetz is of the opinion that an advocacy contract will help Petitioner and provide a safeguard to the public. He believes that her establishment of a practice in Florida will likely create stress and that Petitioner's illness could impair her ability to practice safely if her symptoms were to recur. Part of his rationale for his initial recommendation to the Board of Medicine is no longer valid since Petitioner is no longer undergoing psychotherapy and she is no longer on medication. Although it is possible that Petitioner could experience symptoms that would compromise her ability to practice medicine safely, that possibility was shown to be remote. The evidence in this proceeding established that, under appropriate circumstances, a PRN "advocacy" contract can benefit the physician and protect the public. The PRN assures insurance companies, health maintenance organizations, and other providers, that an individual physician can safely practice medicine. The contract provides advocacy for hospital privileges, staff privileges and licensure. A PRN contract requires a treating psychiatrist to notify PRN if there is a change in the licensee's medication, if there is a cessation of therapy or a change in treating professionals, and if the licensee fails to cooperate in the therapeutic process by failing to appear for appointments or take medications. The evidence also established that a PRN contract is a condition that burdens a license to practice medicine and that the imposition of such a contract affects the substantial interests of an applicant. In addition to the condition that Petitioner enter into a contract with the PRN, Respondent proposes to impose a condition of licensure that Petitioner practice for a period of one year under the indirect supervision of a Board approved physician who practices in her speciality area and that Petitioner's practice be pursuant to a plan that is approved by the Board. There is a further condition that Petitioner's supervising physician be required to submit quarterly written reports which addresses Petitioner's practice activities and ability. There was no explication of the Respondent's position that Petitioner's psychiatric history, her medical education, or the nature of her present medical practice justify the imposition of these conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure by endorsement to practice medicine in the State of Florida be granted without condition. DONE AND ENTERED this 14th day of April, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 April, 1994.
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.
